R v Stallard

An appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 is confined to matters that could properly have been brought before the determining officer under paragraph 28. It does not provide a route to challenge expenses, including subsistence or VAT on disbursements. For trial fees, paragraph 16 of Schedule 1 distinguishes between an ineffective trial fee before trial commencement and a daily attendance fee during the trial. Where the attendance or listing conditions for the applicable fee are not met, no alternative lower fee is payable.

Lawrence Selby, counsel for Nicholas Stallard, appealed against the determining officer’s assessment of fees and expenses arising from a murder and robbery indictment tried at Birmingham Crown Court. The defendant was convicted of manslaughter and robbery.

The appeal concerned subsistence expenses, VAT on disbursements, and claims for ineffective trial fees for three days on which the court did not sit during the trial. The central questions were whether expenses could be challenged under the statutory redetermination and appeal procedures, and whether a trial advocate could claim a Trial Not Proceed fee for days after the trial had commenced when the advocate was not required to attend.

1. Expenses and VAT. The appeal under paragraph 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 could concern only matters properly brought before the determining officer under paragraph 28. Paragraph 28 permits challenges concerning specified fees, preparation, fee calculation and offence classification. It does not permit a challenge to expenses. The challenges to subsistence and VAT on disbursements therefore had no available remedy and could not succeed.
2. VAT guidance. The determining officer had not satisfactorily explained the deduction of VAT. The published guidance could reasonably be read as allowing comparison with VAT-exclusive guide rates before VAT was added. The judge also noted the possible difficulty for counsel who were not VAT registered. These observations did not alter the outcome.
3. Trial Not Proceed fees. Paragraph 16 of Schedule 1 makes an ineffective trial fee payable for a day listed for trial on which the case did not proceed. The court distinguished R v Durnin, because in that case the trial had been removed from the list before the relevant date, leaving the advocate free to accept other work. The present case involved a trial already under way, with advocates constrained by the continuing trial listing.
4. The Regulations and the guidance nevertheless provide only two potentially applicable fee routes: a Trial Not Proceed fee before trial commencement and a daily attendance fee during the trial. A daily attendance fee requires attendance at court. If the relevant listing or attendance requirements are not met, no alternative Trial Not Proceed or other lower fee is payable. The appeal was dismissed, and the appeal fee was not refunded.

The judgment records an appeal by counsel under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s assessment. The appeal was dismissed by the High Court (Senior Court Costs Office).