Secretary of State for Constitutional Affairs v Stork [2005] EWHC 1763 (QB)

Case No HQ05X00110

[2005] EWHC 1763 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 3 August 2005

Before

THE HON. MR JUSTICE GRAY

Sitting with Assessors

Between

THE SECRETARY OF STATE FOR CONSTITUTIONAL AFFAIRSClaimant

BRIAN STORKDefendant

Mr Vikram Sachdeva (instructed by The Treasury Solicitor) for Claimant

Mr Stephen Leslie QC for Defendant

Hearing Hearing dates: 21 July 2005

Judgment

The issue

[1]The question which I am asked to decide, with the benefit of assessors namely the Senior Costs Judge and Mr Peter Birts QC, concerns the remuneration payable to barristers for Crown Court trials under the Graduated Fees Scheme. The issue is whether, when his client is found not guilty part way through a multi-defendant trial, a barrister is entitled to be paid the daily “length of trial uplift” for the whole length of the trial or whether his entitlement to such uplift is limited to the days when he attended the trial.

Factual background

[2]The facts of the instant case may be summarised as follows: Mr Craig Staniland was committed to the Crown Court on bail for one offence of violent disorder on 8 April 2003. There were 19 co-accused. Mr Brian Stork was his defence counsel.

[3]The trial was listed to start in Sheffield on 18 August 2003. Three of the accused pleaded guilty. The Prosecution decided to proceed to trial against ten of the remaining defendants, one of them being Mr Staniland.

[4]On 23 September 2003, upon the close of the Prosecution case, Mr Stork made a submission of no case to answer on behalf of his client. The Judge acceded to that submission and ordered the jury to return a verdict of not guilty.

[5]Accordingly the trial of Mr Staniland lasted a total of 19 days. The trial continued against the other defendants over a period of a further ten days, making 29 days in all.

[6]On 8 October 2003 Mr Stork lodged a claim for Graduated Fees. The total amount claimed was £26,724.88. The claim included, amongst other elements, a Basic Fee of £250; refreshers totalling £2,448 (18 x £136) and length of trial uplift £4,004 (28 x £143). That claim was duly considered by the Determining Officer, Mr Philip Marshall, who made the following allowances in relation to Refreshers and length of trial uplift: refreshers £2,448 (18 x £136), length of trial uplift £3,432 (24 x £143). The total amount allowed by the Determining Officer was £19,982.20.

[7]Mr Stork sought a review by his letter of 13 May 2004. On 27 May 2004 Mr Marshall replied in the following terms: “On the third point I have studied the Regulations and also consulted with the National Taxing Team and the Regulations state that the length of trial uplifts should be calculated for the number of days of trial for the assisted person, which in this case should be 19. As can be seen from the original payment an error was made and in fact 24 days of trial uplifts were paid. As a result I enclose a copy of the new figures calculated and in fact Mr Stork has been overpaid by the amount of £3,389.46 and we look forward to this being reimbursed within 21 days”.

[8]There followed on 14 June 2004 written reasons for the review decision which were: “I accept that the trial lasted a total of 29 days and that an advocate who represented a defendant that lasted the whole duration would be entitled to 28 length of trial uplifts plus the appropriate gradients. However, using The Criminal Defence Service (Funding) Order 2001, as amended, Schedule 4, Part 2, paragraph 7(1) and (2) state that ‘(1) the amount of the graduated fee for a single trial advocate representing one assisted person being tried on one indictment in the Crown Court shall be calculated according to the following formulae:… for trials exceeding ten days – G = B + (d x D) + (e x E) + (w x W) + (d x R) + d x (D x (d-9) x g) and (2) … d is the length of trial uplift specified in paragraph 8 as appropriate to the offence for which the assisted person is tried and the category of trial advocate instructed; …’. I consider the relevant wording to be ‘for which the assisted person is tried’ and that the advocate is only entitled to the length of trial uplifts equal to the number of days minus the first day that the defendant he was representing was involved in the trial and not the total length of the trial of the co-accused”.

