R v Chambers

Time for appealing a graduated-fee determination may be extended for good reason. Where there is no good reason, an extension remains possible only in exceptional circumstances. General evidence that a small legal practice was affected by the Covid-19 pandemic will not suffice for a lengthy retrospective extension unless it explains the whole period of delay and the particular failure to file the appeal. The time limits and criteria under the Criminal Legal Aid (Remuneration) Regulations 2013 must be applied according to the graduated-fee scheme. Earlier policies governing a materially different payment regime cannot justify extending the time for a substantially late appeal.

Ashcott Solicitors represented Andrew Chambers in Crown Court proceedings and sought payment under the Litigators’ Graduated Fee provisions in Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013. The Legal Aid Agency’s Determining Officer issued written reasons for a redetermination on 21 September 2021. The applicant filed its appeal notice on 12 August 2022, approximately ten months late.

The applicant relied principally on staff shortages, illness, Covid-19, audits and peer-review work. The central issue was whether the delay justified an extension under regulation 31.

1. The application for an extension of time was refused. The appeal was filed out of time and would not be heard.

2. Regulations 28 and 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 establish a staged process, including a 21-day period for filing an appeal after receipt of written reasons. Regulation 31 permits extension for good reason. In the absence of good reason, an extension may still be granted only in exceptional circumstances. Any potential reduction of fees requires a reasonable opportunity to show cause.

3. The evidence did not explain the whole ten-month delay. Much of it concerned events before the written reasons were issued, and there was no adequate explanation for why the applicant could complete the redetermination process but not file the relatively straightforward appeal notice. There was also no satisfactory evidence of when the decision to appeal was made or why an extension was not requested earlier.

4. The Covid-19 pandemic created real difficulties, but the evidence showed at most that the practice experienced pressure and administrative problems. Administrative oversight or giving priority to audits did not amount to exceptional circumstances sufficient to justify the retrospective extension sought.

5. R v Grigoropolou & Others was not applied. Its discussion concerned the former, more burdensome payment system under the Criminal Defence Service (Funding) Order 2001. The graduated-fee scheme was a standalone regime, and the earlier approach to late claims could not properly be transferred to a ten-month-late appeal under a 21-day time limit. Each application had to be assessed on its own facts.