The Supreme Court Costs Office

No.11 of 2007

The Lord Chancellor v Nicholas Haggan QC & Ors [2007] EWHC 1212 (QB)

22 May 2007

Saunders J

This criminal appeal under the Criminal Defence Service (Funding) Order 2001 (SI 2001 No.855) at paragraph 22(8) concerned the interpretation of the graduated fee scheme insofar as it related to counsels’ fees under Schedule 4 of the Criminal Defence Service (Funding) Order 2001 (as amended).

Owing to drafting mistakes in the Funding Order, five alternative fees were available to counsel ranging between £58,597.30 and £209,535.26 depending upon which of the five alternative formulae under the graduated fee scheme was correctly adopted.

Before the Determining Officer, counsel was allowed £92,913.60 which the Master on appeal increased to £209,044.26. Saunders J analysed Schedule 4 and the formulae set out therein. He found that there was an inconsistency between paragraph 7(1)(a) and paragraph 26. Of the five alternative interpretations, the Judge agreed with the parties that he should not adopt option 1. The Lord Chancellor as appellant contended for options 2 and 3 and the respondents for options 4 and 5 (4 was the interpretation given by the Master). In the result, the Judge decided that option 3 clearly set out the intention of the draftsman and was the only option which made sense of the Regulations as a whole and made Regulation 26 consistent with Regulation 7 and 8. Accordingly the appeal was allowed but unfortunately the judgment does not indicate by how much counsel’s fees would be reduced as a result of the adoption of option 3 as opposed to option 4.