[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Nguyen, R. v [2025] EWHC 633 (SCCO) (17 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2025/633.html Cite as: [2025] EWHC 633 (SCCO)

[New search] [Printable PDF version] [Help]

IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE

Judgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013

		Thomas More Building Royal Courts of Justice London, WC2A 2LL
		17th March 2025

The appeal has been successful, for the reasons set out below.

The appropriate additional payment, to which should be added the £100 paid on appeal, plus costs of £750 (+any VAT payable) should accordingly be made to the Appellants. 

Costs Judge Whalan:

Introduction
1. Tyler Hoffman Solicitors ('the Appellants') appeal against the decision of the Determining Officer at the Legal Aid Agency ('the Respondent') to reduce the number of pages of prosecution evidence ('PPE') forming part of its Litigator's Graduated Fees Scheme ('LGFS') claim. The issue on appeal is whether the total PPE count should be 10,000, as claimed, or 882, as allowed.
Background
2. The Appellants represented Tan Cong Nguyen ('the Defendant'), who was charged with three co-defendants at Bradford Crown Court on an indictment alleging one count of producing Class B drug, namely cannabis. The Appellants, it is noted, also represented one of the co-defendants, Dung Quang Tran.
3. On 17^th August 2023, the police executed a search warrant at several industrial units on a Business Park in Halifax. It was discovered that one unit had been specifically converted to grow cannabis. The Defendant and his three co-defendants, all Vietnamese nationals, were arrested at the scene. A Samsung mobile phone was seized from the storage room at the unit and the datum it contained was subsequently downloaded and exhibited as AS/1. Three other phones were also seized and exhibited as AS/2, CLS/1 and JB/1, but they are not relevant to this appeal.
4. The Defendant entered a not guilty plea at a Pre-Trial Preparation Hearing in August 2023 and the trial was listed for February 2024. The trial was ultimately adjourned until August 2024, after 'a large quantity of new potentially disclosable material' became available.
5. The Defendant relied on a modern slavery defence, but this was disputed by the Crown.
6. The mobile phone datum exhibited as AS/1 contained a total of 28,872 pages of evidence. All this material, submits the Appellants, was uploaded to GalaxKey, the digital case file. The Appellants submit that the totality of this datum should be included in the PPE count, subject to the 10,000 page 'cap' set out in the regulations. The Respondent concedes a PPE count of 882, comprising 41 pages of witness statements, 83 pages of exhibits,7 pages of streamline forensic reports and 691 pages of electronic evidence recovered from AS/1. The electronic datum included in the PPE count comprised call logs (99 pages), chats (140 pages), instant messages (1 page), social media usage (441 pages) and web history (10 pages).
The Appeal
7. In this appeal, a Notice of Hearing was served on 28^th June 2024, listing the oral hearing on 18^th October 2024. Shortly before the hearing, Ms Margaret-Victoria Quarshie, a Lawyer of the Government Legal Department, e-mailed the following request to the court:

Unfortunately, due to an administrative oversight there was no hearing reminder in the diary and we have not filed submissions for the hearing. We do not have availability to attend the hearing this morning. On behalf of the Respondent we request an adjournment so we can review the material and prepare submissions.

This informal request for adjournment was opposed by the Appellants who pointed out that the Respondent had had almost four months' notice of the listing. At the hearing on 18^th October 2024, I formally considered and refused the Respondent's application to adjourn. I heard submissions from Mr Mohammed Imran Khan, counsel for the Appellants. I then indicated that I would reserve judgment, allowing the Respondent a chance, if so advised, to file written submissions by 8^th November 2024, with the Appellants, in turn, to reply by 15^th November 2024.

The Regulations
8. The Representation Order is dated 19^th August 2023 and so the Criminal Legal Aid (Remuneration) Regulations 2013 (the '2013 Regulations') apply, as amended.
9. Paragraph 1 of Schedule 2 to the 2013 Regulations provides (where relevant) as follows:

1. Interpretation

…

(2) For the purposes of this Schedule, the number of pages of prosecution evidence served on the court must be determined in accordance with sub-paragraphs (3) to (5).

(3) The number of pages of prosecution evidence includes all –

(a) witness statements;

(b) documentary and pictorial exhibits;

(c) records of interviews with the assisted person; and

(d) records of interviews with other defendants,

which form part of the committal or served prosecution documents or which are included in any notice of additional evidence.

