R v Peter Metcalf

When assessing costs from central funds, the question is whether it was reasonable for the defendant to instruct the counsel used. The availability of alternative counsel, or the possibility that fewer or more junior lawyers could have conducted the case, is not the governing test. The assessment must consider the case’s size, weight, complexity and all relevant circumstances.

In an exceptionally document-heavy prosecution, instructing a third junior counsel may be reasonable where that counsel is primarily responsible for reviewing, analysing and scheduling disclosure. Recovery remains limited to work properly attributable to that role and to a reasonable remuneration. A broad assessment may be required where hourly billing does not reflect conventional brief fees and refreshers.

Mr Peter Metcalf appealed under regulation 10 of the Costs in Criminal Cases (General) Regulations 1986 against a Legal Aid Agency determination refusing, in principle, the fees of a second junior counsel.

The prosecution arose from the Hillsborough Stadium disaster and involved extensive documentary material, numerous preliminary hearings and a substantial trial. Mr Metcalf was acquitted after the prosecution case was held to disclose no case to answer, and his costs were ordered to be paid from central funds.

The principal issue was whether it was reasonable to instruct a third counsel, and, if so, what remuneration and time should be allowed.

1. The appeal succeeded in substance. The governing question under section 16 of the Prosecution of Offences Act 1985 was whether the defendant was reasonable in instructing the counsel used. The assessment was not determined by whether other counsel, fewer counsel or more junior counsel could have conducted the case. Relevant considerations included the size, weight, complexity and all the circumstances of the case.

2. The case involved an exceptional volume of documentation arising from several judicial inquiries. It was necessary for somebody to review, analyse, prioritise and schedule the disclosure and prepare chronologies. Given Mr Kong’s experience, it was reasonable for that work to be undertaken by a junior counsel rather than a paralegal. His familiarity with the documents also had practical value at trial and enabled him to cross-examine some witnesses.

3. Instructing three counsel was therefore reasonable to the extent that the third counsel was primarily responsible for disclosure review, analysis and scheduling, related conferences and attendance at trial. Work on skeleton arguments and similar advocacy preparation would ordinarily be undertaken by the leader and principal junior and did not, by itself, justify a third counsel.

4. An hourly rate of £50 was reasonable. The trainee rate was inappropriate because the work required counsel of Mr Kong’s experience, and the exceptional volume of disclosure justified a departure from the prescribed rates under paragraph 3.2(4) of the Lord Chancellor’s rates and scales document.

5. The claimed 7,500 hours was excessive. Taking account of conventional brief-fee practice, the reduced responsibility of a second junior and the work actually undertaken, 5,000 hours at £50 per hour, producing £250,000, was reasonable. The appeal costs were assessed at £28,000 plus any VAT payable.

The appeal was brought against a determination by a Case Manager in the Criminal Cases Unit of the Legal Aid Agency. The High Court (Senior Court Costs Office) allowed the appeal to the extent described in the judgment and ordered an additional payment, together with the £100 appeal fee and assessed appeal costs.