The principles of enhancement
1See generally CBAM 9.
The principles of enhancement
1.29Enhancement is relevant under the SCC (B10.100–10.104) for proceedings billed in the magistrates’ court, and under paragraph 29 of Schedule 2 to the Remuneration Regulations 2013,
4Criminal Legal Aid (Remuneration) Regulations 2013 SI No 435 (‘Remuneration Regulations 2013’). for work in all classes except E, F and H, in connection with confiscation proceedings in the Crown Court.
1.30An item in a bill only enhances if, taking into account all the rele-vant circumstances of that case, the work was done with any one or more of the following exceptionalities:
(a)exceptional competence;
(b)exceptional skill;
(c)exceptional expertise;
(d)exceptional dispatch;
or the case involves:
(e)exceptional circumstances; or
(f)exceptional complexity.
Exceptional means unusual or out of the ordinary when compared with the generality of criminal cases.
5R v Legal Aid Board ex p Broudie (1994) 138 SJ 94.1.31If enhancement applies, a percentage uplift is applied to relevant items. The percentage takes account of:
(a)the degree of responsibility accepted by the solicitor;
(b)the speed and economy with which the case was prepared; and
(c)the novelty, weight and complexity of the case.
1.32Rates for enhanced work: because of the rule in Backhouse
6R v Backhouse [1997] Costs LR 445, TMC S30. the percentage uplift is never less than 100 per cent
7R v Dhesi [2003] 4 Costs LR 645; CRIMLA 59. which is normally also the maximum. However, an uplift of up to 200 per cent may be paid in the magistrates’ court in the now very unlikely event that the proceedings relate to serious or complex fraud. The meaning is considered in CRIMLA 74. The allegation itself need not be of fraud
8Murria (Solicitors) v Lord Chancellor (R v Crossley) [2000] 2 All ER 941. but the fraudulent importation of drugs is excluded from the category of serious or complex fraud.
9R v Cevik [1998] 2 Costs LR 1.1.33Reasons must always be given for enhancement.
1.34Enhancement should be considered when the case has substantially increased the burden on the solicitor.
1.35Depending on the ground for finding exceptionality, each item of work should be considered separately for enhancement.
10R v Evans-Southall [1998] 1 Costs LR 68. Enhancement will only very exceptionally apply to travel and waiting such as where the amount of time spent on these items (if in an area where they can be claimed) is wholly disproportionate to the effective work conducted.
11Miller Gardner v The Lord Chancellor [1997] 2 Costs LR 29 and CRIMLA 62. Routine letters and telephone calls may be integral to the case and so worthy of enhancement.
12R v Alwan [2000] 2 Costs LR 326.1.36Relevant factors include the character of the defendant, the weight and complexity of the case and the nature of the allegation, the degree of public interest in the case, the use of expert evidence – particularly if contested (CRIMLA 22), the length of any trial and issues arising over defence witnesses. The preparation of a case for imminent hearing may show exceptional dispatch (CRIMLA 18). The use of foreign languages by the solicitor’s staff avoiding the need for interpreters may significantly improve efficiency (CRIMLA 4) and exceptional skill may be required to represent a number of defendants with different needs, though that factor alone will not be enough (CRIMLA 17). In the magistrates’ court, a hearing lasting more than two days may be exceptional (CRIMLA 24). Preparation which avoids a trial may enhance
13R v Smith SCTO 117/93. and cases involving child witnesses, -particularly where there is sexual abuse, will often enhance, particularly in the Youth Court.
14R v P SCTO 158/93. The fact that other solicitors in the same case have received enhanced payment is a relevant consideration (CRIMLA 71).The mere fact that there is a certificate for assigned counsel does not of itself justify enhancement in the magistrates’ court (CRIMLA 32) but, as solicitor advocates from the same firm may not be paid as assigned counsel,
15CBAM 3.6.7-14. enhancement may allow appropriate remuneration and it is relevant consideration.
16CBAM 6.8.16.