Practice and Procedure


PUBLISHED March 31, 2003

A costs judge was correct in restricting the appellant barrister's costs under reg.15(14) Legal Aid in Criminal and Care Proceedings (Regulations) 1989 SI 1983/343 to the costs which would have been incurred had the appellant conducted the appeal himself and disallowing the costs of instructing other counsel.Determination of an appeal brought by a barrister, ('J'), pursuant to reg.16 Legal Aid in Criminal and Care Proceedings (Regulations) 1989 SI 1989/343 in relation to the payment of his fees from public funds. J was junior counsel for a defendant in a criminal trial involving an alleged fraud on members of the medical profession. Following the collapse of the prosecution after a one month trial J's fees were determined in relation to his 19 month involvement. Being dissatisfied with the amount assessed J appealed to a costs judge and instructed counsel ('E') to represent him. At the conclusion of the appeal, which was successful in part, E sought the costs of his appearance incurred by J pursuant to reg.15(14) of the regulations. The judge concluded that it would be wrong to allow J a fee exceeding the amount that would have been appropriate had he conducted the appeal himself. J's first-hand knowledge of the case was such that he would not have needed to undertake 35 hours of preparation as E had done. J appealed this decision. As the case involved a point of principle of general importance, the Bar Council was granted permission to intervene and submitted written representations.HELD: (1) On a proper construction of reg.15(14) a successful appellant was not restricted to such a sum as would compensate him, with his pre-existing knowledge of the case, for the time it would have taken him to prepare for and present the appeal in person. Consequently, if it was reasonable to instruct counsel a costs judge could exercise his discretion to allow a sum in respect of those costs but was not obliged to do so. (2) It would be reasonable to instruct counsel in circumstances where a technical question arose on the applicability of some part of the regulations or any other issue which legitimately deserved the attention of a specialist costs counsel. However, it would not be reasonable to do so where the only real issue in an appeal concerned the general judgment of the weight of any particular case or the value in monetary terms of a particular item of work. In general, a consideration of all the circumstances in each case would determine what was reasonable. (3) In this case, whilst the judge had been wrong to consider himself restricted in relation to the fee that he could allow, the outcome reached had been correct. Reasonable costs did not include independent representation and there was no reason why J could not have represented himself. (4) It was a matter for those in a similar position to J as to whether they wished to instruct an advocate to appear on their behalf, but such a decision did not automatically justify an indemnity out of public funds over and above the appropriate entitlement for appearing in person.Appeal dismissed.

[2003] EWHC 626 (QB)