Think we get paid by the hour? Think again. With the introduction of the Litigator and Advocates Graduated Fee Schemes in 2007, both are paid not by the amount of work undertaken but instead the Crown Court costs for any given case under the Schemes and worked out based upon a calculation of a number of factors.
Firstly, the seriousness of the case, categories from A – murder, right through to F – thefts, and even a miscellaneous H category. Secondly, how the case was dealt with, e.g. guilty plea, trial (and number of days). Then the number of defendants represented; uplifts are given for representing two to five defendants at 20% of the case fee – no matter how much more work is involved and whether it is two or five defendants represented. Finally, turning to the page count known as PPE (Prosecution Pages of Evidence).
Legal Aid Cuts
By now most people will be aware of the Governments plans to make yet further cuts to the Criminal Legal Aid budget. This year saw protests by criminal defence lawyers across the country in response to planned further cuts and although following a consultation with the industry, the MOJ has agreed to curtail some of the changes proposed (most importantly, for example, client choice has been retained) further sever cuts are imminent.
It has now become as important as ever that both Litigators and Advocates are properly remunerated for the work they undertake in the Crown Crown. Whilst it is usually a fairly straightforward task of determining the category of case, route taken and number of defendants, it can be more problematic to determine the PPE, a task made all the more difficult in that the page count is dictated by the Prosecution. In essence, the Prosecution decide how many pages of evidence they will serve and in effect therefore control how much the defence team (Litigator and Advocates) will be paid for dealing with any particular case.
It will not have gone unnoticed by those conducting these cases that, in general, the Prosecution serve as little by way of PPE as they can, serving a large proportion of additional evidence such as telephone records on a disc electronically, e.g. by way of convenience. What is important with this type of electronically served evidence is that for it to fall under the definition of either PPE or Special Preparation it firstly must be documentary evidence and must have been served upon the Court.
In general, such evidence is claimed as ‘special preparation’ which means it can be claimed as an additional payment to the main fee claimed. The Legal Aid Agency (LAA) take the view that they will pay what is reasonable for a) viewing this evidence and b) reading this evidence, and there is costs case law which confirms that an overall view will be taken as opposed to payment on a minute per page calculation. It is extremely important for any Litigator that this ‘extra fee’ is not overlooked and is claimed correctly, particularly as the evidence in question may actually be claimable as PPE, which would attract a higher ‘main fee’ payment.
As of the 1st April 2012, new guidance in respect of which evidence constitutes PPE was issued by the LAA. Importantly, it allowed discretion for evidence served electronically to be considered PPE if, for example, such evidence would have previously been served on paper.
It was with this in mind that when Olliers submitted a claim for costs in the case of R v Jackson, the telephone records, which had been served by the Prosecution as ‘electronic evidence’, were claimed as PPE therefore adding to the page count in the case as a whole.
Remember the method of calculating the case; increasing the overall page count gives a higher fee than by claiming the main fee and an additional ‘special preparation’ fee. Therefore, if the Prosecution has served documentary evidence by way of convenience on disc that would previously have been served in paper format, it should be claimed as PPE.
The first claim and subsequent appeal to the LAA resulted in them rejecting the assertion that such evidence ought to be considered PPE and hence an appeal was lodged to the Senior Courts Costs Office. A hearing took place before Master Simons at the Royal Courts of Justice on 18th December 2012.
At that hearing it was advanced that the LAA guidance was unequivocal. The evidence served on disc, e.g. telephone records, was evidence that in a pre-digital era would have been, and regularly was, served on paper and as such, ought to be considered PPE. The LAA was therefore acting contrary to it’s own guidance.
In allowing the appeal, Master Simons concluded “I accept Mr Gillooley’s, from Olliers Solicitors, submissions that this evidence would formally have been served in paper format…… Consequently, by virtue of the Legal Services Commission’s own guidance, it is appropriate to include the information on the disc as pages of prosecution evidence because it would have been previously served in paper format.”
It is clear, therefore, that both Litigators and Advocates must consider carefully the nature of any evidence served electronically in order that they can be properly remunerated for the work undertaken and, as a result in these difficult times of continuing Legal Aid, cuts can continue to be in a position to defend their clients to the fullest of their abilities.