DAS UK HOLDINGS LIMITED v ASPLIN and Others

Costs recoverable from central funds under section 17 of the Prosecution of Offences Act 1985 are compensatory, but only expenses properly and reasonably incurred are recoverable. The assessment does not involve a proportionality test.

Fixed fees are assessed principally by reference to the circumstances known when the fee was agreed. Counsel’s attendance fees in a complex prosecution may reasonably be assessed by standard half-day or full-day rates. Large commercial disbursements may be assessed broadly, provided there is sufficient evidence of the work done and the court makes a value judgment on reasonableness. Investigation costs and work with dual utility may be recoverable where the work was useful and relevant to the prosecution and its need was attributable to the defendants’ conduct.

DAS brought a successful private prosecution for conspiracy to defraud. The Crown Court ordered that its prosecution costs be paid from central funds under section 17 of the Prosecution of Offences Act 1985. The Legal Aid Agency’s Determining Officer substantially reduced or disallowed several counsel fees, disclosure and investigation costs, and other disbursements.

DAS appealed under regulation 10 of the Costs in Criminal Cases (General) Regulations 1986. The issues included the proper approach to fixed fees, counsel’s attendance fees, broad-brush assessment of expert disbursements, the recoverability of investigation costs, and the application of the Singh discount.

1. Appeal and redetermination. The appeal succeeded in part. Under regulation 10(12) of the Costs in Criminal Cases (General) Regulations 1986, the Costs Judge could reassess the relevant items rather than remit them. The court therefore redetermined the challenged fees and disbursements itself.
2. Applicable test. Section 17 of the Prosecution of Offences Act 1985 and regulation 7 required recovery of expenses actually and reasonably incurred and reasonably sufficient to compensate the prosecutor. The regime was not subject to proportionality. The Determining Officer therefore erred by treating proportionality, public-purse considerations, or performance-based penalties as controlling considerations.
3. Counsel fees. A fixed fee was to be assessed primarily by reference to the circumstances known when it was agreed, rather than retrospectively by reference to the eventual course of the case. It was reasonable to retain leading counsel on the agreed fixed fee. Counsel’s interlocutory appearances and refreshers could reasonably be assessed by standard half-day or full-day rates, recognising preparation, travel, conferences and hearing time.
4. Disbursements. Large expert or commercial disbursements did not require solicitor-style itemisation. Where evidence established the work undertaken, the court could use a broad-brush assessment and make a sensible approximation based on a value judgment. The Determining Officer’s use of inter partes guideline rates and her proportionality analysis were wrong.
5. Dual-purpose work and investigation. Work benefiting both a regulatory investigation and the prosecution was recoverable where it was useful and relevant to the prosecution and the need for it was attributable to the defendants’ conduct. Investigation costs were prima facie costs incurred in the criminal proceedings and were recoverable if reasonably incurred.
6. Singh discount. A broad-brush reduction could be permissible after an audit exercise, but it had to be comprehensible and undertaken by reference to identifiable classes or categories of work. The unparticularised reduction of Rebecca Chalkley’s hours was unsustainable.
7. Orders. The court allowed the principal counsel, disclosure, accounting and investigation claims in whole or in part. Noting briefs were disallowed. Emily Campbell’s fee was allowed at £1,750. The total PwC claim was assessed at £1,318,713.10 and the challenged EY work at £1,047,082.50.

The appeal was brought from determinations and redeterminations by the Legal Aid Agency’s Determining Officer. The High Court (Senior Court Costs Office) reassessed the challenged items under regulation 10(12) of the Costs in Criminal Cases (General) Regulations 1986.