The Lord Chancellor v Lam & Meerbux Solicitors

When determining a litigator’s graduated fee, electronically served evidence which has never existed in paper form is included as pages of prosecution evidence only through the statutory exercise of discretion. The page count recorded on the Crown Court Digital Case System is merely a starting point.

The determining officer may examine the content of an electronic exhibit and use a sensible approximation to exclude blank or data-free pages. The controlling aim is appropriate remuneration: payment should reflect material requiring consideration while avoiding substantial payment for work which was not undertaken. A mechanically generated count from an artificial print-preview document need not be used where conversion has produced an unreliable and inflated figure.

The respondent solicitors represented a defendant in Crown Court proceedings and claimed a graduated fee based on 9,756 pages of prosecution evidence. Several electronic exhibits were PDF versions of spreadsheet print previews. Their conversion had generated thousands of blank, almost blank or uninformative pages.

The determining officer excluded 2,553 pages and assessed the fee by reference to 3,798 pages. Costs Judge Whalan held that, once the electronic material was substantively relevant, the formal page count recorded on the Digital Case System should be used without a further deduction for blank or duplicate pages. The Lord Chancellor appealed under regulation 30(5) of the Criminal Legal Aid (Remuneration) Regulations 2013.

Following a concession concerning duplicated material, the central issue was whether paragraph 1(5) of Schedule 2 permitted the determining officer to exclude blank pages and adopt a proportionate approximation rather than the recorded Digital Case System count.

1. Appeal allowed. Costs Judge Whalan had erred by holding that the determining officer’s statutory function did not extend to deciding whether blank pages should count as pages of prosecution evidence. His order was set aside and the determining officer’s order was restored, subject to the Lord Chancellor’s concession concerning duplicated material.

2. Paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 creates a broad discretion for electronic documentary or pictorial exhibits which have never existed in paper form. Unlike paper evidence, such material is not included automatically. The appropriate officer must decide whether inclusion is appropriate by considering the nature of the document and every other relevant circumstance.

3. The statutory distinction between paper and electronic evidence would be deprived of effect if the Digital Case System count operated as a blanket allowance. The report’s count is a starting point only. The discretion is an important control mechanism against inappropriate expenditure of public funds, including substantial payment for blank pages which required no consideration.

4. The discretion does not require a rigid, binary decision whether to include or exclude an electronic document in its entirety. The officer may examine its substantive content and conclude that only a proportion of its pages should count. Where exact calculation would be disproportionate or impracticable, a broad-brush or sensible approximation is permissible. The possibility of disagreement about the precise number of blank pages does not justify counting every page.

5. No prescribed method of counting electronic pages appears in the Regulations. An officer therefore need not use a mechanically generated Digital Case System figure where it derives from an artificial conversion document and fails to represent the work undertaken. Here, converting spreadsheet print previews to PDF had split data across many pages and created extensive blank or meaningless material. That count was unreliable and would have produced substantial overpayment.

6. Proportionality remains relevant. It may be inappropriate to investigate a small number of blank pages where doing so is not worth the effort. The presence of extensive blank material, however, may properly justify exclusion. Detailed consideration of relevant electronic material excluded from the page count may instead support a special preparation claim.

7. The correct count was 5,014 pages, producing a graduated fee of £47,550.10. The parties were directed to prepare a draft order.

1. High Court (King’s Bench Division): The Lord Chancellor’s appeal under regulation 30(5) of the Criminal Legal Aid (Remuneration) Regulations 2013 was allowed. Costs Judge Whalan’s order was set aside, and the determining officer’s assessment was restored subject to the concession concerning duplicated material.

2. High Court: By an order dated 14 November 2022, Sir Stephen Stewart held that the Lord Chancellor’s appeal was in time.

3. Senior Courts Costs Office: On 7 July 2022, Costs Judge Whalan allowed the solicitors’ appeal and held that the formal Digital Case System page count should be used once the electronic material’s substantive relevance had been accepted.

4. Legal Aid Agency: The determining officer excluded blank or almost blank pages generated by spreadsheet print previews and initially assessed 3,798 pages of prosecution evidence. The Lord Chancellor later conceded that duplicated pages should be included, increasing the correct count to 5,014.