R v Dylan Whiting

Under regulation 31 of the Criminal Legal Aid (Remuneration) Regulations 2013, a time limit for submitting an AGFS claim may be extended for good reason. In exceptional circumstances, a further extension may be granted where the representative lacked good reason for the delay, but the court must consider whether the fees should be reduced and must give the representative a reasonable opportunity to show cause.

In assessing delay caused by the Covid-19 pandemic, the relevant period may extend beyond the formal restrictions where the evidence shows a continuing administrative deficit. A broad-brush assessment may be appropriate. The applicable deduction must reflect the period of delay after the good-reason extension, rather than the total period from the original deadline.

GT Stewart Solicitors Ltd appealed under regulation 29 against a Legal Aid Agency determination concerning an Advocate’s Graduated Fees Scheme claim. The firm represented Dylan Whiting in an appeal against sentence, which concluded on 18 September 2020.

The claim was submitted on 29 November 2022, approximately 26 months later. The Legal Aid Agency accepted good reason for part of the delay and exceptional circumstances for the remainder, but applied a 20% deduction under its late-submission policy. The central issue was the period to which the good-reason extension applied and, consequently, the correct level of fee deduction.

1. The appeal was allowed in part. The AGFS claim was allowed subject to a late-submission penalty of 5%, and the Appellants were awarded £200 plus any VAT payable, together with repayment of the £100 appeal payment.

2. Regulation 4 of the Criminal Legal Aid (Remuneration) Regulations 2013 requires claims to be submitted within three months of the conclusion of proceedings. Regulation 31(1) permits the time limit to be extended for good reason. Regulation 31(2) permits an extension in exceptional circumstances where the representative failed to comply without good reason, while requiring consideration of a fee reduction and a reasonable opportunity to show cause.

3. The Determining Officer was entitled to find good reason followed by exceptional circumstances, but gave no specific reason for ending the good-reason period on 19 March 2021. The third lockdown began on or about 4 January 2021, and restrictions were progressively relaxed until approximately July 2021. The continuing administrative consequences of the pandemic could reasonably persist beyond the formal restrictions.

4. Having regard to the Appellants’ size, efficient administration, high volume of comparatively low-value legal aid work and continuing post-Covid deficit, the good-reason extension should run to the end of 2021. The exceptional-circumstances delay therefore began at the start of 2022.

5. Because the claim was submitted at the end of November 2022, the relevant delay fell within the 9–12 month bracket of the Respondent’s reasonable sliding-scale policy. A 5% deduction, rather than 20%, was therefore appropriate.

The judgment records an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from a Legal Aid Agency Determining Officer’s decision, upheld on redetermination. The High Court (Senior Court Costs Office) varied the fee deduction from 20% to 5%.