Guidance on the submission of Crown Court LAA claims

June 2, 2020

By Damian Nolan

Following on from Fiona Clancy’s article in the last issue regarding the Criminal Legal Aid Regulations surrounding PPE, this article discusses other practical aspects relating to the submission of PPE claims.

A. INTRODUCTION

Given the length of time that the LGFS and AGFS schemes have been around one might be forgiven for assuming that it would all be pretty much standardised by now. The fact that it is not is a testament to the reality that this is a topic with a number of difficult areas. In turn, this comes about because the source material is rather difficult to find and grasp. Further, the fact is that sometimes an inconsistent approach can be taken by the LAA even when assessing claims emanating from the same case.

By way of an overview it is my view that it is definitely worth spending the time to prepare the claim. It can be frustrating to have to expend the time involved but you will find that preparing a note for taxation and sending that with the claim along with the other required documents can improve one’s chance of being “paid as claimed”. For that reason I always recommend a separate note when claiming electronic material as PPE. If you can set out why it is to be considered PPE then you are helping the LAA justify their decision to pay should their case files be audited. I am sure you will have had experiences of being in a multi-handed case only to discover that some advocates/firms are paid and some are not paid the claimed PPE. Sometimes, it can be only a matter of luck in terms of which Determining Officer your claim goes to but in my experience those that spend the time on the initial claim are more successful first time around. When people say to me “the LAA has refused the disc” it is generally the case that all that was sent was the NAE PPE document (even with the nominal page count), the Representation Order and the Indictment. They are almost doomed to failure it seems.

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B. FACTORS WHICH ARE IMPORTANT FOR PPE BILLING

• Criminal Legal Aid (Remuneration) Regulations 2013 S.I. No 435 applies
• For electronic disc material to count towards PPE – 3 parts for a successful claim:
• The material has to be served by Prosecution (not Defence material)
• It has to be used material – unused does not count towards PPE
• It has to be treated as PPE by Determining Officer

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C. SERVED MATERIAL

• The onus is on you to prove service: R v Griffiths (2010) unreported
• Formal service by written NAE – you must ensure that EACH and EVERY disc is identified on the NAE. An NAE saying “Disc” is neither use nor ornament. I recommend that the exhibits list uses the exact exhibit label on the disc. It sounds obvious but it is surprising how often it is not done.
• Split service – service on one defendant covers all defendants. Be aware that evidence (especially conspiracy cases or joint enterprise cases) served after a guilty plea can be claimed if served on co-defendants post your client’s plea (R v Debenham SCCO 10/12). You need to remain vigilant that you receive all NAEs after your plea. To some extent this is easier to ensure post- CCDCS. As a back-up it can assist if you remain in contact with any trial advocate and ask them to assist with forwarding any such service.
• The LAA Crown Court Fees Guidance (CCFG) Appendix D is guidance only – not tramlines

CCFG: List of items to be included in PPE count

• fullest committal bundle or set of served prosecution documents (see R v Debenham above)
• witness statements, interviews, documentary and pictorial exhibits
• First Stage Streamlined Forensic Report (SFR1)
• Transcripts of video evidence that the judge requests. If this occurs make sure the CCDCS is noted to that effect and ask that the Court Clerk also annotates the Xhibit Log. You can assist yourself by asking the Court Clerk for the date and time the entry was made as you can quote that in the note you draft to the LAA. This helps as the LAA can access the Xhibit portal remotely.
• Scene of crime photographs.
• Prosecution analysis carried out on phone data.
• Bank statements.
• Raw phone data where a detailed schedule has been created by the prosecution which is served and relied on and is relevant to the defendant’s case. (SOE charts)

However, be aware that it can also include:

• Raw phone data if it is served without a schedule having been created by the prosecution, but the evidence nevertheless remains important to the prosecution case and is relevant to the defendant’s case e.g. it can be shown that a careful analysis had to be carried out on the data in order to dispute the extent of the defendant’s involvement.
• Raw phone data where the case is a conspiracy and the electronic evidence relates to the defendant and co-conspirators with whom the defendant had direct contact.
• Digital format = ‘relevant circumstances’ such as:
  1. the importance of the evidence to the case,
  2. the amount and the nature of the work that was required to be done,
  3. by whom, and
  4. the extent to which the electronic evidence featured in the case against the defendant

PPE VALIDATION – CC FEES GUIDANCE (CCFG)

In cases where the advocate or litigator is relying on the LAA Report from the DCS as evidence of PPE, the whole of the LAA Report must be provided and where the LAA is made aware that the page count has already been assessed for that defendant or a co-defendant, and full details are given up front, the LAA will normally apply this assessment across schemes/ co- defendants.

