The criminal costs appeal decision in R v Ahmed SCCO Ref:182-19, dated 20th April 2020, reiterates the approach that Determining Officers should use in calculating PPE for cases which involve PDF and Excel formatted electronic evidence.
The Appellant Litigators, Faraday Solicitors, successfully argued for an increase in the PPE count, as some of the PDF material had a reduced font size that made the data page barely legible . That material was allowed on an Excel format calculation.
Master Nagalingam, Costs Judge partially allowed the appeal; increasing the PPE count by 2000 pages, reimbursing the £100 court issue fee and awarding £1000 appeal costs.
The Appellant Litigators had prior to the appeal hearing been allowed a PPE count of 4825, as against a claim for 10,000 pages, with approximately 20,000 pages of electronic exhibits served on various discs.
The Defendant represented by the Appellant Litigators, faced an indictment charging conspiracy to commit fraud by making false representations and money laundering.
The fraud involved victims being contacted by telephone by someone who identified themselves as a Police Officer with the intention of tricking them into handing over money, typically savings, on the pretence it was necessary as part of a Police investigation and to foil an attempted banking fraud.
The Defendant was present on two occasions when money was collected from victims of the fraud and involved in the actual collection of packages from the victims.
The Defendant denied knowing any of the co-conspirators save for one defendant and said that any cell site, telecoms or handset data showing the Defendant had travelled to the home address of victims at the time money was taken from the victims was in fact for entirely innocent reasons. The Defendant denied taking any money or being knowingly involved in a fraud gang. He said he had attended the victims’ addresses under the misapprehension that he was there to accompany an acquaintance whilst they collected money for a car they had sold, and who didn’t want to travel alone with large amounts of money.
The cost appeal considered whether the page count calculation should be based on the Excel or/and PDF formats of the electronic served used evidence of telephone download.
The Criminal Legal Aid (Remuneration) Regulations 2013 (‘the 2013 Regulations’) applied.
It was accepted by both parties that authoritative guidance was given in Lord Chancellor v. SVS Solicitors  EWHC 1045 (QB), in particular the principles set out at paragraph 50 of the same.
The Appellant additionally cited the judgments in R v O’Rourke  SCCO Ref 10/17, 34/17 & 47/17, R v Mooney  SCCO Ref 99/18 and Lord Chancellor v Edward Hayes LLP  EWHC 138 (QB).
The Respondent Legal Aid Agency cited a number of judgments including R v Napper (SCCO 156/15), R v Daugintis & Ors (SCCO Ref: 154/17, 155/17 & 177/17) and R v Frempong (SCCO Ref: 84/18).
The Appellants emphasised that a defence expert had examined the electronic data and confirmed that he would always use Excel versions of the data only, as this was a more reliable and detailed version of data, a factor which Litigators rely upon too when looking at data served on disc. Stating that the Excel better lends itself to analysis by way of various filters and tools with additional functionality not present in the PDF. Excel is, in the opinion of the expert, the “best format in which to work.”
The Respondent LAA accepted that the telephone data was served and relied on by the prosecution, and was important evidence. Further, that the appeal is correctly framed in terms of using Excel or PDF formats for the purposes of calculating a PPE page count.
The LAA also accepted that parties will routinely consider the Excel version because it can be manipulated and filtered. However, the LAA argued that PDF version of the evidence demonstrates an accurate page count were the same to be reproduced in printed format, contrasting the Excel format where a print preview (to obtain a page count) produces an unreasonably high and misrepresentative page count.
The LAA argued that the PDF version should be considered as the “source material” and basis of remuneration on the basis of a PDF page count and that the appropriate means by which to remunerate any additional costs arising out of analysis of the Excel data would be my means of a claim for special preparation.
Cost Judge conclusions
This is a decision as to what proportion of the evidence served electronically ought to be remunerated as PPE. Part of the outcome of this appeal rests with the question of whether to base the page count on the PDF version of the exhibits, the Excel versions, or a combination of the two. The Appellant seeks either of the latter two options and submit that either would take them over the 10,000 PPE count.
Mobile telephone handset downloads typically fall within the definition of Paragraph 1(5) of Schedule 2 of the Criminal Legal Aid (Remuneration) Regulations 2013 and so the extent to which downloaded data is included in the PPE count by a Determining Officer is a question of appropriateness, taking into account the nature of the data and all relevant circumstances.
The LAA recognised that the Appellant is under a duty to consider all served used evidence. However, it does not follow that all served electronic used evidence is then automatically included as PPE for the purposes of calculating remuneration. If that were the case, then Paragraph 1(5) of Schedule 2 of the Criminal Legal Aid (Remuneration) Regulations 2013 would be redundant. One must recall that once a data set is established as ‘prosecution evidence’, the key remaining word of “PPE” is ‘pages’. Thus, it falls to the Determining Officer, or the Costs Judge on appeal, to consider what a ‘page’ of evidence is as well as whether that page is appropriate for inclusion in the PPE count?
The Costs Judge 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.”
The issue in dispute is whether the Determining Officer was correct to include some, but not all, of the electronic material within the PPE count and in particular whether the Determining Officer exercised their discretion reasonably to quantify the PPE by reference to material in PDF rather than Excel format.
The Legal Aid Agency or the Court are not bound by the page count for electronic evidence settled on by prosecution and defence counsel. Even the Notice of Further Evidence form itself recognises that the page count is notional.
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 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.”
Both parties relied on the decision in Lord Chancellor v SVS Solicitors  EWHC 1045 (QB). “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.”
As observed by Master Brown in R v Daugintis:
“The relevant provisions give the Determining Officer, and this Court, a discretion in determining which material is to be included for the purpose of assessing PPE having regard to “the nature of the document and any other relevant circumstances”. Where material is served in two electronic forms, one for ease of manipulation and analysis but the other more representative of the material if set out in printed page format, that seems to me to be a highly relevant consideration for determining the extent to which the material should count for PPE purposes”.
Consideration of which version is best representative of a printed page format is highly relevant. The regulations explicitly recognise that litigators who represent Defendants are entitled to be paid for the work they do. The LGF scheme is a remuneration mechanism which relies on the exercise of discretion in determining what is an appropriate page count based on the nature of the document in question and any other relevant circumstances.
Having reviewed the served used evidence in both Excel and PDF format the Costs Judge did not consider it appropriate to base any page count on the allowance of both formats for any one exhibit. That would be duplication, based on my conclusion that each version is not distinguishable save for their functionality.
Further, having reviewed the exhibits the Costs Judge considered it would not be appropriate to base the page count on the Excel version throughout. The Excel versions are not representative of how a printed page count would look. The Excel versions produce an entirely distorted page count and to allow a page count based entirely on the same would be to ignore the nature of the electronic evidence in the case.
However, in relation to images on a specific exhibit and to account for the clear difficulties in reading the PDF pages of documents relating to elements of the downloaded data, the Costs Judge considered it appropriate to increase the total allowance for PPE by a further 2,000 pages, to produce a total PPE of 6825.
Colin Wells, Barrister