The principles of costs
1.1Although many fees are prescribed by the fixed, standard and graduated fee schemes, it is still essential to be able to apply the principles of costs in criminal legal aid cases. These will determine whether an exceptional claim can be made for police station work; whether in the magistrates’ court a fee is beyond the standard fee limit so that a claim can be made on Form CRM7; whether the escape figures have been reached in prison law; and the amount payable for special preparation and for work connected with confiscation in the Crown Court.
What is reasonable?
1.2The fundamental rule is that payment may be claimed in respect of profit costs for all work actually and reasonably undertaken by a fee earner
1See CBAM 2.4. (Standard Crime Contract (SCC) A5.8 and 8.40). Thus while rules of thumb as to the time required for different types of work are helpful, such as that it takes about two or in
R v Dunne2[2013] 6 Costs LR 1031. three minutes a page to read prosecution evidence, this is a guide to test what is reasonable. The claim cannot be for longer than was actually taken to do the work. To allow only one minute a page to read additional statements, which have to be checked against earlier statements by the same witness, is insufficient:
R v Noon.
3[2013] 4 Costs LR 633. Time recording and other records are vital (see CRIMLA 5 and SCC A8.41 and A8.42). Advocates must also maintain a contemporaneous work log:
R v Dunne.
4[2013] 6 Costs LR 1031. A specimen work log appears at Crown Court Fee Guidance (CCFG) Appendix E but the computer print out from a time recording system will do as well as long as the nature of each attendance is entered on the system.Special preparation (and ex post facto billing)
1.3In
R v French and others5[2014] 4 Costs LR 786. the judge confirmed that the following were of great assistance in assessing a claim:
•the dates, times and descriptions of the work completed, and the page count of the material considered.
•in so far as there are any documents produced, these should be annexed to the claim form in order to assist the determination.
1.4In handling appeals Independent Costs Assessors apply the standard basis as defined by the Civil Procedure Rules (SCC A8.39). These provide that costs will be disallowed if:
(a)They are unreasonably incurred;
(b)They are unreasonable in amount;
(c)They are disproportionately incurred; or
(d)There is a doubt whether they were reasonably or proportionately incurred or whether they are reasonable or proportionate in amount.
1.5Profit costs may be claimed, subject to specific provisions, for the value of the work actually and reasonably done by way of:
•routine letters and telephone calls (emails are usually classified as letters);
•advocacy;
•attending an advocate at court;
•preparation and attendances;
•travel;
•waiting.
1.6To be chargeable the item claimed must not be purely administrative work (SCC A5.72–5.73); (the Criminal Bills Assessment Manual (CBAM) 10 considers work needed to comply with obligations in relation to money laundering) and no claim may be made for costing a file or opening or closing procedures. The exercise of delegated powers and the upkeep of records of such decisions may be claimed (SCC A5.73).
1.7The work must be such as might reasonably be undertaken by a fee earner. Fee earner
6See also CBAM 2.2. An enquiry agent doing solicitors’ work will be a fee earner if their principal instructions are for enquiry agent work they may be charged as a disbursement (CRIMLA 43). includes anyone undertaking the fee earner work, whatever their employment status and even if at other times they are not a fee earner, including employed counsel and those appointed for a specific task for which they charge the litigator a specific fee.
7R v Duxbury TMC S2; Pullum TMC S1; Smith Graham (Solicitors) v The Lord Chancellor [1999] All ER (D) 957; Brush v Bower Cotton & Bower [1993] 4 All ER 741; CBAM 2.2.1.8In determining the reasonableness of work done and -whether the time is reasonable, account should be taken of all relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved.
Routine letters and telephone calls
1.9Routine letters written are those that are not items of preparation and are more than a compliments slip.
8R v Hudson TMC SJ2. Legal Aid Agency (LAA) guidance in CBAM suggests a letter is routine unless outside the range of an average letter, substantial in length or complex in content. The additional guidance that letters should be more than one page in length and take more than 12 minutes to prepare does not appear to be based on authority. Individual letters are chargeable even if standard
9R v Brown [2002] 3 Costs LR 539. and each letter in similar terms to a number of different people may be charged. Regular reports are required of all stages of a case and its preparation and should be remunerated (CRIMLA 2). Fax messages and emails may be charged as letters (but only one claim for each item).
1.10Routine letters received may only be charged if the reading time becomes an item of preparation.
1.11Routine telephone calls made or received are all calls that are -neither an item of preparation nor abortive:
R v Hudson.
10TMC SJ2. CBAM suggests that for a telephone attendance to amount to preparation, it must be of such substance as to constitute preparation and should materially progress the case. Again a requirement that it lasts at least 12 minutes is a guide but not based on principle. A call that does not get through will not meet the test for a routine call; a call that leaves a message that progresses the case will do so.
