Dunne, SCCO Ref: 201/13
1. Miss Louise Santamera of Counsel appeals against the decision made by the Determining Officer at the Legal Aid Agency to reduce her claim for special preparation from 644 hours to 190 hours.
Criminal Defence Service (Funding) Order 2007 – Schedule 1
14. Fees for Special Preparation
(1) This paragraph applies where, in any case on indictment in the Crown Court in respect of which a graduated fee is payable under Part 2 or Part 3 –
(a) …
(b) The number of pages of prosecution evidence, as defined in paragraph 1(2), exceeds 10,000 and the appropriate officer considers it reasonable to make a payment in excess of the graduate fee payable under this schedule.
(3) The amount of the special preparation fee must be calculated –
(a) …
(b) where sub-paragraph (1)(b) applies, from the number of hours which the appropriate officer considers reasonable to read the excess pages;
and in each case using the rates of hourly fees set out in the table following paragraph 19 as appropriate to the category of trial advocate.
2. Miss Santamera represented James Dunne who was one of twenty individuals being charged with the offence of conspiracy to cheat the public revenue. The case was named Operation Fluency and arose after a lengthy internal investigation rendered by HMRC into misallocations of large sums of money to taxpayers’ accounts. The total loss of revenue by HMRC was in excess of £1 million.
3. Due to the large number of defendants, the Court decided that three trials would be necessary with James Dunne’s trial being the last. Dunne faced an indictment containing one count of conspiracy to cheat the public revenue, with the main Defendant, a senior tax inspector, Mr Michael Kitchen.
4. A considerable number of pages of prosecution evidence were served. According to Miss Santamera’s original claim for special preparation, 22,606 pages of prosecution evidence were served. In written reasons dated 2 July 2013 there is reference to the number of pages in excess of 10,000 as being 9,944, and in Miss Santamera’s Grounds of Appeal she states that the excess number of pages was 12,875. I am told that the number of excess pages is now agreed at 12,875.
5. Miss Santamera’s claim for special preparation was based on claiming three minutes per page as a reasonable time to read the pages in excess of 10,000.
6. On 26 March 2013 the Advocate Graduated Fee Team rejected the claim for preparation stating:
“Work is ineligible within the criteria for special preparation as Counsel has applied a x page calculation. This cannot be accepted – she must provide her actual work log scheduling the actual time spent on these pages”.
7. Miss Santamera sought a review and submitted a seven page work log showing 644 hours. The outcome of the re-determination was a detailed response from the Determining Officer who concluded that 190 hours was sufficient time to consider the exhibits relevant to the client. The Determining Officer referred to the work log which she stated did not appear to be contemporaneous and that as Counsel had not kept an accurate log of work actually completed, the Determining Officer could only assess the claim by examining the Defendant’s role within the case, his position on the indictment, and the nature of the exhibits as described by Counsel. She noted:
“(i) The Defendant appears only on count 4 of the six count indictments.
(ii) The Defendant is sixteenth on an indictment of twenty.
(iii) The value of the fraud is £1,193,725.63, and the value attributed to the Defendant is £22,160.09.
(iv) The fraud concerns 146 fraudulent payments of which 28 are attributed to the Defendant.
All these factors together indicate that 644 hours or indeed the requested three minutes per page is an unreasonable claim as the client’s role is limited, and even in respect of a defendant with greater involvement, the exhibits themselves do not warrant 644 hours of consideration time”.
8. Miss Santamera had sent with her request for re-determination discs of the evidence that had been served and it is clear that the Determining Officer had considered the contents of the discs when making her decision.
9. Still dissatisfied, Miss Santamera sought written reasons and those reasons confirmed the earlier re-determination made by the Determining Officer.
10. Miss Santamera now appeals. She states that the discs themselves were difficult to view and that, as a result of these difficulties (which had been acknowledged by the Determining Officer) more time was spent by Counsel viewing the discs than may have been spent if the evidence had been served on paper. Switching between the different documents on the disc proved to be very time consuming, and even downloading the contents onto a hard drive did not speed up the process.
11. Miss Santamera challenges the statement made by the Determining Officer that she made no attempt to isolate the exhibits most relevant to her client, allowing her to focus on those and skim through the balance that did not directly concern her client. Miss Santamera states that it was necessary to scrutinise all the evidence against her client and the main Defendant, Mr Kitchen, and failing to do so would put her at risk of failing in her duty to protect her client’s interest. Miss Santamera states that none of the exhibits were repetitive or duplicated.
12. Counsel also refers to a lack of a contemporaneous work log. She states that this was the first case that she had been involved with which required a claim for special preparation and she simply consulted her colleagues at the Bar as to what was necessary. She refers to claims for special preparation made by Counsel representing other defendants involved in the case. Five of these Counsel were paid between 235 hours and 300 hours for special preparation, and in some cases no work log had been provided. Miss Santamera states that the Legal Aid Agency is not applying guidelines with any consistency in that some claims for special preparation are met with a contemporaneous work schedule and some are met without a work schedule.
13. Miss Santamera attended before me at the hearing of this appeal. She informed me that when the contents of the discs were served, it was not possible for the contents to be identifiable as being relevant to her client, and consequently it was necessary to view all of the discs. The contents of various schedules had to be cross-referenced with bank statements and then cross-referenced with other schedules and checked against what the client had said in his interviews in order that she could be satisfied not only about accuracy but also about continuity.
14. The appeal was also attended by the Determining Officer, Miss Burdett, as well as by a representative from the Legal Aid Agency. I gave permission for Miss Burdett to address me. She informed me that amongst other factors, she based her decision of 190 hours on the fact that Counsel for the Lead Defendant, Mr Kitchen, had claimed and been paid 240 hours for special preparation. She also informed me that she had been through the discs herself and she queried the necessity of the detailed analysis of every single document.
15. In response, Miss Santamera informed me that Mr Kitchen had in fact pleaded guilty at the plea and case management hearing which was before the second disc had been served, and on that basis it was unreasonable for her to be paid a lesser amount of special preparation time than Counsel representing Mr Kitchen.
16. I agree with the Determining Officer that it is not the correct basis to formulate a claim for special preparation at a rate of three minutes per page. The regulations state that the fee must be calculated from the number of hours which the Determining Officer considers it reasonable to read the excess pages above 10,000. It is incumbent on any advocate to provide a contemporaneous work log. Failure to do so can lead to the rejection of the claim for special preparation. If the special preparation claim is not rejected, the Determining Officer must make a value judgment based on the information provided and upon his or her experience.
17. I accept Miss Santamera’s submissions that the contents of the discs were not easily identifiable and that there was significant slowness in retrieving some data. In my judgment, the 190 hours allowed by the Determining Officer undervalues the amount of time reasonably spent by Miss Santamera. It seems to be significant that 240 hours for special preparation was allowed for Counsel for Michael Kitchen, notwithstanding the fact that Mr Kitchen pleaded guilty at an early stage and that a significant amount of further documentation was served following his plea. In my judgment, a reasonable number of hours necessary to read the excess pages is 300.
18. Accordingly, to that extent, this appeal succeeds and I direct the Determining Officer to increase the claim for special preparation from 190 hours to 300 hours.