Practice and Procedure


PUBLISHED February 17, 2003

A barrister acting in person was entitled to recover the cost of work done by himself in his own defence.Appeal by the defendant ('K') from a decision of Costs Judge Hurst that K, a barrister, was not entitled to recover the cost of the work done by him in his own defence in criminal proceedings. In 1999 K, a practising member of the Bar whose experience extended to the preparation and conduct of criminal proceedings and applications for judicial review, was convicted of indecent assault. His appeal against conviction made in the Crown Court in 2000 was unsuccessful. Later that year, however, he successfully applied to the Divisional Court for judicial review of the Crown Court's decision. His conviction was quashed and the case was remitted to the Crown Court for rehearing. The Divisional Court awarded K his costs of: (i) the hearing before that court; and (ii) the unsuccessful appeal hearing in the Crown Court. In each court K had undertaken the role of junior counsel, albeit that in the Crown Court he was led by Queen's Counsel, was not robed and appeared solely in his personal capacity. He had also carried out a great deal of the preparatory work for the hearings in both courts. Pursuant to the award of costs in his favour, K submitted bills under which he sought to recover: (a) a fee equivalent to a junior's brief fee of ?7,500 (being half of leading counsel's fee) for the hearing in the Crown Court;and (b) a fee for the preparatory work done by him in connection with the judicial review proceedings. It was common ground that the work done by K would ordinarily have been performed by junior counsel and that, had the work been carried out by another barrister, that barrister would have been remunerated. Judge Hurst rejected both items on the ground that a barrister acting in person was not entitled to recover the cost of the work done by him in his own defence of criminal proceedings, since the value of that work could not be considered as "expenses properly incurred by him in the proceedings" for the purposes of s.16 Prosecution of Offences Act 1985 and Reg.7 Costs in Criminal Cases (General) Regulations 1986 SI 1986/1335.HELD: (1) As to both hearings, the Code of Conduct for the Bar of England and Wales expressly precluded K from appearing in a professional capacity in proceedings in which he was also involved or interested personally. He could not, therefore, recover payment of an appropriate "brief fee" for junior counsel. However, whether he was entitled to "costs" in respect of work carried out prior to or during the hearing which involved the exercise of his legal expertise and training, and which would otherwise have been performed by junior counsel, was a different matter. (2) K's circumstances fell four square within the principle stated by the Court of Appeal in The London Scottish Benefit Society v Chorley Crawford and Chester (1884) 13 QBD 872. As a result, he was entitled to an indemnity under s.16(6) and Reg.7.Appeal allowed.

[2003] EWHC 12 (QB)