[9]Mr Stork appealed to the Costs Judge. He pointed out in his written submission that, by the time of his departure, the defence case for his client had been fully prepared and was ready to be presented. The case of each of the other defendants had been considered. Mr Stork argued that, if the reasoning of the Determining Officer was correct, he would receive no payment for time spent preparing presentation of his client’s case and cross-examination of other defendants. He submitted that an analogy could and should be drawn with the old system, whereby a barrister’s fee would not be reduced in the event that his client was acquitted at half time or chose to plead part way through the trial. The work had been done and to penalise the barrister would be unjust.

[10]Costs Judge Rogers gave judgment on 9 December 2004. His reasoning was as follows:

“… Although, for the sake of completeness, I have quoted the entire paragraph, it is, of course, only the definition of B (sic) that is in issue, namely: ‘D is the length of trial uplift specified in paragraph 8 as appropriate to the offence for which the assisted person is tried and the category of trial advocate instructed;’ … As I have indicated, this appears to be a novel point of construction, upon which there is no prior authority and, so far as I can tell, nothing in the Graduated Fee Guidance either. Although the Graduated Fee Scheme is a stand-alone scheme, and I have said on many occasions that a case is either within it not within it, I do accept counsel’s submission that in construing the Regulations, regard can be had by analogy to the way ex post facto remuneration is structured. Graduated Fee payment is an amalgam of what would have been a basic fee and refreshers and, on that basis, I consider that counsel’s interpretation of the Regulation is to be preferred. It is interesting to note that the definition of d is ‘the number of days or parts of a day by which the trial exceeds one day’ (my emphasis). It is not ‘by which the trial of this defendant’ (emphasis added)…”

. Accordingly the Judge directed that an additional payment should be paid to Mr Stork of £1,430 made up of length of trial uplifts for the 10 days the trial against the other defendants continued after a verdict of not guilty was returned in respect of Mr Stork’s client, Mr Staniland. ‘D is the length of trial uplift specified in paragraph 8 as appropriate to the offence for which the assisted person is tried and the category of trial advocate instructed;’

The Graduated Fee Scheme

[11]Before turning to the relevant statutory provisions, it is convenient to set out what I understand to be the history of the Graduated Fee Scheme. Graduated fees were introduced into the Crown Court on 1 January 1997 following negotiations between the Bar Council and the then Lord Chancellor’s Department on how best to reconcile the claims of criminal advocates for fair remuneration with the increasing demands of the legal aid budget on public funds. The aim of the scheme was and is to simplify the calculation of the amount of an advocate’s fee and ensure prompt payment, at the same time providing more control over costs. Savings are achieved, first, by the fixing of fees within a prescribed graduated scale and, secondly, by a reduction in the administrative costs of taxation.

[12]Under the scheme criminal advocates are allowed a graduated fee consisting of(1) a basic fee at a differing prescribed rate according to the class of offence charged,

(2) uplifts for the length of trial, the pages of evidence served by the Crown and the number of witnesses called, and

(3) an amount called a refresher calculated by reference to the number of days or parts of a day by which the trial exceeds one day.

[13]The basic and refresher fees laid down bear little relation to brief fees and refreshers in the conventional sense, either in concept or amount. Far from intending to cover any specific aspect or aspects of the advocate’s work, as do brief and refresher fees (see e.g. Loveday v Renton (No 2)

[1992] 3 All ER 184

at 190 b-c, 190h to 191a), the basic fee payable in a graduated fee case represents a literal base figure to which the various uplifts and the refresher are added by application of the formulae prescribed.

[14]A glance at the Table of Fees and Uplifts set out in Part 2 of Schedule 4 to the Criminal Defence Service (Funding) Order 1991 shows that the amounts payable for length of trial uplift are as substantial as, and in many cases more substantial than, the refresher amounts which underlines the weighting given to the length of trial in the overall fee.

[15]My assessors have informed me that the amounts laid down in the Tables were worked out as a result of a complex statistical analysis of historical costs across the whole range of Crown Court cases carried out by the Bar Council and the Department prior to the introduction of the scheme. The object of this was to provide `cost neutrality’ as between the old ex post facto regime and the new graduated fee scheme. That is to say that, following the introduction of the scheme, barristers as a whole would receive, and the legal aid fund would pay out, neither more nor less in real terms than what had been received and paid in the year preceding the scheme’s introduction. To achieve this laudable aim, however, many arithmetical compromises were required with the result that, as was readily recognised at the time, there is a large element of ‘swings and roundabouts’ in the amounts payable to advocates for carrying out work rewarded by the graduated fee scheme. Since the scheme was introduced, the Department have added to it and expanded it.

