R v Metab Islam

Special preparation under paragraph 17(1)(a) of the Criminal Legal Aid (Remuneration) Regulations 2013 requires both work substantially exceeding the usual preparation for cases of the same type and a very unusual or novel legal or factual issue. The comparison must be reasonably broad. The relevant measure is the preparation work required, not merely the volume of disclosure. The manner in which material is disclosed may materially increase the work required. No fixed period of normal preparation should be treated as an automatic starting point. Unused material may still justify special preparation because the fee is payable in addition to the graduated fee.

Counsel appealed under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against a determining officer’s refusal of a special preparation claim. The underlying Crown Court case involved four historic rape charges, extensive disclosure served in 17 phases, and numerous allegations by the complainant over approximately 20 years. The appeal concerned whether the case involved a very unusual factual issue and whether the preparation work substantially exceeded that normally required for cases of the same type. A further issue was whether unused material was already included within the graduated fee.

1. Appeal allowed. Counsel satisfied both requirements in paragraph 17(1)(a) of the Criminal Legal Aid (Remuneration) Regulations 2013.
2. The expression cases of the same type requires a reasonably broad comparison. The assessment must not be reduced to an artificially narrow category. The volume of documentation alone was insufficient, but the 30 allegations spanning two decades, together with the substantial bad-character argument and ruling, constituted a factual issue outwith usual professional experience.
3. The relevant criterion is the work involved in preparation, rather than the number of pages disclosed. Material served piecemeal may require materially more work because it must be compared with earlier disclosure. The level of the graduated fee is not a proper measure of whether the additional preparation was substantial.
4. Following R v Jones [2007] 6 Costs LR 873, the court took account of ordinary preparation time but did not adopt a fixed normal preparation period. The 17 phases of disclosure, historic records, and the extent of the allegations justified substantial additional work.
5. The claim for unused material was not excluded merely because unused material fell within the proxies of the graduated fee. Paragraph 17(2) expressly provides that a successful special preparation claim is payable in addition to the graduated fee.
6. An allowance of 30 additional hours was directed. Counsel was also entitled to the costs of the appeal, including £410 exclusive of VAT and the £100 appeal fee.

• High Court (Senior Courts Costs Office): appeal from the determining officer’s decision allowed under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013.