R v Walker

Assessment of publicly funded criminal defence fees is case-specific. The decision-maker must consider all relevant circumstances, including the nature, importance, complexity and difficulty of the work, and allow reasonable remuneration for work actually and reasonably done.

Familiarity with the case may reduce the hours reasonably required, but does not necessarily justify a substantial reduction in the hourly rate where the work still requires significant high-level input. Generalised hourly-rate calculations derived from average annual earnings are of limited assistance where the statutory assessment requires attention to the particular case.

A fee structure allowing preparation to include the first day of a hearing does not require attendance to be absorbed into the preparation fee in every case. Where attendance is not included, it must be remunerated separately or in addition to the preparation fee.

This was an appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the assessment of fees payable to David Emanuel KC for representing a defendant in a successful appeal against conviction.

The Determining Officer accepted the time spent on preparation and written work but reduced the claimed hourly rate from £220 to £200 and disallowed a separate fee for attendance at the appeal hearing. The appeal concerned a complex murder conviction involving disputed medical evidence and causation. The central issues were whether the reduced hourly rate provided reasonable remuneration and whether attendance at the hearing should attract separate payment.

1. Appeal allowed. The fees were to be adjusted to allow the claimed hourly rate of £220 and the separate £750 fee for attendance at the appeal hearing. The Appellant was also awarded £1,552 for the reasonable costs of the appeal, including the court fee.
2. Paragraph 1 of Schedule 3 to the Criminal Legal Aid (Remuneration) Regulations 2013 required the assessment to take account of all relevant circumstances, including the nature, importance, complexity and difficulty of the work and the time involved, and to allow a reasonable amount for work actually and reasonably done.
3. The approach in Simpson’s Motor Sales (London) Ltd v Hendon Corporation [1965] 1 WLR 112, as discussed in Evans v The Serious Fraud Office [2015] EWHC 1525 (QB), provided useful guidance. The assessment remained fact-specific and required the costs judge to use knowledge and experience.
4. The Determining Officer was entitled to consider familiarity with the case when assessing the hours reasonably required. Familiarity did not necessarily justify a substantial reduction in the hourly rate where the appeal involved substantial, high-level work. The appeal was complex, difficult and serious, and £220 per hour was reasonable and not excessive.
5. Average annual earnings drawn from the 2021 review were not a reliable basis for determining the appropriate rate in a case-specific statutory assessment. The review itself recommended a substantial increase in legal-aid remuneration.
6. Paragraph 6(2) of Schedule 3 provided a structure for claiming preparation fees. The fact that the basic fee could include the first day of a hearing did not make inclusion mandatory in every case. Since the preparation and written-work hours had been accepted as reasonable and did not include attendance at the hearing, the Appellant should receive the additional £750 attendance fee.

• Determining Officer: reduced the hourly rate from £220 to £200 and disallowed a separate attendance fee.
• High Court (Senior Court Costs Office): allowed the appeal, restored the £220 hourly rate, allowed the £750 attendance fee and awarded £1,552 in appeal costs.