R v Nelson

When construing a representation order made for publicly funded criminal proceedings, the order must be read consistently with the Criminal Legal Aid (Remuneration) Regulations 2013. Authorisation for an application’s presentation or attendance ordinarily includes preparation work necessarily attendant on that application. The determining officer must allow reasonable remuneration for all work actually and reasonably done.

A brief fee should not be calculated purely by applying an hourly rate. It must reflect the relevant circumstances, including the nature, importance, complexity and difficulty of the work and the time involved. VHCC rates and privately funded comparators are not appropriate measures for publicly funded work. Exceptional circumstances may justify fees above the prescribed rates.

The appellant, counsel, represented a publicly funded defendant in a renewed application for permission to appeal against sentence and in the successful appeal itself. The Court of Appeal subsequently substituted a hospital order with a restriction order.

The determining officer allowed an attendance-only fee for the permission hearing and a brief fee for the substantive appeal. The appellant argued that preparation for the permission hearing fell within the representation order and that the fees allowed did not provide reasonable remuneration. The central issues were the construction of the orders and the appropriate assessment of counsel’s fees under the 2013 Regulations.

1. The appeal was allowed in part. The appropriate fee was assessed at £3,250 for the hearing on 16 January 2020, including all preparation, and £6,000 for the substantive appeal hearing, in addition to the £100 already paid on appeal.

2. Applying the principles summarised in Coward v Phaestos Ltd and others [2021] EWHC 9 (Ch), a court order is construed objectively, by asking what a reasonable person with the relevant background knowledge would understand the court to have meant. Orders made for the purposes of the 2013 Regulations must also be interpreted consistently with those Regulations.

3. Schedule 3, sub-paragraph 6(2)(a), makes preparation an essential element of the basic fee. Schedule 3, sub-paragraph 1(2)(b), requires reasonable remuneration for all work actually and reasonably done. Those requirements are not discretionary. An order authorising the presentation of an application or attendance at court therefore includes preparation necessarily attendant on the application, even without an express reference to preparation.

4. The preparation of a skeleton argument illustrated why presentation and preparation could not be severed as narrowly as the determining officer had suggested. Funding for presentation or attendance ordinarily extends to work falling within the normal scope of a brief fee, but the appellant was entitled to payment for all preparation necessarily attendant on the application.

5. A brief fee must not be calculated solely by reference to an hourly rate. It must reflect all relevant circumstances, including the nature, importance, complexity and difficulty of the work and the time involved. An hourly calculation may be used for illustration. The claimed rate exceeding £200 was too high, while VHCC rates were irrelevant.

6. The court accepted that the case’s exceptional circumstances meant that the prescribed fees would not provide reasonable remuneration within paragraph 9(4) of Schedule 3. Privately funded comparators could provide guidance but were not an appropriate basis for assessing publicly funded work.

• High Court (Senior Court Costs Office): appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 allowed in part. The determining officer’s assessment was varied by awarding £3,250 for the permission hearing and £6,000 for the substantive appeal hearing.