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High Court issues guidance on PPE claims

Posted on May 18, 2017

The High Court has given extensive guidance on calculating the number of pages of prosecution evidence (PPE) in graduated fee cases, after upholding a costs judge’s ruling in favour of the defendant’s solicitors.

The Secretary of State for Justice the Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB) saw SVS represent a woman acquitted of a criminal charge.

SVS’s claim for fees included 1,571 pages of electronic material in its total count of the PPE. An LAA determining officer found these pages were unused material and therefore did not count as PPE. On SVS’s appeal, Costs Judge Simons ruled that the electronic material should properly be included when counting the PPE.

He decided that the content of the material was central to the case. “It would, in my judgment, be an unjust interpretation of the regulations to conclude that material that had been served without a notice of additional evidence must automatically be regarded as unused material and therefore excluded from the PPE count.

“In my judgment, the material… forms part of the served prosecution documents. I am satisfied that the contents of this electronically served material is such that, taking into account the nature and content of the document and all the relevant circumstances, it is appropriate that it should be included in the PPE.”

The Lord Chancellor appealed. Mr Justice Holroyde, sitting with Master Rowley as an assessor, admitted fresh evidence from the LAA which was not before the costs judge – despite criticising the LAA for leaving it so late – and said the number of PPE in dispute was actually 1,262, as the other pages were duplicates of ones that had already been served.

The Lord Chancellor argued that the excluded material was not relied on by the prosecution and was therefore not exhibited: it was only ever disclosed as unused material, and could not form part of the PPE for graduated fee purposes.

SVS submitted that the totality of the downloads were central to the case and that, however the excluded parts were initially viewed by the prosecution, the costs judge was right to conclude that they formed part of the served prosecution documents and so were correctly included as PPE.

Holroyde J highlighted the importance of the defence agreeing a schedule or some proposed agreed facts to the proper progression of trials, adding: “But it is important to bear in mind that the role of the defence lawyers is often not confined to checking the accuracy of the summaries of the material which the prosecution has chosen to include: it often extends also to checking the surrounding material to ensure that the schedule does not omit anything which should properly be included in order to present a fair summary of the totality of the evidence and exhibits which are being summarised.

“It may therefore often be necessary to review what has been omitted before being able to agree to the accuracy of that which has been included. It is, of course, also important to bear in mind that the prosecution are not obliged to call every witness who may have some admissible evidence to give about the facts of a case, and that the prosecution are obliged to follow the provisions of the CPIA in relation to disclosure of unused material. The distinction between evidence and exhibits which are served, and unused material which is disclosed, is a crucial one.”

The problem in this case, he said, was that both the Crown Prosecution Service and the LAA assumed that only the evidence and exhibits on which the prosecution relied could ever be ‘served’, and that ‘served’ evidence was necessarily identical to the evidence and exhibits on which the prosecution relied.

Holroyde J said: “Sometimes that will be so; but it is in my judgment a mistake to think that it will always be so. It is frequently the case that the prosecution evidence and exhibits include material which cannot realistically be said to be ‘relied upon’ by the prosecution, for example because it is an irrelevant part of a statement or exhibit which also contains relevant material, or because it is a part of the material which is inconsistent with the way the prosecution case is put but is necessarily included in order to be fair to the defence.

“In the present case, as I have indicated, the prosecution exhibited the complete downloads of data relating to seven of the ten seized phones: it seems unlikely that they ‘relied on’ every piece of those data… The key point, as it seems to me, 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 the parts on which the prosecution rely can fairly be seen in their proper context.”

This meant that decisions as to the service of evidence and exhibits, and therefore as to the inclusion of material in the PPE, would be case-specific, the judge emphasised.

He then set out at length the key principles for such cases, with the starting point that only material formally served as part of the evidence and exhibits of the case could be counted as PPE.

Further: “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.”

Where the prosecution sought to rely on only part of the data recovered from a particular source, and therefore serve an exhibit which contained only some of the data, “issues may arise as to whether all of the data should be exhibited”; resolution of these would depend on the circumstances of the case. If the parties could not agree this, the trial judge should be asked, or failing that the determining officer or costs judge.

If material which has been disclosed as unused material has not in fact been served (even informally) as evidence or exhibits, and the determining officer has not concluded that it should have been served, then it cannot be included in the number of PPE.

He ruled that Master Simons was entitled to conclude that the contentious electronic material had in fact been served, and the additional material did not do enough to dislodge this. A “striking weakness” of the Lord Chancellor’s case was that no evidence was adduced as to how the case was conducted at trial or as to how the material on the disc was in fact put before the jury.

Holroyde J finished by underlining the need for all parties to be clear as to the status accorded to particular material. “A litigator or advocate who wishes to contend that particular material should be counted as PPE should if at all possible resolve that issue at trial, and ensure that it is recorded in the appropriate notice, rather than leaving the point to be considered at a later stage by the determining officer or costs judge.”


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