The following additional information must be submitted for all claims where electronically served evidence is being claimed as PPE:

• The disc or discs/other electronic service media containing the material. Remember to include passwords if appropriate.
• The full prosecution list/s of all evidence served in the case. Ensure your client’s name is on it. It sounds basis but there can be a tendency for the CPS in a multi-handed case to only place the names of the people still actively involved on the list. For example, if you are not in the on-going trial and there is an NAE it may just include the names of the defendants in the ongoing trial ONLY.
• An explanation as to which of the electronically served exhibits are being claimed as PPE
• A Schedule in the following format justifying inclusion should be considered in all cases and may be required in cases involving high electronic evidence counts/multiple discs:
  • Disc A, Folder B, SubFolder C, Document D–….pages

Additional justification:

• The prosecution case summary and sentencing note can set out the relevance
• The defence statement.
• Any defence schedules prepared from the electronic evidence.
• Any skeleton arguments submitted relevant to the electronic evidence claimed as PPE.
• Litigator’s attendance notes or work logs
• Full, detailed work logs or file notes showing all work undertaken in relation to the material served electronically.

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D. SERVICE OF MATERIAL RULING

• Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB)
• Ask trial judge, exercising case management powers to rule on service of material, to order service to benefit the efficient, effective and smooth running of proceedings (see eg CPR rules 1.1.(2)(e) and 3.2.(3))

– In the judgment of Holroyde J (as he then was) from SVS:-

i) The starting point is that only served evidence and exhibits can be counted as PPE.

ii) In this context, references to “served” evidence and exhibits must mean “served as part of the evidence and exhibits in the case”. The evidence on which the prosecution rely will of course be served; but evidence may be served even though the prosecution does not specifically rely on every part of it.

iii) Where evidence and exhibits are formally served as part of the material on the basis of which a defendant is sent for trial, or under a subsequent notice of additional evidence, and are recorded as such in the relevant notices, there is no difficulty in concluding that they are served. But paragraph 1(3) of Schedule 2 to the 2013 Regulations only says that the number of PPE “includes” such material: it does not say that the number of PPE “comprises only” such material.

iv) “Service” may therefore be informal. Formal service is of course much to be preferred, both because it is required by the Criminal Procedure Rules and because it avoids subsequent arguments about the status of material. But it would be in nobody’s interests to penalise informality if, in sensibly and cooperatively progressing a trial, the advocates dispensed with the need for service of a notice of additional evidence before further evidence could be adduced, and all parties subsequently over- looked the need for the prosecution to serve the requisite notice ex post facto.

v. In short, it is important to observe the formalities of service, and compliance with the formalities will provide clear evidence as to the status of particular material; but non-compliance with the formalities of service cannot of itself necessarily exclude material from the count of PPE

You need to be aware that the trial Judge’s view of service is persuasive not determinative as Cost Judges are not bound to follow trial judge’s opinion:

R v Nutting [2013] 6 Costs Law Reports 1037

• Arguments in Lord Chancellor v Hayes [2017] EWHC 138:
• Material was pivotal/core/integral to prosecution case.
• Had to be considered in properly preparing defence case – Consideration required to check accuracy and veracity of prosecution schedules and section 10 admissions of fact.
• Defence are entitled to refuse to agree admission of extracted data unless they are given opportunity to examine all the data on a download allowing defence to consider context of material

As Holyrode J (sic) stated in SVS [para.46]

‘the key point is that if the prosecution do wish to rely on a sub-set of the data obtained from a particular source, it will often be necessary for all of the data from that source to be exhibited so that parts on which the prosecution rely can fairly be seen in their proper context’

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E. TREATED AS PPE

• 3rd hurdle – served used material should be treated as PPE as it is central to the case and requires proper consideration by the Defence.
• Consider relevant passages in:
  – Prosecution Opening/case summary
  – Judicial remarks during legal arguments, summing-up and sentence
  – Note for Taxation
  – Solicitor File Notes:
  what work undertaken on the material
  why that work was undertaken
  what was learnt from the work
  what followed
  any resultant work product eg timeline, schedules

LAA REFUSAL

3 cases often cited by LAA re relevance to justify refusal in whole or part

1. R v Sana [2014] 6 Costs LR 1143:

– held it was not reasonable to treat the irrelevant material as PPE. However, reasonable time spent considering the material could still be the subject of a claim under the special preparation rules.

