R v Bowman & Anor

Under the Criminal Legal Aid (Remuneration) Regulations 2013, electronically served documentary or pictorial exhibits do not automatically count as pages of prosecution evidence. The determining officer or Costs Judge must decide whether inclusion is appropriate, having regard to the nature of the material and all relevant circumstances.

Electronic material may be subdivided. Material which is irrelevant, duplicated, blank, or capable of rapid checking need not be included merely because it was served or considered by the litigator. The appropriate remuneration for work on material excluded from the PPE count may be a special preparation fee. The assessment should be conducted without hindsight and generally by broad categories rather than page by page.

Newton Law Practice, acting for Mr Bowman, and Mandla Bhomra Solicitors, acting for Mr D’Arcy, appealed against determinations of the Legal Aid Agency concerning graduated litigator fees. The appeals concerned the number of pages of prosecution evidence arising from electronic telephone downloads, call data and related material.

The parties agreed that certain paper pages should be included and that parity between the two fee claims was appropriate. The live issue was whether further sections of the electronic evidence should count as PPE, rather than being remunerated through special preparation. The court also considered the effect of the discretion under Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013.

1. The appeals were dismissed on the principal issue, but the court allowed PPE at 3,999 pages for each Appellant and awarded £500 costs of appeal to each Appellant, in addition to the conceded £100 court fee.

2. Paragraph 1(5) of Schedule 2 confers a discretion to include electronically served documentary or pictorial exhibits which never existed in paper form. The discretion requires consideration of the nature of the document and any other relevant circumstances. Relevant considerations include the importance of the material to the prosecution case, the amount and nature of the work required, and whether it required a degree of consideration comparable to paper evidence.

3. Downloaded material need not be treated as one indivisible exhibit. It may be subdivided by category. Whether subdivision is appropriate, and how it should be undertaken, depends on the facts and the statutory discretion.

4. The assessment should be made without hindsight and should generally avoid a page-by-page exercise. A broad-brush assessment may be appropriate, particularly where detailed examination of each page would impose an excessive burden on practitioners, the Legal Aid Agency and the court.

5. On the facts, the disputed images, duplicated timeline, generic reference pages and configurations material were of limited or no relevance, or could be checked rapidly. They did not warrant inclusion as PPE. Their consideration could instead be remunerated by a special preparation fee under paragraph 20 of Schedule 2.

6. The court rejected the Appellants’ claims for substantially higher PPE counts. The appeals were nevertheless properly brought because the Legal Aid Agency made significant late concessions correcting errors in the earlier assessments.

This was an appeal to the Senior Courts Costs Office against determinations and redeterminations by the Determining Officer under the Criminal Legal Aid (Remuneration) Regulations 2013. The judgment does not identify a separate reported lower-court citation.