R v Nethercott

In assessing legally aided counsel’s remuneration for Court of Appeal work, the appropriate officer must consider all relevant circumstances and allow a reasonable amount for work actually and reasonably done. The assessment must respect the limits of the relevant representation order: work falling outside the funded ground or undertaken before the applicable order is irrecoverable. Where a representation order names leading counsel, remuneration should be assessed at a rate appropriate to that status. The court may apportion preparation and advocacy time between successful and unsuccessful grounds where the records do not permit exact allocation. Exceptional circumstances may justify remuneration exceeding the prescribed rates where those rates would not provide reasonable remuneration.

The appellant, leading counsel, represented the defendant at a 14-week manslaughter trial and subsequent Court of Appeal proceedings. A representation order initially limited funding to junior counsel and to one ground of appeal. Shortly before the hearing, junior counsel became seriously ill, and the Court of Appeal issued a replacement order naming the appellant.

The appeal succeeded on the permitted ground, resulting in the manslaughter conviction being quashed and a retrial being ordered. Other grounds were unsuccessful. The determining officer allowed £10,000 plus VAT for the conviction-related work. The issue was the appropriate recoverable preparation and brief fees, having regard to the representation orders and the work undertaken on unsuccessful grounds.

1. The appeal succeeded to the extent ordered. The appellant was allowed £10,500 plus VAT for preparation and an apportioned brief fee of £1,000, making £11,500 plus VAT, together with the stated appeal costs and fee.

2. Schedule 3 to the Criminal Legal Aid (Remuneration) Regulations 2013 requires the appropriate officer to take into account all relevant circumstances, including the nature, importance, complexity and difficulty of the work and the time involved, and to allow a reasonable amount for work actually and reasonably done.

3. The assessment of reasonable counsel’s fees involves the factors identified in the Taxing Officer’s Notes for Guidance, including the importance and complexity of the case, the skill, labour, specialised knowledge and responsibility involved, the documents prepared or perused, time expended and all other relevant circumstances.

4. The case was complex. The appellant’s responsibility in taking over the appeal at short notice, his personal inconvenience and the need to prepare rapidly were relevant circumstances. Because the replacement representation order named a KC, there was no basis for assessing the work at a rate below that appropriate to leading counsel. The cited costs decisions supported an effective preparation rate of £250 per hour.

5. Work undertaken outside the scope or duration of the relevant representation orders was irrecoverable. Of the conviction-related preparation claimed, 2.6 hours fell between the Single Judge’s decision and the replacement order. Time spent preparing and arguing unsuccessful renewed grounds also had to be excluded or apportioned.

6. Exact apportionment was impossible. The court therefore made a reasonable estimate, allowing seven of the ten hours spent immediately before the hearing, and a similar proportion of the hearing time, for the permitted ground. The brief fee was likewise apportioned.

• High Court (Senior Courts Costs Office): The appeal from the determining officer’s remuneration assessment succeeded to the stated extent. The allowance was increased to £11,500 plus VAT for the conviction-related work.