– if you were left with this avenue only then there will be a need to prove what actual work was undertaken ideally with contemporaneously kept work-logs to demonstrate time actually spent on the material.

Under the AGFS, special preparation in respect of PPE is only payable when the PPE for a case goes beyond 10,000 pages, or 15,000 in drugs cases, or 30,000 in dishonesty cases. Electronic evidence can be assessed by way of special preparation as part of the additional evidence if the relevant PPE threshold for the case is exceeded.

2. R v Mahmood (SCCO Ref 149/16;155/16 and 185/16):

In cases where a telephone report is served it may be appropriate to subdivide a report into its individual sections and allow only the relevant tabs or sections.

In particular, there is a distinction between “social material” i.e. audio files, images, photographs, internet history, cookies, installed applications etc that may properly be remunerated as special preparation and telecommunications date i.e. contacts, call history, SMS and other messages which is more likely to be paid as PPE.

3. R v Robertson (SCCO Ref 22/17):

Personal photographs or images contained on a defendant’s telephone are unlikely, per se, to merit inclusion within the pages of prosecution evidence. That said, an argument I have used in the past justifying the claim including this was when attribution of a phone was disputed and you could correlate the creation of images to the alleged use of a phone – i.e. a photograph of the family saved to images file very close to an alleged use of the phone to make a certain call. As it happens this rarely done by the Crown but I don’t know why.

HOW TO IMPROVE YOUR APPEAL AGAINST REFUSAL

Tabulated schedules

Schedules (like “Scott Schedules”) can help identify the issues at a Costs’ Appeal and can provide to the Master, at a glance, what is in issue and from my experience it will contrast favourably with the level of preparation one can expect from the LAA. The Master can have number of hearings on one day and will be grateful for work done that makes their task easier.

Create a schedule of items:

• claimed by the Appellants
• allowed by the LAA Determining Officer
• disallowed by the LAA
• reassessed by the LAA
• Appellants’ reasons justifying relevance

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F. RECENT HELPFUL COSTS’ CASE LAW

• R v King SCCO 170/19 – “electronic data mess”

[12] In determining what a reasonable course of action was, the use of hindsight must be guarded against. Against a backdrop of electronic evidence which was served as used and phone handset reports which were not sub-divided into categories of data I consider it reasonable to ask how the solicitors could reasonably be expected to know which documents could reasonably be studied for the purposes of PPE and which only merited reading time for a claim for special preparation? By the time a litigator has considered each document, time has been spent reasonably on those documents which ultimately may appear to be less relevant with the benefit of hindsight than others. I also take into account that, on the evidence presented, the electronic data was not served in a readily searchable form.

[13] I have considered the digital exhibits in question. There is no dispute that each of the three defendants’ phones were served as used evidence. When the USB stick is opened, each digital phone exhibit is sub-divided into folders – one folder for the handset report and one folder for the sim card report. There is no further sub-division meaning that the phone handset report for the Defendant’s phone, for example, is presented as a single 12,683 page document.

The page count is accurate, being in PDF format. The Notice of Additional Evidence sets out a page count of 14,073 which is based on the totality of the three phone handset reports and to the exclusion of the sim card reports. Given the length of the conspiracy, the reliance on establishing contact with both co-conspirators and victims, the fact of image data showing properties and/or building works, the basis of the prosecution case, and the manner in which the served used electronic evidence was provided being thousands of pages in PDF absent explanation or sub-division, I consider remuneration on the basis of PPE up to the 10,000 page cap to be appropriate.’

• R v Mooney SCCO 99/18
  
• if reasonable to view a category, then all items in category should count towards PPE

‘[14] It is agreed that it was reasonable for the solicitor to look at 129 pages of a total of 136 in a particular category of documents. In determining what a reasonable course of action was, the use of hindsight has to be guarded against. I ask, perhaps rhetorically, how the solicitors could reasonably be expected to know which documents could reasonably be studied for the purposes of PPE and which only merited reading time for a claim for special preparation? The artificiality of this situation is stark. By the time a litigator (or counsel) has considered each document, time has been spent reasonably on those documents which ultimately appeared to be less relevant with the benefit of hindsight than others. In my judgment, the determining officer ought to take a rather broader approach to what has been allowed than has been demonstrated by the schedule before me.