(4) Subject to sub-paragraph (5), a document served by the prosecution in electronic form is included in the number of pages of prosecution evidence.

(5) A documentary or pictorial exhibit which –

(a) has been served by the prosecution in electronic form; and

(b) has never existed in paper form,

is not included within the number of pages of prosecution evidence unless the appropriate officer decides that it would be appropriate to include it in the pages of prosecution evidence taking in account the nature of the document and any other relevant circumstances.

Case guidance
10. Authoritative guidance was given in Lord Chancellor v. SVS Solicitors [2017] EWHC 1045 (QB) where Mr Justice Holroyde stated (at para. 50):

(i) The starting point is that only served evidence and exhibits can be counted as PPE. Material which is only disclosed as unused material cannot be PPE.

(ii) In this context, references to "served" evidence and exhibits must mean "served as part of the evidence and exhibits in the case". The evidence on which the prosecution rely will of course be served; but evidence may be served even though the prosecution does not specifically rely on every part of it.

(iii) Where evidence and exhibits are formally served as part of the material on the basis of which a defendant is sent for trial, or under a subsequent notice of additional evidence, and are recorded as such in the relevant notices, there is no difficulty in concluding that they are served. But paragraph 1(3) of Schedule 2 to the 2013 Regulations only says that the number of PPE "includes" such material: it does not say that the number of PPE "comprises only" such material.

(iv) "Service" may therefore be informal. Formal service is of course much to be preferred, both because it is required by the Criminal Procedure Rules and because it avoids subsequent arguments about the status of material. But it would be in nobody's interests to penalise informality if, in sensibly and cooperatively progressing a trial, the advocates dispense with the need for service of a notice of additional evidence, before further evidence could be adduced, and all parties subsequently overlooked the need for the prosecution to serve the requisite notice ex post facto.

(v) The phrase "served on the court" seems to me to do no more than identify a convenient form of evidence as to what has been served by the prosecution on the defendant. I do not think that "service on the court" is a necessary pre-condition of evidence counting as part of the PPE. If 100 pages of further evidence and exhibits were served on a defendant under cover of a notice of additional evidence, it cannot be right that those 100 pages could be excluded from the count of PPE merely because the notice had for some reason not reached the court.

(vi) In short, 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.

(vii) Where the prosecution seek to rely on only part of the data recovered from a particular source, and therefore served an exhibit which contains only some of the data, issues may arise as to whether all of the data should be exhibited. The resolution of such issues would depend on the circumstances of the particular case, and on whether the data which have been exhibited can only fairly be considered in the light of the totality of the data. It should almost always be possible for the parties to resolve such issues between themselves, and it is in the interests of all concerned that a clear decision is reached and any necessary notice of additional evidence served. If, exceptionally, the parties are unable to agree as to what should be served, the trial judge can be asked whether he or she is prepared to make a ruling in the exercise of his case management powers. In such circumstances, the trial judge (if willing to make a ruling) will have to consider all the circumstances of the case before deciding whether the prosecution should be directed either to exhibit the underlying material or to present their case without the extracted material on which they seek to rely.

(viii) If – regrettably – the status of particular material has not been clearly resolved between the parties, or (exceptionally) by a ruling of the trial judge, then the Determining Office (or, on appeal, the Costs Judge) will have to determine it in the light of the information which is available. The view initially taken by the prosecution as to the status of the material will be a very important consideration, and will often be decisive, but is not necessarily so: if in reality the material was of central importance to the trial (and not merely helpful to the defence), the Determining Officer (or Costs Judge) will be entitled to conclude that it was in fact served, and that the absence of formal service should not affect its inclusion in the PPE. Again, this will be a case-specific decision. In making that decision, the Determining Officer (or Costs Judge) will be entitled to regard the failure of the parties to reach any agreement, or to seek a ruling from the trial judge, as a powerful indication that the prosecution's initial view as to the status of the material was correct. If the Determining Officer (or Costs Judge) is unable to conclude that material was in fact served, then it must be treated as unused material, even if it was important to the defence.

