Regina v Onwu

An appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 must be filed within the prescribed period. An appeal filed out of time without an application for an extension must be dismissed.

Enhancement above prescribed rates requires genuinely exceptional circumstances. Exceptional competence, complexity or despatch is assessed by reference to the work and circumstances of the particular case. A substantial reduction in the prosecution’s benefit figure, compliance with a tight but manageable timetable, work undertaken at weekends, or the sophistication of the underlying conspiracy does not, without more, establish exceptionality.

The appellant solicitors represented the defendant in confiscation proceedings under the Proceeds of Crime Act 2002. They claimed enhanced remuneration and payment for 140.9 hours spent reviewing 6,995 pages of trial documents.

The Determining Officer allowed 119.1 hours for document review but refused enhancement. The appellant appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The appeal was filed eight days outside the 21-day period following provision of the Determining Officer’s written reasons, without an application for an extension. The central issues were whether the appeal was out of time, whether enhancement was justified, and whether the time allowed for document review was reasonable.

1. Timing. The Determining Officer’s written reasons were supplied on 23 December 2021. Under regulation 29(2) of the Criminal Legal Aid (Remuneration) Regulations 2013, the appellant had 21 days to appeal. The appeal filed on 21 January 2022 was eight days late. Time did not run from the later supply of copies of decisions mentioned in the reasons. No extension was requested, so the appeal was dismissed.
2. Alternative merits. Even if the appeal had been in time, it would have failed. Paragraph 29 of Schedule 2 permits enhancement only where, considering all relevant circumstances, the work involved exceptional competence, skill or expertise, exceptional despatch, exceptional complexity or other exceptional circumstances. The assessment of the percentage enhancement must have regard to responsibility, care, speed, economy, novelty, weight and complexity.
3. A substantial reduction in the prosecution’s benefit figure was not, by itself, evidence of exceptional competence. The work remained a diligent and effective analysis of whether goods had been delivered, rejected or otherwise excluded from the defendant’s benefit. The sophistication of the wider fraud did not establish exceptional complexity in the defendant’s own confiscation case.
4. Exceptional despatch is assessed by reference to the facts of the particular case. Compliance with a tight but manageable timetable, work undertaken at weekends, and comparison with the inactivity of previous solicitors did not establish exceptional despatch. The work allowed was capable of being completed within the available period.
5. The allowance for document review was a broad-brush assessment of the relevant material seen by the Determining Officer. There was no basis for interfering with it. The appellant had not explained why substantial time was reasonably required for telephone records unrelated to the defendant or interviews with other defendants.

The appeal was dismissed.

1. Determining Officer: Allowed 119.1 hours for reviewing substantive trial documents and refused a claimed 75% enhancement.
2. High Court (Senior Court Costs Office): The appeal under regulation 29 was filed out of time and dismissed. The court held, in any event, that it would have failed on the merits.