A High Court judge has urged the lord chancellor to stump up funds to pay a defence solicitor for hundreds of hours of work watching CCTV evidence in a murder trial.
Dismissing an appeal against the Legal Services Commission's (LSC) refusal to pay for the work, Mr Justice Akenhead criticised the 'failings' of the Crown and the 'wrongful' decision-making of the LSC.
But he said the 'formulaic' regulations under which litigators' fees are calculated for Crown court work - based on offence category, trial length and pages of prosecution evidence - expressly excludes 'any document provided on a CD-rom or by electronic communication'.
The appellant, Kingston upon Thames firm Maclaverty Cooper Atkins (MCA), represented Victoria Osoteku, charged with others in connection with the murder of a 15-year-old boy in 2010.
The firm applied for the case to be listed as a very high cost case, due to its length, but the LSC (now the Legal Aid Agency), refused citing 'exceptional circumstances'.
Following the service of 'hopelessly deficient' CCTV by the Crown at the start, the trial was adjourned for three months and the defendant's case severed.
The Crown then disclosed a 'substantial quantity' of previously undisclosed CCTV material. MCA spent 'hundreds of hours' reviewing it and produced a schedule running to 147 pages, which was used at trial. Following the second trial, MCA sought additional payment for 869 hours spent working on the CCTV material.
The LSC rejected the claim for payment saying it did not fall within the regulations.
After learning that MCA would not be paid for the work, the trial judge expressed his disagreement with the decision. He said the work done in relation to the CCTV was 'essential' to the case and the solicitor 'could not properly and adequately' have discharged their professional duty to their client without viewing it.
Dismissing the firm's appeal, Akenhead said: 'I cannot believe that parliament ever had in mind the exceptional circumstances raised by the facts of this case.'
Given that the LSC 'wrongly and wrongfully' refused to classify the case as a VHCC and the Crown's failure to make timely disclosure which lead to the 'massive amount of unforeseen and unforeseeable' work for the defence, the defence should be entitled to payment outside the 'rigours' of the funding regulations.
Akenhead stressed that the solicitors firm had 'behaved with propriety, professionalism and a disregard for its own financial interest'.
He invited the lord chancellor (pictured) to consider ways of providing appropriate recompense to MCA, possibly on an ex gratia basis.
Commenting on the 'very troubling case', chair of the Law Society's criminal law committee Richard Atkinson highlighted the errors of the LSC in not classifying the case as a VHCC and the prosecution's failings which resulted in a three-month adjournment and the discharge of the original jury.
'Any right-thinking person may well conclude that in these circumstances any penalty might fall on the errant state agencies or reward be given to the defence solicitors.
'But under the government's regulations the penalty falls not on the state but on the defence lawyers who are not to be paid for all of the essential work that they have carried out,' he said.
Atkinson asked the lord chancellor to consider amending the regulations in relation to the treatment of CCTV evidence, a change he said the Law Society has called for since 2007.
He said: 'With the proliferation of CCTV evidence and its often central role in many cases a failure to remunerate solicitors for viewing this material is unacceptable.'
A Ministry of Justice spokesman said: 'We note the judgment and are carefully considering it.'
Read the full judgment.