R v Nethercott [2026] EWHC 1300 (SCCO)

[2026] EWHC 1300 (SCCO)Case No 202201156/B3Case No 202201157/B3SCCO Reference: SC-2025-CRI-000137
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Venue Royal Courts of JusticeDate 29 May 2026
London, WC2A 2LL
Before
COSTS JUDGE LEONARDRvNETHERCOTTJudgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013Appellant: Richard Christie KC (Counsel)The appeal has been successful for the reasons set out below.The appropriate additional payment, to which should be added the sum of £1,000 (exclusive of VAT) for costs and the £100 paid on appeal, should accordingly be made to the Applicant.COSTS JUDGE LEONARD
Between
NethercottDefendantRCrown
[1]This appeal concerns the fees payable to Leading Counsel under the Criminal Legal Aid (Remuneration) Regulations 2013 for representing a Legally Aided party in the Court of Appeal.[2]Paragraph 1 of Schedule 3 to the 2013 Regulations reads:
“(1) The provisions of this Schedule apply to proceedings in the Court of Appeal. (2) In determining fees the appropriate officer must, subject to the provisions of this Schedule— (a) take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved; and (b) allow a reasonable amount in respect of all work actually and reasonably done.” (a) take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved; and (b) allow a reasonable amount in respect of all work actually and reasonably done.”
[3]Paragraph 9 of Schedule 3 prescribes the rates payable to advocates for such work but, at sub-paragraph (4), says:
“(4) Where it appears to the appropriate officer, taking into account all the relevant circumstances of the case, that owing to the exceptional circumstances of the case the amount payable by way of fees in accordance with the table following sub-paragraph (1) would not provide reasonable remuneration for some or all of the work the appropriate officer has allowed, the appropriate officer may allow such amounts as appear to the appropriate officer to be reasonable remuneration for the relevant work.”

The Background to this Appeal

[4]On 23 April 2021 a party was held at a house in Jaywick, Essex. Many of those attending were drinking and some were using cocaine. Members of the Cooper family were told to leave the party, having been found taking cocaine in a child's bedroom. Several of them, and others who had attended the party, were involved in violence in the street a short distance away from the house.[5]One of those involved was Bobby Nethercott (“the Defendant”), who was alleged to have punched several people, causing one of them, Michelle Cooper, a 40-year old mother of three, to fall and strike her head on the ground. Ms Cooper sustained a brain injury in the fall, from which she died two days later.[6]On 21 March 2022, after a 14-week jury trial in the Crown Court at Chelmsford before Her Honour Judge Lynch, at which the Defendant was represented by the Appellant, Mr Christie KC, the Defendant was convicted of the manslaughter of Ms Cooper and of two additional offences of assault occasioning actual bodily harm. On 5 April 2022 he was sentenced to a total of eight years' imprisonment.[7]On 13 April 2022 applications for leave to appeal against conviction and sentence were filed.[8]As to conviction, the grounds of appeal, as set out in an Advice and Perfected Grounds of Appeal dated 31 May 2022 and drafted by the Appellant and his junior, were these.[9]The learned trial judge had misdirected herself as to the correct approach when deciding to admit evidence of bad character and allowing it to be placed before the jury.[10]The learned judge then compounded those errors by interrupting the Appellant's closing speech, undermining a point he was making about the approach the defence had invited the jury to take in relation to the bad character evidence (which related to a conviction at a trial at which the Defendant had been absent and without representation and which the Appellant says had been engineered to provide bad character evidence from an incident that actually occurred after the events of 23 April 2021).[11]This was compounded further by the treatment of this evidence and criticism of counsel in the learned judge’s summing up, in which she appeared to suggest that admission of evidence obtained in this way was the norm and that counsel’s approach was wrong.[12]The learned judge wrongly failed to provide the jury with written directions on the law, thus depriving counsel of any or any proper opportunity to see how she proposed to leave those and other matters to the jury and, in consequence, any proper opportunity to address the jury on them.[13]This failure meant that the jury had (other than a note in the route to verdict) no written directions on the approach to bad character, the central issue of self-defence or the approach required in respect of self-defence on two counts of assault occasioning actual bodily harm.[14]The learned judge incorrectly directed the jury in respect of self-defence on those counts by failing to direct them on the “householder defence” under section 76 of the Criminal Justice and Immigration Act 2008, which should have required the jury to be sure of grossly disproportionate force before they could convict.[15]In doing so she erred in unilaterally changing how she had agreed to direct the jury before speeches and left counsel for the Defendant in an unfairly disadvantaged position.[16]The Learned Judge misdirected the jury on the pathological evidence and failed to correct it, having agreed to do so, thus leaving the jury with an incorrect picture of the strength of this evidence when it was consistent with BN’s case.[17]The Appellant and his junior also prepared an Advice and Grounds of Appeal advancing three grounds of appeal against sentence. (That work is not the subject of this appeal).[18]I have not seen the relevant documentation but I understand that on 7 November 2022, the Single Judge granted leave to appeal against conviction only on the last of the above grounds, and refused the application for leave to appeal against sentence. She made a representation order limited to junior counsel, confirming in an email dated 9 November 2022 that her reason for so doing was that she had granted permission to advance a single, narrow ground of appeal which did not, in her view, require a silk to advance it.[19]The Defendant subsequently renewed to the Full Court applications for leave to appeal against conviction and sentence on all the grounds that had been refused.[20]The appeal hearing was listed for a day on 23 February 2023. Shortly before the hearing, junior counsel became seriously ill with pneumonia, and had to be taken to hospital. There was no possibility of his appearing on the appeal.[21]On 21 February Holroyd LJ, the presiding judge on the appeal, asked the Appellant to take his junior’s place. The Appellant did so, albeit at no little personal inconvenience, cancelling a surgical appointment of his own to ensure that the Defendant was properly represented on the appeal and avoid the potential waste of a full day of Court of Appeal time.[22]The Court issued a representation order dated 21 February 2023 naming the Appellant as counsel.[23]The Court of Appeal made a point of recognising the Appellant’s contribution in its judgment:
“We wish in particular to express our gratitude to Mr Christie, who came into this appeal at short notice and at substantial personal inconvenience when junior counsel who had been due to represent the appellant unexpectedly had to withdraw for medical reasons.”
[24]The appeal for which leave had been given by the Single Judge was successful. The Defendant’s manslaughter conviction was quashed and a re-trial arranged. Leave was refused, in respect of both conviction and sentence, on all the other grounds advanced by the Appellant.[25]On 3 March 2023, the Appellant submitted a claim for payment totalling £15,379.17 plus VAT. Of this, £1,500 represented a brief fee for the appeal hearing. The remaining £13,879.17 was said to represent 55 hours and 31 minutes’ preparation work, which (according to counsel’s worklogs) broke down into 7.6 hours on the sentencing appeal and 47.55 hours on the appeal against conviction. By my calculation the correct total would be 55.15 hours (55 hours and 9 minutes). The claimed preparation fee represented an hourly rate of just over £250.[26]Initially, the Determining Officer refused payment of any fee for the application for leave to appeal on sentencing, on the grounds that no representation order had been made. On 14 February 2024 he revised this to allow a payment of £2,000 plus VAT for the 7.6 hours of preparation claimed, on the basis that all the work was undertaken before the Single Judge made her decision on leave to appeal, and so was covered by the representation order in the court below.[27]In relation to the application for leave and the appeal on conviction, the Determining Officer allowed a total of £10,000 plus VAT (against a claimed £13,387.50) for the claimed 47.55 hours’ preparation and a full day before the Court of Appeal. In his written reasons, he placed much emphasis upon the fact that the Single Judge had limited her Representation Order to junior counsel and that the Full Court had refused leave to appeal upon the renewed grounds, for which there had, in comnsequence, been no funding.[28]The Appellant appeals in relation to the Determining Officer’s allowance for the conviction application. There is no appeal in relation to the fees allowed for the sentence application.

