R v Nathan Powell

For AGFS remuneration, dates within a preparatory hearing or trial are not automatically trial days. Nor does a court listing as a mention automatically determine the fee. Each disputed hearing must be assessed by reference to whether the work formed a qualitative, substantive part of the preparatory hearing or trial, or dealt only with straightforward procedural matters. A conference fee is payable where the applicable trial-length threshold is met and the conference was reasonably necessary.

Counsel appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency’s assessment of an AGFS claim. The claim concerned a 27-day preparatory hearing and trial arising from an indictment alleging conspiracies to supply Class A drugs and to transfer criminal property. Five disputed hearings had been treated as standard appearances rather than trial days. Counsel also challenged refusal of payment for a conference with the defendant on 1 December 2021.

The central questions were how the disputed hearings should be classified and whether the conference was reasonably necessary.

1. The appeal succeeded in part. The claim was payable as a 22-day trial, with payment for the 1 December 2021 conference. Standard appearance fees remained payable for 9 April, 20 April, 20 May and 28 May 2021.

2. The court rejected the contention that every date between the start and end of the preparatory hearing must automatically be assessed as a trial day. The regulations contemplate hearings within the ambit of a trial, including mentions and bail applications, which may attract different remuneration.

3. Classification is not determined automatically by the court listing. The court must examine each disputed day and decide whether the work undertaken formed a qualitative, substantive part of the preparatory hearing or trial, or dealt only with relatively straightforward procedural direction.

4. The hearing on 1 March 2021 was sufficiently complex, including work concerning evidence disputed by the prosecution and defence, to justify a trial-day fee.

5. The hearings on 9 April, 20 April, 20 May and 28 May 2021 were straightforward procedural hearings. They concerned progress updates, confirmation of readiness, progress in identifying and instructing an expert, and concerns about expert access to digital material. No substantive progress was made, so they were not trial days.

6. The conference on 1 December 2021 was reasonably necessary. As the resulting claim was for a 22-day trial, both limbs of paragraph 19(3) of Part 5 to Schedule 1 were satisfied and the conference fee was payable.

7. Costs of £250, plus any VAT, were awarded in addition to the £100 already paid to lodge the appeal.

The appeal was brought from the Determining Officer’s assessment for the Legal Aid Agency. The officer treated the disputed hearings as standard appearances and assessed the claim as a 21-day trial. The High Court (Senior Court Costs Office) varied that assessment, directing payment as a 22-day trial and payment for the conference.