Drummond Solicitors Limited v The Lord Chancellor

For criminal legal aid remuneration, electronic material counts as pages of prosecution evidence only within the statutory scheme. Material disclosed merely as unused material does not qualify, although service may be informal and need not depend on the prosecution relying on every part. Where electronic exhibits have never existed in paper form, the determining officer or costs judge must exercise the discretion under Criminal Legal Aid (Remuneration) Regulations 2013, Schedule 2, paragraph 1(5). The assessment is qualitative and case-specific. Relevant considerations include the material’s importance, volume, nature, the work reasonably required, the extent to which it featured in the case, and work delegated to an expert. PPE is not calculated simply by reference to work actually done or the obligation to consider material. Cursory checking of an expert’s work is generally more appropriately remunerated by special preparation.

The appellants, solicitors acting under a criminal legal aid representation order, appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The determining officer assessed the prosecution evidence at 2,741 pages and excluded downloaded material from two telephones, treating it as unused material. The respondent conceded that the material was served for the purposes of the scheme, but argued that it should nevertheless be excluded from the PPE count in the exercise of the paragraph 1(5) discretion, particularly because an expert had examined it and the expert’s fees had been paid. The central issue was whether the electronic material should count as PPE or instead be compensated, if at all, by a special preparation fee.

1. Appeal dismissed. The electronic telephone material was treated as served, following the respondent’s concession, but it was not included in the PPE count.
2. Service is a distinct question from whether material should count as PPE. Service may be informal and material may be served as evidence even though the prosecution does not rely on every part. If material is only unused material and has not been served, it cannot enter the PPE count and the paragraph 1(5) discretion does not apply.
3. For an electronic documentary or pictorial exhibit which has never existed in paper form, paragraph 1(5) requires a qualitative, case-specific assessment. The relevant circumstances include the importance of the material, its amount and nature, the work reasonably required, who performed that work, and the extent to which the material featured in the prosecution case. The material need not be treated as one integral whole; a sensible approximation may be made and only an appropriate proportion may count.
4. The payment of an expert to examine a very large body of electronic material was a relevant circumstance. The solicitor’s expected work was limited to checking the expert’s searches and filtering results. That involved, at most, cursory checking and did not require close consideration of a substantial number of pages. PPE is not assessed by the work actually done or merely because solicitors are obliged to consider material.
5. If compensation was appropriate, the checking work should be assessed as special preparation under paragraph 20 of Schedule 2, allowing the determining officer to assess the reasonable time involved. The claim for inclusion of the downloaded material as PPE therefore failed.

The judgment states that the appeal was brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. No earlier judicial decision is stated.