The statutory framework

[16]The Criminal Defence Service (Funding) Order, 2001 (“the CDSFO”), made under powers conferred on the Lord Chancellor by the Access to Justice Act, 1999, provides by article 5 that remuneration in respect of the proceedings mentioned in article 3(1) shall be in accordance with the provisions of schedules 1 to 4. Article 3(1) includes proceedings in the Crown Court. It is Schedule 4 which is relevant to fees for advocacy in the Crown Court. Paragraph 1(1) of Part 1 of that schedule contains the following material definitions: “ ‘Trial advocate’ means a person instructed in accordance with the representation order to represent the assisted person at the main hearing in any case; ‘Case’ means proceedings in the Crown Court against any one assisted person: (a) on one or more counts of a single indictment … ‘Main hearing’ means: (a) in relation to a case which goes to trial, the trial … ‘Preparation’ means work of any of the following types when done by a trial advocate: (a) reading the papers in the case; … (c) contact with prosecution representatives; (d) written or oral advice on plea; (e) researching the law, preparation for examination of witnesses and preparation of oral submissions for the main hearing; (f) viewing exhibits or undisclosed material at police stations; … (h) written advice on evidence; (i) written and oral advice on appeal (where covered under the same representation order as the main hearing); (j) preparation of written submissions, notices or other documents for use at the main hearing and (k) views”. (a) on one or more counts of a single indictment … (a) in relation to a case which goes to trial, the trial … (a) reading the papers in the case; … (c) contact with prosecution representatives; (d) written or oral advice on plea; (e) researching the law, preparation for examination of witnesses and preparation of oral submissions for the main hearing; (f) viewing exhibits or undisclosed material at police stations; … (h) written advice on evidence; (i) written and oral advice on appeal (where covered under the same representation order as the main hearing); (j) preparation of written submissions, notices or other documents for use at the main hearing and (k) views”.

[17]Part 2 of Schedule 4 is headed “Graduated Fees for Trial”. Paragraph 7 at the material time provided:

“(1) The amount of the graduated fee for a single trial advocate representing one assisted person being tried on one indictment in the Crown Court shall be calculated according to the following formulae: (a) for trials not exceeding ten days - G = B + (d x D) + (e x E) + (w x W) + (d x R); and (b) for trials exceeding ten days – G = B + (d x D) + (e x E) + (w x W) + (d x R) + d x (D(d-9) x G). (2) In the formulae in sub-paragraph (1): G is the amount of the graduated fee; B is the basic fee specified in paragraph 8 as appropriate to the offence for which the assisted person is tried and the category of trial advocate instructed; d is the number of days or parts of a day by which the trial exceeds one day; e is the number of pages of prosecution evidence excluding the first 50; w is the number of prosecution witnesses excluding the first ten; D is the Length of Trial uplift specified in paragraph 8 as appropriate to the offence for which the assisted person is tried and the category of trial advocate instructed; E is the evidence uplift specified in paragraph 8 as appropriate to the offence for which the assisted person is tried and the category of trial advocate instructed; W is the witness uplift specified in paragraph 8 as appropriate to the offence for which the assisted person is tried and the category of trial advocate instructed; R is the refresher specified in paragraph 8 as appropriate to the offence for which the assisted person is tried and the category of trial advocate instructed; g is the length of trial gradient specified in paragraph 8 as appropriate to the offence for which the assisted person is tried and the category of trial advocate instructed”

