Klarks Law Limited v The Lord Chancellor

Under the electronic-evidence provisions of the Criminal Legal Aid (Remuneration) Regulations 2013, material served electronically may count as prosecution evidence pages even where it has never existed in paper form. The appropriate officer or Costs Judge must exercise a qualitative discretion, considering the nature of the material and all relevant circumstances.

Service alone is insufficient. The material must warrant inclusion as prosecution evidence rather than merely requiring review. Relevant considerations include its importance to the prosecution case, its relevance to the defendant, the work required, and whether it duplicates evidence already counted. Material requiring consideration but not the level of scrutiny appropriate to prosecution evidence may instead attract a special preparation fee.

Klarks Law Limited represented a defendant in Crown Court proceedings and claimed remuneration under the Criminal Legal Aid (Remuneration) Regulations 2013. The dispute concerned whether material downloaded from the defendant’s telephone and uploaded as a PDF to the Digital Case System should count towards prosecution evidence pages.

The Determining Officer allowed 2,697 pages. The appellant claimed 4,321 pages. The Legal Aid Agency conceded additional pages before and during the appeal. The central issue was how the discretion concerning electronically served documentary exhibits should be applied to the different sections of the download report.

1. Appeal allowed in part. The Costs Judge allowed a further 59 pages of prosecution evidence and awarded £300 towards the appellant’s costs.
2. Material disclosed only as unused material cannot constitute prosecution evidence pages. However, service may be informal. Material may be served as evidence even where the prosecution does not specifically rely on every part of it, provided it forms part of the evidence and exhibits in the case.
3. Under paragraph 1(5) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, electronically served exhibits which never existed in paper form are excluded unless the appropriate officer considers inclusion appropriate. That discretion requires a qualitative assessment of the material, having regard to its nature and all relevant circumstances.
4. The relevant considerations include the importance and relevance of the evidence, the amount and nature of the work required, who undertook that work, the extent to which the evidence featured in the case, and whether the material would previously have been printed and served. The guidance in Lord Chancellor v Edward Hayes LLP, Lord Chancellor v SVS Solicitors and the Crown Court Fee Guidance was considered in that context.
5. Downloaded telephone material need not be treated as one indivisible whole. Different sections may be assessed separately. Summary information and location material were sufficiently relevant to be included. Calendar, passwords and user-account material did not require the necessary level of scrutiny. Wi-fi network material was allowed after clarification.
6. The timeline was not allowed. It substantially duplicated material already counted, even though it could be convenient to view. Allowing duplicative material as prosecution evidence pages would distort the remuneration scheme. Material requiring general consideration could instead be dealt with by a special preparation fee under paragraph 20 of Schedule 2.
7. The modest success, particularly the failure concerning the substantial timeline claim, justified limiting the costs contribution to £300.

The judgment was an appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 and Regulation 10 of the Costs in Criminal Cases (General) Regulations 1986 from the Determining Officer’s assessment. The Costs Judge varied the assessment by allowing a further 59 pages and awarded £300 in costs.