Regina v Gary Forbes & Anor.

A defendant’s costs order does not authorise recovery of legal costs from central funds unless the statutory conditions are satisfied. Where legal costs are intended to be recoverable, the order must contain the statement required by Prosecution of Offences Act 1985, section 16A(8), and the relevant determination of financial ineligibility must have been made. A court will not retrospectively dispense with those requirements on the basis that the determination would probably have been obtained had the proper application been made. Statutory safeguards cannot be set aside as a mere technicality where Parliament has prescribed them as conditions of recovery.

Following their acquittal after trial in the Crown Court, the defendants obtained defendants’ costs orders directing that costs be met from central funds, subject to assessment. Their solicitors submitted a claim comprising entirely legal costs. The Determining Officer refused the claim because no determination of financial ineligibility had been obtained during the proceedings and the costs orders contained no statement authorising recovery of legal costs.

The solicitors appealed under the applicable criminal costs regulations. They argued that the court should direct assessment because the defendants would inevitably have been found financially ineligible had proper legal aid applications been made. The issues were whether the appeal was within the court’s jurisdiction and whether the statutory requirements for recovering legal costs could be waived.

1. Jurisdiction. The appeal was within the court’s jurisdiction. Valid defendants’ costs orders had been made, a bill had been submitted in accordance with those orders, and the Determining Officer’s refusal gave rise to a right of appeal.
2. Statutory conditions. Under section 16A of the Prosecution of Offences Act 1985, a defendants’ costs order cannot require payment from central funds of legal costs unless an applicable statutory condition is met. For an individual whose order is made under section 16(2), condition D requires a determination of financial ineligibility by the Director of Legal Aid Casework. Where legal costs are included, section 16A(8) requires the order to contain a statement to that effect. Legal costs include fees, charges, disbursements and other amounts payable for advocacy or litigation services, including expert witness costs.
3. The costs orders contained no statement under section 16A(8). As a matter of legal effect, they therefore did not provide for recovery of legal costs. The required determination was an important formality and safeguard, rather than an dispensable technicality. A retrospective declaration based on an online calculator could not substitute for the determination required by Parliament.
4. The court rejected reliance on the dictum in Evelyn Viscountess de Vesci & Others v O’Connell [1908] A.C. 298 as a basis for disregarding the statutory requirements. The solicitors had had ample time to make the necessary applications through a contracted legal aid provider. The regulatory scheme, although complex, could not be set aside merely because compliance might have produced the same practical result.
5. The appeals were dismissed.

• High Court (Senior Court Costs Office): Appeal from the Determining Officer of the Legal Aid Agency under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 and Regulation 10 of the Costs in Criminal Cases (General) Regulations 1986. The appeals were dismissed.