R v Dilenardo

On an appeal concerning publicly funded confiscation proceedings, a determining officer may take a broad-brush view of the aggregate time claimed for a class of work. The assessment may be based on experience and need not depend on comparisons with co-defendants’ solicitors. It must, however, take account of the evidence supporting the work and must not be arbitrary.

Excellent or meticulous work may still exceed the amount reasonably recoverable. Enhancements may be allowed for some preparation items but refused for routine or administrative work. Fee-earner grading depends on relevant knowledge and experience, including comparable overseas criminal experience, rather than formal qualification alone.

The appellant solicitors represented the defendant in confiscation proceedings under Part 2 of the Proceeds of Crime Act 2002. They appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against determinations concerning the time allowed for reviewing papers, the grading of a fee earner, enhancements on particular items, and time spent waiting on telephone calls.

The central issues were whether the determining officer had assessed documentary work lawfully, whether the fee earner qualified for Grade B, whether routine items could be excluded from enhancement, and whether waiting time had been reasonably reduced.

1. Document review. The appeal succeeded in part. The determining officer was entitled to assess the aggregate time claimed by applying experience and a broad-brush approach, provided that the supporting evidence was considered. The approach was not arbitrary merely because the officer revised the allowance on redetermination. Following R. v Supreme Court Taxing Office Ex p. John Singh & Co and Miller Gardner (Solicitors) v The Lord Chancellor, individually recorded items may collectively produce an unreasonable total. Meticulous and competent work may nevertheless exceed the amount reasonably recoverable. The allowance was increased from 570 to 625 hours, with the existing 100% enhancement.
2. Reasonableness benchmark. The principles in Francis v Francis and Dickerson remained relevant. Publicly funded costs should not be assessed more stringently than privately funded costs. Reasonableness is judged by reference to a hypothetical private client with adequate, but not limitless, means.
3. Fee-earner grade. The fee earner’s Australian qualification did not determine the issue. Her relevant criminal experience in New South Wales and England, particularly in confiscation work, meant that she was an equivalent senior fee earner with good knowledge and experience of criminal cases. Her work was therefore remunerable at Grade B from 1 November 2019.
4. Enhancement. Under the wording of the 2013 Regulations, enhancement may be allowed for some items or classes of preparation but refused for others. The determining officer was correct in principle to exclude routine or administrative work, applying R v Britton. Enhancement was allowed for the non-routine work of taking instructions on, and investigating, the defendant’s property holdings on 26 and 27 September 2019.
5. Waiting time. The appeal failed on telephone waiting time. It was reasonable to expect a fee earner waiting in an office to undertake other work, including using a loudspeaker, while remaining available for the call.

The appeal was successful in part. The appropriate additional payment was ordered, together with £650 costs exclusive of VAT and repayment of the £100 appeal fee.

The appeal was brought to the High Court (Senior Courts Costs Office) under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from determinations by the Legal Aid Agency’s Determining Officer. The appeal succeeded in part.