R v Vivek Gupta

Fee-earner grades under the Criminal Legal Aid (Remuneration) Regulations 2013 require a practical and holistic assessment of skill, knowledge and experience. Post-qualification experience is relevant but is not determinative. Relevant experience gained before qualification may be taken into account. Previous Legal Aid Agency assessments are not binding, but may provide a reasonable indication of practical seniority. The appropriate grade depends on the particular circumstances of the case and the fee earner.

Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency’s determination of fees under the Litigator’s Graduated Fees Scheme. Paul O’Donnell was claimed at grade A but allowed at grade B. Ghislaine Sandoval was claimed at grade B but allowed at grade C.

The solicitors had represented a defendant in complex fraud and money-laundering proceedings involving numerous bank accounts and subsequent proceeds-of-crime proceedings. The central issue was whether the fee earners’ grades should be determined principally by post-qualification experience or by a broader assessment of their relevant professional experience.

1. The appeal was allowed. Paul O’Donnell was to be assessed as a grade A fee earner and Ghislaine Sandoval as a grade B fee earner. The Appellants were awarded £150 costs, together with the £100 paid on lodging the appeal.
2. Under paragraph 26(3) and (5) of Part 6 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, the appropriate officer must allow work reasonably done and assign the fee-earner grade considered reasonable by reference to the statutory descriptions.
3. The statutory descriptions require an evaluative assessment of whether the fee earner has the skill, knowledge and experience appropriate to the relevant category. A strict post-qualification-experience approach does not properly reflect those descriptions. The Regulations require a more flexible and holistic assessment than the Guideline Hourly Rates structure.
4. The court relied on Paturel v Marble Arch Services Limited [2005] EWHC 1055 (QB), where relevant qualifications were treated as non-binding and overall litigation experience, including experience before qualification, was recognised as relevant.
5. Previous assessments by the Legal Aid Agency at a particular grade are not binding on the determining officer. They may nevertheless constitute a reasonable indication of practical seniority. Mr O’Donnell’s experience in proceeds-of-crime and asset-forfeiture work, and Ms Sandoval’s relevant criminal experience before qualification, justified the grades claimed. The assessment in R v Lambie [2021] SCCO Ref: SC-2021-CRI-000071 provided further support for Ms Sandoval’s grade B classification.

• Legal Aid Agency: The Determining Officer allowed Paul O’Donnell at grade B and Ghislaine Sandoval at grade C.
• High Court (Senior Court Costs Office): The appeal under regulation 29 was allowed. Mr O’Donnell was assessed at grade A and Ms Sandoval at grade B.