. Paragraph 8 of Part 2 provides: “For the purposes of paragraph 7 the basic fee, refresher, length of trial gradient, length of trial uplift, evidence uplift and witness uplift appropriate to any offence shall be those specified in the Table below as appropriate to the Class within which that offence falls according to paragraph 5, the length of trial and the category of trial advocate instructed.” (a) for trials not exceeding ten days - G = B + (d x D) + (e x E) + (w x W) + (d x R); and (b) for trials exceeding ten days – G = B + (d x D) + (e x E) + (w x W) + (d x R) + d x (D(d-9) x G). G is the amount of the graduated fee; B is the basic fee specified in paragraph 8 as appropriate to the offence for which the assisted person is tried and the category of trial advocate instructed; d is the number of days or parts of a day by which the trial exceeds one day; e is the number of pages of prosecution evidence excluding the first 50; w is the number of prosecution witnesses excluding the first ten; D is the Length of Trial uplift specified in paragraph 8 as appropriate to the offence for which the assisted person is tried and the category of trial advocate instructed; E is the evidence uplift specified in paragraph 8 as appropriate to the offence for which the assisted person is tried and the category of trial advocate instructed; W is the witness uplift specified in paragraph 8 as appropriate to the offence for which the assisted person is tried and the category of trial advocate instructed; R is the refresher specified in paragraph 8 as appropriate to the offence for which the assisted person is tried and the category of trial advocate instructed; g is the length of trial gradient specified in paragraph 8 as appropriate to the offence for which the assisted person is tried and the category of trial advocate instructed”.

[18]There then follow Tables of Fees and Uplifts setting out the basic fees, refreshers, length of trial uplifts per day, evidence uplifts per page and witness uplifts per witness applicable to Queen’s Counsel and other trial advocates respectively. The amounts vary according to the length of the trials and the Class within which the offence falls.

Procedure

[19]Although this is an appeal, procedurally it comes before the Court as an application under Part 8 of the Civil Procedure Rules.

[20]As will already be apparent, the single issue in the case concerns the length of time which the daily rate of length of trial uplift (‘D’ in the statutory algebraic formula) can be claimed, the period being denoted by ‘d’ in the formula which we have quoted. Details of Claim have been served on behalf of the Secretary of State for Constitutional Affairs, the Claimant, who has been represented before us by Mr Vikram Sachdeva. Mr Stephen Leslie QC has appeared on behalf of Mr Stork, the Defendant. A detailed Reply to Details of Claim has been served on his behalf.

Submissions on behalf of the Claimant

[21]The contention advanced by Mr Sachdeva on behalf of the Claimant is that “d” in the formulae contained in paragraph 7 of Part 2 of Schedule 4, quoted in paragraph 7 above, must refer to the number of days of trial relating to the Defendant (-1) in respect of whom costs are being claimed. He submits that there are a number of reasons why this is so. The first is that the concepts of the “case”, “main hearing”, “preparation” and “trial” are defined in terms of defending proceedings against any one assisted person. It is immaterial that the trial against co-defendants continues for longer than the trial of the particular assisted person. The provisions of paragraph 23 of the Order support this conclusion.

[22]Mr Sachdeva points to what he describes as the incoherent argument implicit in the case advanced on behalf of the Defendant, namely that “d” is ascribed a different meaning for the purposes of the refresher element (dxR) from the meaning ascribed to it for the purposes of the length of trial uplift (dxR). The finding of the Determining Officer was that, for the purposes of the element dxR, “d” =18. It is submitted on behalf of the Claimant that “d” must have the same numerical connotation throughout. Mr Sachdeva further draws attention to the absurd result which follows from the construction of the formula for which the Defendant contends: if a trial involving multiple defendants lasts for 25 days and counsel for an assisted person who made a successful submission of no case to answer after one day is entitled to a length of trial uplift as claimed by the Defendant, counsel for that person would be paid for the whole 25 days even though he was present at the trial for only one day.

Submissions on behalf of the Defendant

[23]Mr Leslie argued that, although the Defendant is entitled to only 19 refreshers, he is entitled to length of trial uplifts that reflect the overall length of the trial, namely 29 days. He submits that the Determining Officer misdirected himself when he took as the relevant wording “for which the assisted person is tried”. This led to him making an incorrect determination that, so far as the Defendant was concerned, the trial ended with the acquittal of his client. The Defendant’s case is that on the proper interpretation of the Scheme “the trial” would either continue until verdicts were returned against Mr Staniland’s nine co-defendants or the jury, sworn to try all ten defendants, was discharged for some other reason, whichever came the sooner. It would, submitted Mr Leslie, be an affront to common sense to treat the jury as if it was sitting on several different trials at the same time. He relied on the inclusion of the words “and with other defendants” in paragraph 1(2) of Part 1 of Schedule 4. The need for Mr Stork to read the records of the interviews of Mr Staniland’s co-defendants as part of the preparation of his own client’s case demonstrates the artificiality of the Claimant’s approach to the construction of the Scheme.