Preparation
1.12Preparation includes:
•taking instructions, including shorter appointments when a -client calls without a pre-planned meeting
11R v Moss TMC S16. or because a letter cannot be sent to them to preserve confidentiality or because they cannot read;
•interviewing witnesses;
•ascertaining the prosecution case;
•advising on plea and mode of trial;
•preparing and perusing documents; this will include regular consideration of the entire file ahead of a hearing or meeting, for instance;
•dealing with letters and telephone calls (which are not routine);
•preparing for advocacy, including identifying the history of and issues from the file.
12See Zavola TMC S11. Work in connection with case management and for pre-trial hearings will be recoverable;
•instructing an advocate and expert witnesses;
•conferences, consultations and work done in connection with advice on appeal;
•listening to or viewing any tape or video recording of interview or evidence. This will take longer than the length of the tape itself (CBAM 3.7);
•advising on appeals.
1.13Dictating time is properly charged as preparation
13Brush v Bower Cotton & Bower [1993] 4 All ER 741. and this will include the dictation of file notes that add value to the file.
1.14Preparation also includes long telephone calls and letters written that are more than routine.
14Bwanaoga v Bwanaoga [1979] 2 All ER 105.1.15Decisions on whether work was reasonable must be made without the benefit of hindsight.
15Francis v Francis and Dickerson [1955] 3 All ER 836; CRIMLA 38.1.16Drafting time and time spent reading and updating case papers is properly charged. This may include correcting prosecution papers if the Crown has not taken appropriate steps (CRIMLA 16).
1.17Additional time should be allowed when a period of time has passed since preparatory work for advocacy was undertaken, and the case was adjourned, so that the case has to be prepared again.
16R v Akinrele [2013] Costs LR 637.1.18Supervision which enables a less experienced fee earner to conduct a file may be charged, as may time spent in arranging appropriate delegation. The test is whether there is an overall saving to the fund.
17Ford-Lloyd TMC S6. In larger cases requiring the work of more than one fee earner, the time spent in their meeting together may be chargeable (CRIMLA 39). Duplication of work should otherwise be avoided.
18See generally R v Sandhu SJ1 and CBAM 2.1.1.19Completion of LAA application forms (in the CRM series) but not billing forms (which are administrative), may be chargeable -(CRIMLA 67). The process of billing may not be the subject of a claim.
19R v Sandhu TMC SJ1; CBAM 2.1. Administrative work is not recoverable (SCC A5.72–A5.73), nor is extra work caused by a solicitor’s inefficiency (SCC A5.77).
1.20Longer periods of time may reasonably be spent in attendance with those under 18 or mentally disabled than with other clients.
20CBAM 3.2.6.1.21Checking transcripts is fee earner work (CRIMLA 19, 35 and 49) but transcription is not (CRIMLA 78). The collation of photocopying may be fee earning work for instance in the preparation of a jury bundle. The service of a witness summons may be fee earner work.
21R v Lowe TMC S15.1.22Routine research and updating of the law is not normally work that a fee earner can charge to an individual file, but claims may properly be made for time spent in the application of the law to the facts of a particular case (SCCA 5.76). In addition, research may be chargeable if it is new, developing or unusual law (see also SCC A5.74).
22Perry v Lord Chancellor TMC SJ4; CBAM 3.4; R v Great Western Trains [2004] 2 Costs LR 331.1.23The total preparation time must be justified
23R v SCTO ex p John Singh & Co TMC SJ3. and is often best done by a case plan identifying the use of the time involved. If time is disallowed, the LAA must give reasons for doing so.
24Miller Gardner v Lord Chancellor [1997] 2 Costs LR 29.Advocacy
1.24The time that a bench or jury is in retirement is time charged as advocacy.
25R v Wanklyn TMC S28. In the magistrates’ court more than one advocate may reasonably attend different defendants represented by the same firm in a single case (even though there is no conflict), if issues of presentation require it (CRIMLA 11). In the Crown Court each defendant is entitled to his or her own advocate.
Travel and waiting time
26CBAM 3.6 and 3.9 and also para 8.10 below for the relevant case-law.1.25Payment for travel and waiting time is rarely available under the various fixed standard and graduated fee schemes. In those cases where it can be claimed the amount of travel time must be reasonable. Apportionment is required if more than one case is undertaken.
1.26It may be reasonable to travel further if there is no more local supplier; if the client’s problem is so specialised that the attendance of the particular solicitor is reasonable; and if the client is particularly well known to particular supplier; or if the local court or prison is at some distance.
27CRIMLA 21 31 and 34.1.27Fee earning work undertaken while travelling may compensate for any loss through unremunerated travel time.
1.28Waiting time cannot be charged if lunch is being taken.
28R v Varney TMC S21.