[2010] EWHC 90169 (Costs)

SCCO Ref: 353/09

Dated: 17 February 2010

ON APPEAL FROM REDETERMINATION

REGINA v O’CUNEFF

SOUTHWARK CROWN COURT

Case No T2009 0447

APPEAL PURSUANT TO PARAGRAPH 21 OF SCHEDULE 1 OF THE CRIMINAL DEFENCE SERVICE (FUNDING) ORDER 2001 / ARTICLE 30 OF THE CRIMINAL DEFENCE SERVICE (FUNDING) ORDER 2007

CENTRAL TAXING TEAM CASE: NO

DATE OF REASONS: 12 NOVEMBER 2009

DATE OF NOTICE OF APPEAL: 18 NOVEMBER 2009

APPLICANT: SOLICITORS/COUNSEL Messrs Leslie Franks Solicitors DX 46458 Kentish Town

The appeal has been successful for the reasons set out below.

The appropriate additional payment, to which should be added the sum of £500 (exclusive of VAT) for costs and the £100 paid on appeal, should accordingly be made to the Applicant.

C. CAMPBELL

COSTS JUDGE

REASONS FOR DECISION

[1]This is an appeal against of the decision of the Legal Services Commission to recoup £2,525.04 in accordance with paragraphs 26(1) and 26(2)(a) of the Criminal Defence Service (Funding) Order 2007, from the account of the appellant firm, Leslie Franks, solicitors. The appellant had acted for the defendant, Russ O’Cuneff in the Southwark Crown Court in respect of a Class B offence and been paid on the basis of a cracked trial with Pages of Prosecution Evidence (“PPE”) at 1938. However, according to the LSC, the correct PPE was 1322 and for that reason the overpayment was recouped under the Funding Order.

[2]The amount originally paid was £12,019.18 but on 12 November 2009, the LSE gave its reasons for recouping the overpayment as follows: “During a recent review of Crown Court cases, a number of matters have been identified where the … PPE recorded on the Court’s records and/or PPE form, do not correspond with the details held by the prosecuting authorities. “We have recently contacted the Revenue and Customs Prosecutions Office regarding this case and they have confirmed that the number of pages of this case that fall within the definition of PPE was 1322 pages. This page count comprises of 186 statements, 740 exhibits, 232 interview transcripts, and 164 photographs. We have been unable to verify that the additional pages meet the PPE criteria and therefore should be excluded from payment”.

[3]In this appeal the appellant contests the LSC’s calculation. In written submissions, the appellant has stated that the 1938 pages was based upon the number of pages paid to Counsel, and following confirmation from Southwark Crown Court, on 22 and 27 October 2009, that that figure was the correct page count. In addition, the appellant relies on a note from Mr Graham Blower of Counsel, in which he confirmed that the total figures for PPE were agreed between the Court and Counsel involved. That calculation had been accepted by the LSC as Mr Blower had been paid £1,270 based upon 1938 pages of PPE.

[4]I have received written submissions in response from the LSC dated 27 November 2009. The letter says this:

“The solicitors claim 1938 PPE. The PPE claimed was based on the figure held by Southwark Crown Court. The firm submitted a fax from Southwark Crown Court stating 1938 PPE. Upon receipt of this document, Leslie Franks were informed that we no longer rely solely on Court records to verify the PPE in a case, and as from 1 October 2009 it is a requirement that all litigator fee claims are submitted with documentation served by the prosecuting authority, such as paginated statements and exhibit lists, committal bundle, front sheets and/or Notices of Additional Evidence. Leslie Franks subsequently supplied paginated statement and exhibit lists to account for 1080 PPE. It was agreed with Leslie Franks that the LSC caseworker would contact the prosecuting authority to confirm the remaining number of pages before authorising payment. Unfortunately the claim was processed incorrectly, and the claim was paid in accordance with the PPE figure recorded by the Court. When authorising payment for a co-defendant in this matter, it was highlighted that the case had been paid incorrectly as when paying the co-defendant, the Revenue and Customs Prosecution Office were contacted and the PPE for the case was confirmed to be 1322 pages. This figure comprises 186 statements, 740 exhibits, 232 interview transcripts, and 164 photographs. As a result of this information, Leslie Franks were contacted and were informed that part of their payment would be recouped (£2,520.04) in the light of the PPE confirmed by RCPO, unless they could provide any further documentation to support the page count of 1938 from the prosecuting authority. Leslie Franks could not provide any further information to support their claim of 1938 PPE, and therefore the recoupment of £2,520.04 was carried out”

[5]The appellant made further written submissions in reply to the LSC’s letter of 27 November 2009, as follows: “It is worthy of note that the Crown Court used two systems to record PPE figures. The first is CREST which the LSC used to determine the PPE figure for solicitors, the second system is EXHIBIT which Court use to update the PPE figures for the payment of Counsel, and which records the agreed PPE figure at the end of the case with the Court and Counsel. It is the EXHIBIT system which is used to pay Counsel, not the CREST system, which is often not updated at the end of the proceedings with the correct PPE figure. The EXHIBIT system, once updated, takes into account un-paginated pages used in evidence, and any evidence which was previously unused but becomes used material during the course of the case. This is why, when we ask the Court to confirm the PPE count in the matter of O’Cuneff, we have asked for the agreed figure as recorded on the EXHIBIT system, and not the CREST system, in order to obtain an accurate PPE figure”.