[24]Mr Leslie emphasises that in criminal cases preparation is a continuous concept. Notwithstanding that he intends to make a submission of no case to answer at the conclusion of the prosecution case, it is incumbent on the barrister to prepare his client’s case so that, if needs be, he is ready to call his client, cross-examine other defendants and make a closing speech. The length of trial uplift can and should reflect the professional obligation upon counsel to prepare his client’s case on the assumption that his submission of no case to answer will fail. Mr Leslie reminded the Court that, whilst he accepts that the Graduated Fee Scheme is a stand alone scheme, it would be wrong to ignore the fact that historically the brief fee was paid to reflect counsel’s overall preparation and contribution to the trial and not just his physical presence at it.

Discussion and conclusion

[25]As I have indicated, Mr Leslie accepted on behalf of the Defendant that the Graduated Fee Scheme is a stand-alone scheme. This concession was without question rightly made. The significance of the concession for present purposes is that the historic system whereby barristers were paid a brief fee and refreshers must be entirely disregarded. As I have pointed out in paragraph 13 above, the basic fee payable in a graduated fee case represents the literal base figure to which the various uplifts and refreshers are applied in accordance with the formulae. The base fee is therefore conceptually different from the brief fee. It is in hindsight perhaps unfortunate that the Scheme retains the term “refresher” to describe the daily payment to which the trial advocate is entitled. But it is clear from the Table of Fees and Uplifts that the refreshers payable under the Scheme have little in common with the refreshers paid under the historic system of remuneration. Under the Scheme the amounts payable for length of trial uplift generally exceed the amounts payable as refreshers.

[26]I cannot therefore accept Mr Leslie’s invitation to take account of the fact that historically the brief fee was paid to reflect counsel’s overall preparation and contribution to the trial. Nor do I accept that the system of remuneration under the Scheme ignores the need for counsel to read and consider documents and evidence relating to the cases for and against his client’s co-defendants. It appears to me that the evidence uplift per page and the witness uplift per witness both reflect this need.

[27]With respect to the Costs Judge, I think he was in error when, having accepted that the Scheme is a stand alone scheme, he said that, in construing the Regulations, regard might be had to the way in which ex post facto remuneration is structured. That is to hark back to the old regime which has been superseded.

[28]The question for the Court is therefore one of construing the relevant provisions of the Scheme without regard to the system which went before. The starting point is paragraph 1 of Part 1 of Schedule 4 which deals with the definition and scope of the scheme for the payment of advocates in the Crown Court.

[29]“Main hearing” is defined, in a case which goes to trial, to mean the trial. Curiously there is no definition of “the trial”, although it is the trial which, according to the definition of “d” determines the period over which the refreshers and length of trial uplifts are payable. However, “case” is defined to mean “proceedings in the Crown Court against any one assisted person”. It appears that the term “proceedings in the Crown Court” covers the proceedings from their inception to their conclusion at the end of the trial or by way of earlier disposal. More important for present purposes are the words “against any one assisted person”. Those words appear to me to indicate that, for some purposes at least, the case of one defendant has to be considered in isolation from the cases against co-defendants and separately from the trial as a whole.

