R v Vavlic

Under the Criminal Legal Aid (Remuneration) Regulations 2013, enhancement above prescribed rates is discretionary. Once exceptional circumstances are established, a 100% enhancement does not follow automatically. The appropriate percentage requires a broad-brush comparison of exceptional cases and consideration of responsibility, care, speed, economy, novelty, weight and complexity.

Work is reasonably chargeable where it is necessary to conduct closely linked parallel proceedings. This may include liaison between separate teams of fee earners, attendance by the solicitor with conduct alongside counsel, and short attendance notes maintained as part of proper professional record-keeping. Timed communications remain subject to objective assessment and may properly be treated as routine.

Cohen Cramer Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against decisions of the Legal Aid Agency’s Determining Officer concerning remuneration for representation in confiscation proceedings under the Proceeds of Crime Act 2002.

The appeal challenged the percentage enhancement, the treatment of attendance, waiting time, internal discussions, short attendance notes, prior-authority memoranda and timed communications. The central issues were whether the work had been reasonably done and whether the Determining Officer had correctly applied the Regulations.

1. Enhancement. The appeal against the 50% enhancement failed. Paragraph 29 of Schedule 2 conferred a discretion, not an entitlement to a 100% uplift once exceptionality was shown. The proper approach was a broad-brush comparison of exceptional cases, taking account of the responsibility accepted, care, speed and economy, and the novelty, weight and complexity of the case. The unusual attempt to introduce alleged assets connected with uncharged criminal conduct did not justify a further enhancement.
2. Waiting for a CVP hearing. The disallowance of one hour and 12 minutes spent waiting in the office to join a hearing was upheld. The circumstances did not prevent other work being undertaken in the same way as attendance at court might.
3. Attendance with counsel. The grade B fee earner’s attendance at the 16 December 2019 hearing was reasonably undertaken. Although the application was relatively routine, the unusual complexity of the case justified attendance by the fee earner with conduct rather than a grade C representative.
4. Discussions between fee earners. Internal discussions were chargeable where the confiscation and duty-evasion proceedings were closely linked and were necessarily handled by different teams. Liaison concerning those parallel proceedings was not merely general case management.
5. Attendance notes. Short attendance notes should not have been wholly disallowed. Proper record-keeping formed part of a solicitor’s professional duties. The notes were allowed as routine items, subject to assessment.
6. Other timed work. The Determining Officer was entitled in principle to treat simple emails, letters and telephone calls as routine, regardless of the time recorded. However, lengthy calls involving waiting for courts or agencies were not fairly characterised as routine. On a broad-brush assessment, timed telephone calls reduced to routine items and memoranda supporting prior-authority applications were allowed at 70% of the time claimed.

The appeal therefore succeeded in part. The appropriate additional payment was to include £500 exclusive of VAT for costs and the £100 appeal payment.

Senior Courts Costs Office: Appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 allowed in part. The Determining Officer’s decisions were varied as to attendance with counsel, internal discussions, short attendance notes and specified timed work.