R v Firth

An extension of time under regulation 31 of the Criminal Legal Aid (Remuneration) Regulations 2013 requires a good reason. In the absence of a good reason, an extension may be granted only in exceptional circumstances. The evidence must explain the whole period of delay and address the particular steps that were missed. General difficulties caused by the Covid-19 pandemic, staff shortages, administrative oversight or competing priorities will not ordinarily justify a very substantial retrospective extension where they do not explain the delay in filing the appeal. Guidance developed under an earlier payment regime cannot be applied mechanically to appeals under the separate graduated fee scheme.

Ashcott Solicitors represented Jake Firth before the Crown Court and sought to appeal a Legal Aid Agency Determining Officer’s redetermination of the graduated fee payable. The written reasons were dated 7 June 2021, but the appeal notice was filed on 11 August 2022, approximately 13 months late.

The applicant relied on the Covid-19 pandemic, illness, staff shortages, audits and review work. It sought an extension under regulation 31 of the Criminal Legal Aid (Remuneration) Regulations 2013. The central issues were whether there was a good reason for the delay and, if not, whether exceptional circumstances justified extending time.

1. The application for an extension of time was refused. The appeal had not been filed in time and would not be heard.
2. Regulation 31 permits an extension where there is good reason. Where there is no good reason, an extension remains possible only in exceptional circumstances, with the potential for a reduction in fees after the representative has had a reasonable opportunity to show cause.
3. The applicant’s evidence did not explain the entire 13-month delay. Much of it concerned events before the Determining Officer’s written reasons and did not explain why the applicant could complete the redetermination process but could not file the relatively straightforward appeal notice using substantially the same material.
4. The court required more detailed and cogent evidence addressing the particular delay, including when the decision to appeal was made and why an extension was not requested earlier. Administrative oversight or giving priority to other work, even during difficult conditions, did not amount to good reason or exceptional circumstances.
5. The approach in R v Grigoropolou & Others was not applied as a basis for allowing the application. The earlier ex post facto regime involved a substantially heavier burden, and the graduated fee scheme was a standalone regime. Its treatment of late payment claims could not be used mechanically to justify a 13-month extension for an appeal subject to a 21-day time limit.
6. A retrospective application could not improve upon the position that would have existed had an extension been requested in good time. An extension of 13 months would not have been granted prospectively.