(ix) If an exhibit is served, but in electronic form and in circumstances which come within paragraph 1(5) of Schedule 2, the Determining Officer (or, on appeal, the Costs Judge) will have a discretion as to whether he or she considers it appropriate to include it in the PPE. As I have indicated above, the LAA's Crown Court Fee Guidance explains the factors which should be considered. This is an important and valuable control mechanism which ensures the public funds are not expended inappropriately.

(x) If an exhibit is served in electronic form but the Determining Officer (or Costs Judge) considers it inappropriate to include it in the count of PPE, a claim for special preparation may be made by the solicitors in the limited circumstances defined by paragraph 20 of Schedule 2.

(xi) 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 (as indicated at (viii) above), then it cannot be included in the number of PPE. In such circumstances, the discretion under paragraph 1(5) does not apply.

11. I am referred additionally to the decisions in R v. Jalibaghodelezhi [2014] 4 Costs CLR 781, R v. Sereika [2018] SCCO Ref: 168/18, R v. Barrass [2020] SC-2020-CRI-000083, R v. Mucktar Khan [2019], SCCO Ref: 2/13, R v. Lawrence [2022] EWHC 3355, and Lord Chancellor v. Lan and Meerbux Solicitors [2023] EWHC 1186.
The submissions
12. The Respondent's case is set out in Written Reasons dated 17^th October 2024 and in Submissions drafted by Alice Walker of the Government Legal Department dated 8^th November 2024. The Appellants' case are set out in Notice of Appeal and, more particularly, in various documents submitted pursuant to the LGFS claim. As noted, Mr Khan, Counsel, attended and made oral submissions for the Appellants at the hearing on 18^th October 2024.
My analysis and conclusions
13. The Respondent, in summary, bemoans the fact that the Appellants have 'not filed grounds of appeal nor provided a breakdown of the categories of evidence which are claimed as PPE' (Walker, para. 3). There is some truth in this, but the Respondent's submission would have been more persuasive had a representative attended the oral hearing on 18^th October 2024 and heard the considered submissions of Mr Khan. Otherwise, the Respondent submits that the Determining Officer's categorisation was reasonable, insofar as he included call logs, charts, messages, social media usage and web history but excluded other voluminous categories from the PPE count, including applications, e-mails, images, applications and the timeline, amongst other categories.
14. The Appellants, in summary, submit that the prosecution relied on the phone material as a whole to disprove the Defendant's modern slavery defence. Thus, the entirety of the material was highlighted to the jury to emphasise the sheer usage of the phone, demonstrating purportedly that they were free agents with the means to summons help, should they have wanted to. Specifically, the prosecution relied on some images downloaded from the phone, which depicted the contents of a notebook showing handwritten lists in Vietnamese. These lists were translated into English and supplied to the jury. Mr Khan, in his oral submissions, referred to the fact that the Crown relied on the Defendant's 'holistic use of the mobile phone' as a collective illustration that he and his co-defendants were not in any way restricted in their liberty. Demonstrating that they could engage repeatedly and at will within the online world corroborated the suggestion that they could have contacted the authorities at any time, should they have wished to do so.
15. I am satisfied that the Determining Officer's assessment was too conservative and that a greater proportion of the electronic datum should be allowed in the PPE count. I am also satisfied that it would not be reasonable to allow all the electronic datum into the PPE count. Many pages, including (but not limited to) meta data, audio, some activity and applications per se, along with a proportion of the images, should not be included. I reject, to this extent, the Appellants' submission that this datum should be included in its entirety. Arriving at a reasonable count in this case is not straightforward as the collective submissions of the parties do not break down the 28,872 pages on AS/1 with any specific particularity. Clearly, in my conclusion, additional allowance must be made for a % of the images, as the prosecution relied specifically on a number of images downloaded from the phone. Additionally it seems to me that some other categories of material, such as the apps. use should also be include, given the fact that the prosecution undoubtedly relied (albeit in a broad sense) on this type of usage and material. Given the 10,000 page cap in the regulations, of course, a quite significant proportion of the material is excluded anyway. Doing the best I can and on the material before me, I find and direct that 10,000 pages of electronic datum should be included in the PPE count, making a total calculation of 10131PPE (41 + 83 + 7 + 10000). To this extent, the appeal is allowed.
16. The appeal has been successful, and I allow £750 (+ any VAT payable) in costs, in addition to the £100 paid on lodging the appeal.