The Supreme Court Costs Office

No.2 of 2007

Goodman v Secretary of State for Constitutional Affairs: [2006] EWHC 3669 (QB)

13 November 2006

Paul Walker J

This criminal appeal brought by counsel under paragraph 22(3) of Schedule 1 Criminal Defence (Funding) Order 2001 (No.855 as amended) concerned the graduated fee scheme and whether dvds and “photo” inlays could properly be construed under the Regulations as pictorial exhibits.

Counsel had submitted claims for payment under the graduated fee scheme for £404,724.01 and £269,745.76 for leading and junior counsel respectively. Those sums were calculated under the formula for a trial not exceeding 10 days. The vast majority of each claim comprised evidence uplift which was based upon a rate per page of £1.86 and £1.24 respectively with the number of pages claimed as 180,304. [Such a claim could not now be made for the Regulations have been amended so that the maximum number of pages has been limited to 10,000 from 2 June 2004.]

Upon determination, the Determining Officer accepted only 1,956 pages and accordingly the fees allowed for leading and junior counsel respectively were £13,798.84 and £9,168.62. The Master, on appeal, upheld the decision of the Determining Officer but certified that the case raised a matter of general importance and accordingly counsel were permitted a further appeal to the Judge.

Walker J expressed himself to be in agreement with the decision of Gray J in Secretary of State for Constitutional Affairs v Stork [2006] 1 Costs LR 69 in which the learned Judge had recognised that the graduated fee scheme was the product of many arithmetical compromises with the result that there was a large element of “swings and roundabouts” in the amounts payable to advocates for carrying out work rewarded by the scheme. Walker J noted the concession by counsel for the Department that Schedule IV of the Funding Order did not contain any “super-added, discretion” and that there was no additional mechanism entitling the Department to claim that there should be some reduction to the fee sought on the grounds of general unfairness.

The appellant submitted that the inlay and the picture on the face of the dvd in question (which had a side containing graphical material and writing to indicate the name of the motion picture and to give information about it) could in each case be categorised as only one page per document or pictorial exhibit. It was not the appellant’s case that they were claiming fair remuneration; the sums which they had calculated as being due to them was the result of the “swings and roundabouts” which operated under the graduated fee scheme.

For the Department, counsel submitted that it could not be right that in a shoplifting case involving a stolen volume of the complete works of Shakespeare running to more than a thousand pages of text, that the page count could be greater than a thousand pages where the contents of the volume would be irrelevant. In a case where the contents were an essential ingredient, then each page in the book would be a page of evidence. That was not the case here.

Walker J rejected the submissions of the appellants. He held that the dvds and inlays did not constitute pages of prosecution evidence. To have done so, there would need to have been produced, quite apart from the real evidence, a page which had been created for the purposes of the prosecution. In considering whether a document constitutes a page of prosecution evidence, regard must be had to the mechanistic and formulaic approach which was generally adopted in the schedule to the Funding Order. If a claimant established that the document or pictorial exhibit constituted a page of prosecution evidence then there was no super-added discretion entitling the appropriate officer to refuse to allow the claim.