Evidencing special preparation and wasted preparation claims
PUBLISHED January 6, 2014
Criminal advocates need to keep an on-going work log
All criminal advocates should keep an on-going work log to ensure their special preparation and wasted preparation claims are properly supported. You can find a best practice example in the guidance link at the end of this article.
Keeping an accurate, running log of preparatory work is an established requirement under other payment schemes, e.g. Section 5.5.of the 2010 and 2013 VHCC specification. However, the expansion of fixed and graduated fee schemes has led some advocates to mistakenly believe that such work logs are no longer required.
R v Dunne cost case
The reference of R v Dunne involved an advocate?s claim, for special preparation, being reduced from 644 hours to 190 hours by the Determining Officer. The advocate had based their claim on an extrapolation ? a ?minutes per page? formula.
This is not in accordance with the Criminal Defence Service (Funding) Order 2007 and Criminal Legal Aid (Remuneration) Regulations 2013 which require work to be paid on the basis of what is reasonably and actually done.
Although the Cost Judge increased the hours allowed to 300 on appeal, he commented:
'It is incumbent on any advocate to provide a contemporaneous work log. Failure to do so can lead to the rejection of the claim for special preparation. If the special preparation claim is not rejected, the Determining Officer must make a value judgment based on the information provided and upon his or her experience'.