DAS v Paul Asplin

Under regulation 31 of the Criminal Legal Aid (Remuneration) Regulations 2013, a late claim requires either a good reason or exceptional circumstances. Those are separate questions. If exceptional circumstances justify extending time, the court must then consider whether a reduction in fees is reasonable, after giving the advocate a reasonable opportunity to address that issue.

Routine oversight and the pressures of practice ordinarily remain within the general run of late claims. An unusual wider delay affecting all advocates may, however, amount to an exceptional circumstance. Any fee reduction should reflect the length and consequences of the delay and may be substantial.

The appellant, junior counsel, appealed against a determining officer’s refusal to extend time for submitting a claim for criminal legal aid fees. The claim, relating to Court of Appeal proceedings concluded in January 2022, was submitted approximately three years later.

The appeal concerned the application of regulation 31 of the Criminal Legal Aid (Remuneration) Regulations 2013: whether the delay was supported by a good reason or exceptional circumstances, and whether any extension should be accompanied by a reduction in fees. The appellant relied partly on the fact that the other advocates had also delayed submitting their claims.

1. Appeal allowed to a limited extent. The time for submitting the claim was extended, but the fees otherwise allowable were reduced by 50%. The appellant was awarded the £100 appeal fee but no other costs of the appeal.
2. Paragraph 5 of Schedule 3 required an advocate’s claim to be submitted within three months of the conclusion of the relevant proceedings. Regulation 31 created two distinct stages: first, whether there was a good reason or, where necessary, exceptional circumstances justifying an extension; secondly, if exceptional circumstances existed, whether it was reasonable to reduce the fees. A reduction was not inevitable, and full fees could remain payable in an appropriate case.
3. R v Lafayette [2010] 4 Costs LR 650 was materially relevant. Ordinary oversight did not constitute a good reason, but complete disallowance could justify treating the circumstances as exceptional and imposing a fee reduction. The reasoning that the severity of the sanction itself necessarily created exceptional circumstances was questioned, since it could otherwise make disallowance practically unavailable. The conclusion remained appropriate in a case of that nature.
4. Exceptional circumstances require the claim to be taken out of the general run of late claims. Much of the delay here resulted from oversight and did not satisfy that description. The unusual circumstance that none of the defendant advocates appeared to have submitted claims within the expected period made the appellant’s delay less surprising and, on balance, was sufficient.
5. The three-year delay and the additional work required by the determining officer justified a significant reduction. A 50% reduction was appropriate.

• Senior Courts Costs Office, High Court: The determining officer refused to extend time for submission of the fee claim. The refusal was varied on appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013.