R v Kyi-Reece Sylvester

For an additional payment for considering unused material under Criminal Legal Aid (Remuneration) (Amendment) Regulations 2020, the court must assess the claimed hours reasonably, having regard to the case as a whole and to the unused material itself.

There is no proper standard allowance based on a fixed number of seconds or minutes per page. The volume, density and significance of the material vary. Work described as updating a witness list or drafting a chronology may constitute consideration of unused material where, as a matter of fact, it records the advocate’s reading and engagement with that material. A broader interpretation of the phrase may be desirable, although that point was not necessary to the decision.

The appellant, counsel representing a defendant charged with murder and robbery, claimed an additional graduated fee for considering 7,036 pages of unused material. He claimed 40.25 hours beyond the three-hour threshold.

The determining officer allowed 14.25 hours, construing consideration of unused material narrowly and treating entries such as updating a witness list and drafting a chronology as work outside the relevant provision. The appeal under regulation 29 concerned the proper assessment of the claim and, in particular, whether the work log recorded compensable consideration of unused material.

1. Appeal allowed. The appellant’s claim for considering unused material was allowed at 40.25 hours. Costs of £300 plus any VAT, in addition to the £100 paid on lodging the appeal, were awarded.
2. The court preferred the appellant’s factual interpretation of the work log. Entries such as updating a witness list and drafting a chronology represented his usual notation for reading and considering the unused material.
3. Even on the determining officer’s narrower construction, treating consideration as equivalent to reading, the total claim of 43.25 hours was modest for more than 7,000 pages. The assessment had to address the particular material rather than apply a standard empirical allowance.
4. Allowances based on 30 seconds or one minute per page were flawed. Pages differed in volume, significance and the attention required. The officer’s allowance of 17.25 hours was insufficient for the quantity of material.
5. The court expressed sympathy for a broader interpretation of “consideration of unused material” in paragraph 17A of the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2020, given the notable difference from the earlier reference to reading unused material. That construction was not necessary to the outcome, because the appeal succeeded on the factual interpretation of the work log.

1. High Court (Senior Court Costs Office): Appeal under regulation 29 allowed against the determining officer’s decision. The claim was allowed at 40.25 hours.