28 July 2022

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Costs judge urges AGFS revision after barrister’s claim falls through “very large crack”

Counsel did work of same quantity and importance as other barristers in case but regulations did not allow judge any discretion

A costs judge has urged changes to the advocates graduated fee scheme (AGFS) to close the “very large cracks” through which fee claims can fall.

Master Rowley began his ruling in R v Kennedy [2022] EWHC 1782 (SCCO) by observing: “From time to time, costs judges make the comment in decisions that there is ‘no equity in the regulations’. Those regulations being the Criminal Legal Aid (Remuneration) Regulations 2013.

“The comment is invariably made as a lament in circumstances where a more equitable decision could be made if the judge had any discretion in the matter. A little disconcertingly, determining officers have recently quoted this comment as if it is said in some positive way. The circumstances of this case demonstrate the true meaning of that comment since the outcome is not an equitable one.”

Barrister Victoria Meads Counsel represented Christopher Kennedy, who faced two counts of people smuggling. There were seven others in the conspiracy and the composite indictment before the Old Bailey (pictured) contained 43 counts, 39 of which related to the manslaughter of would-be immigrants who were found to have died in the back of a lorry.

In preparing for the trial, Ms Meads and her instructing solicitors had to consider all aspects of the case, including the evidence relating to the manslaughter, as the prosecution ran the case against their client as if he were subject to the manslaughter counts. The Crown asserted there was no difference as between Mr Kennedy and the other defendants.

However, only Ms Meads – “and presumably Mr Scobie QC her leading counsel” – were not paid on the basis of band 1 offences (murder and manslaughter); instead they were paid under band 14, exploitation and human trafficking offences, a category introduced in 2018

All the solicitors, including Mr Kennedy’s, were paid under the litigators graduated fee scheme on the basis of a class A offence, because that scheme does not make provision for exploitation and human trafficking offences.

Judge Rowley said: “The stark reality is that there is no discretion available to the determining officer, or the costs judge on appeal, to reclassify an offence with which a defendant was charged where it clearly falls within a particular band.

“Consequently, notwithstanding the fact that counsel no doubt did work of the same quantity and importance in preparing her client's defence as those actually facing the manslaughter counts, her fee under the advocates graduated fee scheme does not compare. There is no parity between the co-defendants or between the litigator and advocate.

“Whilst I can urge those responsible for considering amendments to the scheme to look at the very large cracks through which this case has fallen, that will be, I am sure, of little comfort to counsel.”