Conclusions

[29]The Determining Officer referred to the Taxing Officer's Notes for Guidance which, at paragraph 1.11 set out the factors relevant in determining the reasonable amount of counsel’s fees:
“(i) the importance of the case, including its importance to each defendant in terms of the consequences to his livelihood, standing or reputation even where his liberty may not be at stake; (ii) the complexity of the matter; (iii) the skill, labour, specialised knowledge and responsibility involved; (iv) the number of documents prepared or perused with due regard to difficulty and length; (v) the time expended; and (vi) all other relevant circumstances…”
[30]This was a complex appeal. The appeal decision itself has been reported and is, I understand, referred to in the Crown Court Compendium. One must recognise the responsibility taken on by the Appellant, who put himself at the disposal of the court to rescue the hearing, the inconvenience to him of doing so and the necessary work undertaken by him at speed, to bring himself back into the case at such short notice. One must also recognise that the Representation Order of 21 February 2023 named a KC. There is no basis for saying that he should be paid, under that certificate, at anything other than a rate appropriate to a KC.[31]With regard to hourly rates, I refer to the judgments of Costs Judge Whalan in R v Doak [2023] EWHC 271 (SCCO) and R v. Rafiq [2019] SCCO Ref: 27/19; of Costs Judge Brown in R v Walker [2022] EWHC 2841 (SCCO) and of Costs Judge Rowley (now the Senior Costs Judge) in R v Lawrance [2022] EWHC 3112 (SCCO) and R v Williams [2025] EWHC 2412 (SCCO). An effective preparation rate of £250 per hour, as claimed, is not unreasonable for this case.[32]Nor, it seems to me, can the brief fee claimed by the Appellant be characterised as unreasonable in itself.[33]The difficulty lies in the fact that some of the claimed time is, given the limits of the relevant Representation Orders (which are limited to the ground of appeal for which leave was given), irrecoverable. By my calculation, 2.6 hours of the 47.55 hours’ work recorded on the appeal and renewed applications for leave in relation to conviction, was undertaken by the Appellant after the decision of the Single Judge and before the Representation Order of 21 February 2023.[34]Of the remaining 44.95 hours, 10 hours were spent, on 22 and 23 February 2023, in preparation for the appeal hearing. Understandably, there is no exact record of the amount of that time spent upon the unsuccessful application for renewal of leave to appeal on a number of grounds. The best guide I have is that the Court devoted a significant proportion of its judgment (15 out of 53 paragraphs) to addressing those grounds for which permission was not given.[35]Doing the best I can, I will accept that seven of the 10 hours spent in preparation between 22 and 23 February 2023 (and a similar proportion of time in the appeal hearing itself) would have been spent on the ground of appeal for which permission was given.[36]For those reasons, it is my conclusion that counsel should be allowed, for his preparation work on the applications for leave to appeal on conviction and the conviction appeal itself, a preparation fee of £10,500, which together with an apportioned brief fee of £1,000, comes to a total of £11,500 plus VAT.[37]This appeal succeeds to that extent.