Regina v Deinde-Labiyi

When assessing prosecution evidence containing images under the Litigators Graduated Fee Scheme, the relevant page count must reflect the form in which the prosecution served the evidence. Where images were served individually and a proportion is allowed because only some are relevant, the proportion is calculated by reference to the number of images, rather than a solicitor-created PDF containing multiple thumbnail images per page. A solicitor’s subsequent formatting of the evidence cannot reduce the recoverable page count. Where the evidence requires consideration of images in a larger format than thumbnails, the determining officer must assess the images on that individual basis.

Newgate Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the number of pages of prosecution evidence allowed in calculating the graduated fee for representing Elizabeth Deinde-Labiyi.

The prosecution served a telephone download containing 18,914 images. The solicitors created a PDF containing those images, running to 1,966 pages. The determining officer allowed 10 per cent of the PDF pages, namely 199 pages, following the approach in R v Sereika. The central issue was whether the 10 per cent should instead be calculated by reference to the 18,914 individual images.

1. The appeal was allowed. The graduated fee was to be recalculated on the basis of 1,891 pages of prosecution evidence, rather than the 199 pages allowed.
2. The approach in R v Sereika permits a determining officer or costs judge to adopt a broad assessment and allow only a proportion of images where only that proportion is of real relevance to the case. The court treated the images in Sereika as having been considered individually, notwithstanding references there to pages of images. This was consistent with the principle of rough justice in costs assessment identified in In re Eastwood [1974] 3 WLR 454.
3. In the present case, the accepted proportion was 10 per cent. The relevant denominator was the 18,914 images served by the prosecution. Calculating 10 per cent of the solicitor-created PDF pages would amount to a further reduction because each page contained approximately ten images, producing only about 1 per cent of the images.
4. Where a prosecution extraction report supplies thumbnail images, the proportion may be calculated by reference to pages. The apparent difference between that approach and Sereika is explained by the solicitors’ entitlement to argue for individual payment where the case requires consideration of images in a larger format than thumbnails.
5. The determination must be based on the evidence provided by the prosecution. The solicitors’ subsequent creation of a PDF containing thumbnail images could not provide a basis for reducing the Sereika calculation. The solicitors were awarded the costs of the appeal, including the court fee.

1. High Court (Senior Courts Costs Office): appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 allowed. The graduated fee was remitted for recalculation using 1,891 pages of images, and appeal costs were awarded.