The Johnson Partnership Solicitors v The Lord Chancellor

For criminal legal aid costs, the appropriate grade of an unqualified fee earner must be assessed by reference to the quality, nature and breadth of the experience actually held when the work was done. There is no fixed qualifying period, and formal qualification is not essential. However, specialised experience in a narrow category of work does not ordinarily amount to the equivalent experience of a qualified solicitor or legal executive with broader criminal-case experience. Routine work may properly be graded at the lower rate even if undertaken by a more experienced fee earner. The assessment remains fact-sensitive and must be based on the evidence supplied.

The appellant firm appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the classification of its unqualified fee earner, Andrea Cowie, as a Grade C rather than Grade B fee earner for confiscation proceedings. The proceedings arose after criminal convictions and sentence, and the confiscation order was made by agreement. The determining officer concluded that Ms Cowie did not have experience equivalent to that of a solicitor or legal executive. The issue was whether, at the time the relevant work was undertaken, her training and experience satisfied the statutory definition of an equivalent Grade B fee earner.

1. Appeal dismissed. The determining officer was correct to classify Ms Cowie as a Grade C fee earner for the relevant confiscation work.
2. Paragraph 26(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, read with regulation 2, requires the fee earner’s grade to be assessed by considering whether the individual had the relevant equivalent experience when the work was carried out. The assessment is not determined simply by the length of employment, age, academic qualifications or present competence.
3. There is no fixed period over which equivalent experience must be acquired. The decisive considerations are the quality, nature and breadth of the experience. Sustained work on demanding cases with limited supervision may enable an unqualified fee earner to progress rapidly to Grade B.
4. Professional training and qualification provide a significant breadth of knowledge and experience. Experience confined largely to confiscation proceedings, particularly where the cases are relatively straightforward and the work remains supervised, may provide valuable specialist knowledge without being equivalent to the broader criminal-case experience contemplated by the Grade B definition.
5. The work in question involved bank statements and schedules and was suitable for Grade C work. The evidence did not establish that Ms Cowie had the necessary equivalent experience when the work was undertaken. Evidence that she worked competently, had increasing responsibility, or was accredited as a police-station representative did not by itself establish equivalence to a solicitor or qualified legal executive.
6. The court recognised that equivalent experience can exist without formal qualification. The approach must nevertheless avoid treating a general assertion of experience as sufficient, since that could undervalue professional qualifications and encourage reliance on untrained or unregulated fee earners.

The appeal was brought to the Senior Courts Costs Office under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from the determining officer’s classification of the fee earner as Grade C. The High Court dismissed the appeal.