Where a category is clearly reasonable to view in principle, the correct approach ought to be to allow all of those entries. The same is true in this case, where 425 of 427 documents have been agreed.

It seems to me that if a category has been allowed in part then it would be an unusual case where it ought not to be allowed in full.”

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G. PAGE COUNT CALCULATION METHOD

Before turning to specifics there is an ever-developing trend for the CPS to serve a document as part of a hyperlink that, on the CCDCS, will appear as a single page. However, the advocate will know that when one clicks on that page it is hyperlinked to documents that can run into hundreds if not thousands of pages. That will not show on the LAA page report on the CCDCS. In the past I have asked the Judge to request that the CPS desist with that. If they will not then I ask the Judge to demand (as per the CPR/CPD) that the CPS make it clear in the NAE that say Item 63 on the exhibits makes it clear that it actually had x number of pages. My experience is that the latter is easier to achieve than the former as the CPS cite technical difficulties and then Judges will not want to get too involved but they can remedy any potential unfairness by making an order along the lines set out. If this does happen then remember to set out to the LAA how they can navigate the CCDCS and cross-reference that to the Exhibits List to find the linked pages in your taxation note.

• Blank pages will not count
• If evidence served on both PDF and Excel formats, only one format will count towards PPE, not both duplication will not be paid for: Dauginitis [2018]
• If only Excel format served then PPE should be calculated in reference to ‘excel pages’ not the PDF equivalent: O’Rourke [2017] SCCO 10/17
• PDF is not the presumed basis, but have to justify Excel based calculation: R v Ahmed (SCCO Ref 145/18)
• The decision in Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB) was cited in argument and it was decided that “The qualitative assessment commended by the High Court in that case does not lead to a presumption that a PDF report should be favoured over an Excel report. On a case by case basis, it falls to the Determining Officer, or Costs Judge on appeal, to consider which report best reflects the page count on an equivalent paper basis.”
• The Costs Judge in Ahmed accepted the proposition that: “when faced with data presented in PDF and Excel format that it will not always be the case that the PDF format is favoured for the purposes of a page count. However, the use of the Excel format for a page count must be justified and in keeping with the spirit of the regulations.”
• There was no dispute that Excel lends itself to greater functionality for the purposes of analysis when compared with PDF. “However, one must recall that the regulations simply provide mechanisms for remuneration. A litigator, or indeed advocate, is not compelled to submit a claim for remuneration based on PPE. It is open to them to submit a claim in special preparation or indeed a combination of PPE and special preparation.”
  
• Special preparation claims are not limited to work in excess of the 10,000 PPE limit. “Simply because documents were considered in Excel it does not mean that remuneration based on an Excel page count will automatically follow.”
• Whilst the Costs Judge in Ahmed considered there to be merit in using the PDF version to arrive at an accurate page count for the purposes of calculating remuneration, that presumes that the PDF version of a document is legible. Where pages had to be enlarged to be legible the PPE count would increase. The Costs Judge acknowledged that “whilst in the vast majority of cases the PDF version will provide an accurate reflection of what would otherwise be a printed page count for remuneration purposes under the regulations, it will not always produce an accurate page count. Clearly adjustments have to be made where such instances arise.”
• E.g. in Ahmed small font size text made the PDF illegible.

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H. APPEAL PROCESS IN SENIOR COURTS COSTS OFFICE CASES

• Request Written Reasons (after appeal against initial determination is unsuccessful)
• 21 day time limit after WR to lodge appeal (can be flexible but increasingly less so)
• Court issue fee of £100 (refundable if successful plus travel; you can also claim for time spent preparing appeal)

Damian Nolan specialises in serious crime and fraud work. He undertakes defence work mainly, but is also a Category 4 Prosecutor. He has been appointed to the CPS Specialist Rape and Child Sexual Abuse List and is a member of both the Serious Crime Panel and the Fraud Panel. In the 2019 and 2020 editions of Chambers and Partners, Damian was one of only 3 junior counsel ranked in Tier 1 on Circuit.