[30]Mr Sachdeva suggests that paragraph 23 provides guidance as to the correct connotation of the terms “case” and “trial”. It addresses the position where the assisted person is charged with two or more offences on the same indictment. It provides: “(1) Where an assisted person is charged with more than one offence on one indictment, the graduated fee payable to the trial advocate shall be based on whichever of those offences he shall select for the purpose; (2) Where two or more cases to which this Schedule applies involving the same trial advocate are heard concurrently (whether involving the same or different assisted persons):(a) the trial advocate shall select one case (“the principal case”), which shall be treated for the purposes of remuneration in accordance with the previous paragraphs of this Schedule;

(b) in respect of the main hearing in each of the other cases the trial advocate shall be paid a fixed fee of twenty per cent of: (i) the basic fee for the principal case, where that is a case falling within paragraph 2, or (ii) the fixed fee for the principal case, where that is a case falling within paragraph 3”. (a) the trial advocate shall select one case (“the principal case”), which shall be treated for the purposes of remuneration in accordance with the previous paragraphs of this Schedule; (b) in respect of the main hearing in each of the other cases the trial advocate shall be paid a fixed fee of twenty per cent of: (i) the basic fee for the principal case, where that is a case falling within paragraph 2, or (ii) the fixed fee for the principal case, where that is a case falling within paragraph 3”.

[31]I do not agree with Mr Sachdeva that the provision in paragraph 23 entitling the trial advocate to select a principal case would be otiose on the Defendant’s construction of the statutory provisions. It seems to me that it is necessary to provide for the selection of a principal case in order to determine the applicable basic fee which varies according to the class of case. That is necessary whether the advocate’s entitlement to remuneration comes to an end on his departure from the case or whether it continues until the determination of the cases of the co-defendants. I do not therefore accept that on the Defendant’s interpretation of the provisions paragraph 23 is otiose.

[32]However, a further submission is made on behalf of the Claimant that, on the Defendant’s interpretation of the provisions, it would not be possible to select a case for the purposes of remuneration in accordance with the previous paragraphs of the Schedule. True it is, as I have said, that it is not only possible but necessary to select a principal case for the determination of the remuneration payable. But the machinery whereby the uplifts are to be applied to the basic fee cannot, as it appears to me, operate on a case by case basis if the remuneration is to be calculated (as the Defendant maintains) on the basis of there being only one trial. In my judgment the provisions for selecting a principal case lends support to the Claimant’s contention that, as the definition of “case” suggests, the remuneration is intended to be calculated by reference to the trial against the particular client rather than by reference to the trial of all defendants.

[33]I mentioned in paragraph 23 above the reductio ad absurdum arguments of the Claimant. Such arguments carry little weight in cases which turn on statutory construction, especially where (as here: see 15 above) the Scheme is the product of negotiations with a ‘swings and roundabouts’ element.

[34]There is a further argument available to the Claimant which is to my mind unanswerable. It is founded on the fact that “d” (the number of days or parts of a day by which the trial exceeds one day) features as the multiplier in the calculation of both refreshers and length of trial uplifts. Mr Leslie conceded, as he had to, that the trial advocate cannot be entitled to remuneration by way of refreshers for any days beyond the trial of the individual assisted person. It is therefore conceded on the part of the Defendant that, when it comes to calculating refreshers, “d” in the formula (d x R) equals the number of days by which the trial against the individual assisted person exceeded one day. In the present case the figure is 18 days.

[35]When it comes to the calculation of the length of trial uplifts, i.e. (d x D), the case for the Defendant is that “d” is to be given a different meaning, namely the number of days by which the trial of all the defendants exceeded one day (irrespective of the duration of the case against the individual assisted person). In the present case the figure is 28 days.

[36]In my opinion “d” must bear the same connotation where it appears on the formula to be applied to calculate refreshers as it does where it appears in the formula for calculating length of trial uplift (as well as the formula for calculating length of trial gradient). I find it impossible to accept Mr Leslie’s contention that, exceptionally, it is in the present case possible for “d” to have a different meaning according to which part of the graduated fee is being calculated. The whole point of an algebraic formula, such as is provided in the Graduated Fee Scheme, is to achieve certainty.

[37]In agreement with the Determining Officer, I am driven to the conclusion that in the definition of “d”, the words “the number of days by which the trial exceeds one day” must be taken to mean the trial of the assisted person whose case is under consideration by the Determining Officer. As I have already said, both the definition of “case” in Part 1(1) of Schedule 4 and the provision at paragraph 23 suggest that is the correct interpretation. The correct and inevitable concession in relation to the value of “d” in the calculation of refreshers in my judgment clinches the argument in favour of the Claimant’s construction of the provisions of the Scheme.

[38]This appeal is therefore allowed.