Costs News

24 November 2021
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High Court overturns costs judge’s ruling to grant advocates costs out of central funds

The High Court has overturned a costs judge’s decision that an advocate appointed by the court to act in proceedings under section 4A of the Criminal Procedure (Insanity) Act 1964 (CPIA) following a finding that the defendant is not fit to be tried should be paid out of central funds.

Mrs Justice Lambert reinstated the determining officers’ original decisions in four conjoined cases that the lawyers should instead be paid under the advocates' graduated fee scheme.

The judge recounted how, in January 2021, Costs Judge Whalan held that, following a determination of unfitness, the status and function of the legal representative changed: the hearing moved from criminal to non-criminal proceedings and the appointment of the advocate by the court reflected this distinction.

He said the representation order under which the advocate had been acting up to that point was not revoked, because legal aid may form the basis of remuneration in the event that the defendant regained capacity and was subject to continued criminal proceedings.

However, so long as the proceedings under section 4A continued, the payment should be made out of central funds, not the legal aid fund.

On appeal in Lord Chancellor v Ross and Ors [2021] EWHC 2961 (QB), Lambert J said the correct starting point for the determination of the appropriate and lawful mechanism for remuneration of the advocates was the Legal Aid, Sentencing and Punishment of Offenders Act 2013 (LASPO) and paragraph 31 of schedule 1 of the Criminal Legal Aid (Remuneration) Regulations made under it the same year.

The prescribed scheme in this was the advocates' graduated fee scheme.

The question then was whether section 4A proceedings were "criminal proceedings" as defined in section 14(a) of LASPO. Lambert J said a “straightforward linguistic interpretation” of section 14(a) – which covers "proceedings before a court for dealing with an individual accused of an offence" – indicated that it covered proceedings under section 4A of the CPIA.

This interpretation was supported by the 2013 regulations themselves, she noted. “Paragraph 31 of schedule 1 of the 2013 regulations could not be clearer in prescribing that a court-appointed representative subject to a pre-existing representation order should be paid via the graduated fee scheme. They are mandatory in their effect.

“Payment must be via the graduated fee scheme (although the legal representative has a choice between claiming the cracked trial fee or the fee appropriate for the length of the hearing).

“It would be a curious outcome if, notwithstanding their clarity and express nature, paragraph 31 was robbed of any effect on the basis that section 4A proceedings were not ‘criminal proceedings’ as defined in LASPO.”

She said Costs Judge Whalan’s starting point “should have been the legislation and regulations made thereunder rather than the nature of section 4A proceedings and whether those proceedings bore the hallmarks of a criminal trial” – she pointed out that section 14(a) did not require this.

Lambert J quashed Costs Judge Whalan’s order and substituted it with an order that payment to the respondents should be via the graduated fee scheme.

Florence Iveson (instructed by Government Legal Department) for the appellant. In person: the respondents.

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