R v John Doak

In assessing criminal legal aid remuneration for Court of Appeal work, the appropriate officer must apply a case-specific assessment of the TONG factors in the context of reasonable remuneration under Schedule 3 to the Criminal Legal Aid (Remuneration) Regulations 2013.

Comparisons with other claims, reliance on the Independent Review of Criminal Legal Aid, and counsel’s previous familiarity with the case are not appropriate determinative methods for fixing the hourly rate. An appeal hearing fee is intended to operate as a brief fee and may include preparation, attendance, travel and necessary post-hearing work. On the facts, rates of £225 per hour and a £1,000 hearing fee were reasonable.

The appellant represented the defendant in successful appeals against conviction and sentence in the Court of Appeal. The appeals concerned a conviction arising from the historic assault of the defendant’s infant son and were heard many years after the original proceedings.

The appellant claimed £7,324.25, calculated at £225 per hour together with a £1,000 appeal hearing fee. The Determining Officer allowed £4,845, applying a rate of £150 per hour and allowing £575 for the hearing.

The appeal under regulation 29 concerned the appropriate hourly rate and the proper assessment of the appeal hearing fee.

1. The appeal was allowed on both issues. The claim was directed to be reassessed in the total sum of £7,324.25, plus any relevant VAT.

2. Under Schedule 3 to the Criminal Legal Aid (Remuneration) Regulations 2013, remuneration must be assessed by considering all relevant circumstances, including the nature, importance, complexity and difficulty of the work and the time involved. The assessment must allow reasonable remuneration for work actually and reasonably done.

3. The appropriate methodology for fixing counsel’s hourly rate was a case-specific application of the TONG factors. A specific comparison with the claims in Lawrence and Walker was flawed and did not provide an appropriate basis for determining the rate in an individual case.

4. The Determining Officer should not place determinative reliance on Sir Christopher Bellamy’s Independent Review of Criminal Legal Aid. The review did not provide a logical or reasonable basis for fixing counsel’s reasonable hourly rate.

5. Counsel’s previous familiarity with the case could affect the number of hours reasonably required, but was not an appropriate factor for substantially reducing the hourly rate where the appeal required substantial high-level input.

6. The appeal was unusual and difficult. Its importance, the delay, the complex and voluminous expert evidence, the specialist legal issues and the tragic circumstances justified the claimed rate of £225 per hour.

7. The £1,000 appeal hearing fee was also reasonable. The appearance fee was intended to mimic a brief fee and therefore included preparation as well as attendance. Travel and necessary post-hearing attendance could also be taken into account.

8. The appellant was awarded £1,575, plus any relevant VAT, for the appeal costs, in addition to repayment of the £100 appeal fee.

• High Court (Senior Court Costs Office): appeal under regulation 29 allowed against the Determining Officer’s assessment. The hourly rate and appeal hearing fee were increased, and the claim was directed to be reassessed.
• Criminal Appeal Office: the Determining Officer allowed £4,845, comprising 28.33 hours at £150 per hour and £575 for the appeal hearing.