Dunne, SCCO Ref: 201/13

In Dunne, SCCO Ref: 201/13, the Senior Courts Costs Office allowed in part an appeal by counsel against the Legal Aid Agency’s reduction of her special preparation claim from 644 hours to 190 hours, directing that 300 hours be allowed for reading the prosecution evidence in excess of 10,000 pages.

Counsel represented James Dunne, one of twenty defendants charged with conspiracy to cheat the public revenue following an HMRC investigation into misallocation of over £1 million to taxpayers’ accounts. Three trials were needed and Dunne’s was the last. The number of excess pages was eventually agreed at 12,875. Counsel first claimed on the basis of three minutes a page. That was rejected, and she then produced a work log showing 644 hours. The Determining Officer regarded the log as not contemporaneous and assessed the claim by reference to the defendant’s limited role: he appeared on one count, the value attributed to him was £22,160.09 of a fraud of £1,193,725.63, and 28 of the 146 fraudulent payments were attributed to him. The Determining Officer allowed 190 hours, taking account of the 240 hours paid to counsel for the main defendant.

On appeal counsel said that the evidence was served on discs that were difficult to view and slow to navigate, that its contents could not be identified as relevant to her client so that all of it had to be read and cross-referenced, and that none of it was repetitive. She pointed to other counsel in the case who had been paid between 235 and 300 hours, in some cases without a work log. She also said that the main defendant had pleaded guilty at the plea and case management hearing, before the second disc was served.

The Costs Judge agreed with the Determining Officer that a claim calculated at three minutes a page is the wrong basis. The fee must be calculated from the number of hours the Determining Officer considers reasonable to read the excess pages, and it is incumbent on an advocate to provide a contemporaneous work log; failure to do so can lead to rejection of the claim. Where the claim is not rejected, the Determining Officer must make a value judgment on the information available and from experience.

The Costs Judge accepted that the contents of the discs were not easily identifiable and that some data was slow to retrieve, and held that 190 hours undervalued the time reasonably spent. The allowance of 240 hours to counsel for the main defendant, who had pleaded guilty early and before much further material was served, was significant. A reasonable number of hours to read the excess pages was 300, and the appeal succeeded to that extent.