R v Tan Cong Nguyen

For Litigator’s Graduated Fees Scheme purposes, prosecution evidence includes material served electronically, subject to the specific limits in Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013. The assessment must distinguish served evidence from unused material and must address whether electronic exhibits fall within the statutory discretion.

Where prosecution reliance on digital material is broader than the material individually identified in the claim, the Costs Judge may allow a reasonable proportion of the material. The whole dataset need not be included merely because it was available or generally relevant. The regulatory page cap remains applicable.

Tyler Hoffman Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency Determining Officer’s reduction of the prosecution evidence page count in a Crown Court criminal case.

The claim concerned 28,872 pages of data recovered from a mobile phone. The Respondent allowed 882 pages, while the Appellants claimed the full dataset subject to the regulatory cap of 10,000 pages. The central issue was the appropriate PPE count for electronic material relied on by the prosecution in responding to a modern slavery defence.

1. Appeal allowed. The Costs Judge increased the electronic evidence allowance to 10,000 pages, producing a total PPE count of 10,131 pages. The Appellants were awarded £750 plus any applicable VAT, in addition to the £100 paid on lodging the appeal.
2. The Criminal Legal Aid (Remuneration) Regulations 2013, Schedule 2, paragraph 1, required the assessment to focus on prosecution evidence and exhibits served in the case. Material disclosed only as unused material could not be counted as PPE.
3. Electronic material served by the prosecution was capable of inclusion, but documentary or pictorial exhibits that had only existed electronically were subject to the appropriate officer’s discretion, having regard to the nature of the document and other relevant circumstances.
4. The guidance in Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB) was applied. The assessment was fact-sensitive. The prosecution’s reliance on the material, including its holistic reliance on mobile-phone usage to challenge the modern slavery defence, was relevant, but did not require the entire dataset to be counted.
5. The Determining Officer’s allowance was too conservative. Nevertheless, the Appellants’ submission that all 28,872 pages should be included was rejected. Categories such as metadata, audio, some activity and applications as such, and part of the images, were not to be included. A reasonable allowance of 10,000 electronic pages was directed, subject to the regulatory cap.

This was an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from the Legal Aid Agency Determining Officer’s assessment. The High Court (Senior Court Costs Office) allowed the appeal and directed an increased PPE count.