[6]At the hearing of the appeal, I heard from Mr Nicholas Rosenfeld, the solicitor of the appellant with overall responsibility for the case, and from Mr Graham Blower, Counsel briefed on behalf of the defendant. Mr Blower has explained to me that under the EXHIBIT system, at the conclusion of the case, the page count is agreed between prosecution and defence advocates, and a “PPE form” is then submitted to the Clerk of the Court for his approval. In the present case, this arrangement had lead to the Court approving 1938 PPE in respect of which Mr Blower received payment from the Southwark Crown Court under the EXHIBIT system.

[7]Mr Rosenfeld explained to me that litigator fee claims are paid differently. The Court also runs the CREST system. Into this system are inputted the number of pages, but whereas EXHIBIT updates the page count as and when new documents are served, CREST does not, indeed it was Mr Rosenfeld’s submission that the system was never designed to be updated on a regular basis. It follows that problems have occurred where Counsel is paid for a particular number of pages which have been logged on the EXHIBIT system and approved by the Clerk of the Court, but where CREST has not been updated, and his firm has received lower fees.

[8]In the present case, form LF1 was lodged on 14 October 2009 on the basis of 1938 pages of PPE. Payment was made based upon this figure, but was subsequently recouped in the manner I have set out above. Accordingly, it was not appropriate in this case for the firm to lodge a form LF2 because the shortfall (if it be that) occurred by way of recoupment rather than disallowance.

[9]The problem, as submitted to me, has been that the LSC will only accept a paginated list of pages of PPE. However, there is no requirement on the Crown Prosecution Service when serving evidence to do so by way of paginated list, still less does the Crown deliver its evidence all at once. On the contrary, where, as here, evidence is served right up to the commencement of the trial, there cannot be a paginated list. In the present case, telephone records and additional statements were served at the last minute and material that had previously been unused became used when it was relied on and served upon the Court. However, notwithstanding that form LF1 now has a tick box as to whether the PPE form agreed by the Court Clerk has been submitted, it was Mr Rosenfeld’s submission that in the LSC’s latest Guidance, such a form is not accepted as proof of the page count. The LSC will only accept a paginated list, which, for the reasons set out above, it is not possible to provide in every case.

[10]Having made these factors, I am satisfied that the appeal must be allowed. To qualify as PPE, paragraph 1(2) of Part 1 of Schedule 2 of the Criminal Defence Service (Funding) Order 2007, provides: “For the purposes of this schedule, the number of pages of prosecution evidence served on the Court includes all –(a) witness statements;

(b) documentary and pictorial exhibits;

(d) records of interviews with other defendants, which form part of the committal or serve prosecution documents for which are included in any notice of additional evidence, but does not include any document provided on CD-rom or by other means of electronic communication”.

[11]Prior to the appeal, Mr Rosenfeld had lodged copies of the telephone records, etc, which had been served other than with a paginated list. He submitted that these documents accounted for the difference between the 1938 pages agreed by the Crown Court and the 1322 pages which the LSC had remunerated. I accept his submission on this point, and accordingly the appeal must be allowed. I am satisfied that the correct page count, as agreed between prosecuting and defence counsel, and approved by the Court was 1938 pages and the LSC must accordingly repay the amount of £2,525.04 previously recouped to the appellant. In reaching this decision, it is appropriate that I should express concern that this is yet another appeal in which Counsel have been paid by the Crown Court on the basis of the PPE form approved by the Clerk, but the solicitors have had to make do with a significantly lesser sum because the LSC has either not been willing to accept the PPE form, or has declined to pay out in the absence of a paginated list. In my view, very considerable weight should be given to the figure agreed in the Crown Court at the end of a case, when the papers served under paragraph 1.2 of Part 1, will be in Court, as will be the advocates with their own papers, who can then agree the correct PPE figure with the Clerk of the Court. So far as the Guidance is concerned, it is appropriate to re-state what Sir Christopher Holland said in Lord Chancellor v Purnell

(2009) EWHC 3158

(QB) that the GFS Guidance published on behalf of the Lord Chancellor is not a source of law, but is “no more and no less than “ Guidance””. TO: Legal Services Commission Merseyside Regional Office DX 14208 Liverpool 1 COPIES TO: Messrs Leslie Franks Solicitors DX 46458 Kentish Town The Senior Courts Costs Office, Clifford’s Inn, Fetter Lane, London, EC4A 1DQ. DX 44454 Strand, Telephone No: 020 7947 6468, Fax No: 020 7947 6247. When corresponding with the court, please address letters to the Criminal Clerk and quote the SCCO number.