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	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 >> Ismail, R. v [2025] EWHC 648 (SCCO) (17 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2025/648.html Cite as: [2025] EWHC 648 (SCCO)

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IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE

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

The appeal has been unsuccessful, for the reasons set out below.
COSTS JUDGE WHALAN Introduction
1. Bradford Law Solicitors and Mr Fuad Arshad, Counsel ('the Appellants') appeal against the decision of the Determining Officer at the Legal Aid Agency ('the Respondent') in claims submitted under the Litigator's Graduated Fees Scheme ('LGFS') and the Advocate's Graduated Fees Scheme ('AGFS').
2. Both Appellants challenge the Respondent's decision to reduce the number of pages of prosecution evidence ('PPE') in the claim. The Determining Officer allowed 843 PPE, comprising 71 pages of witness statements, 191 pages of exhibits, 18 pages of forensic reports and 563 pages of electronic datum downloaded from the Defendant's mobile telephone. The electronic evidence, extracted from exhibit JMG2, comprised 54 pages of call log, 371 pages of chat, 14 pages of contacts, 3 pages of instant messages, 4 pages of locations, 4 pages of web history and 114 pages of images, representing 10% of the total page count for images. The Appellants submit that the total PPE count should exceed 20,000. This is relevant to the base fee to be paid to Bradford Law Solicitors, the first Appellants and the offence categorisation or banding relevant to Mr Arshad, the second Appellant. He claimed a fee based on Band 9.1, but was allowed Band 9.7, where categorisation turns on the PPE count.
Background
3. The Appellants represented Mr Mohammed Ismail ('the Defendant'), who was charged at Bradford Crown Court on an indictment alleging possession of a Class A drug with intent to supply, possession of a Class B drug with intent to supply, and possession of criminal property. The Defendant pleaded not guilty but changed his pleas at trial. He was sentenced to 5.5 years' imprisonment.
4. The prosecution case relied, in part, on datum downloaded from the Defendant's mobile telephone, pursuant to an extraction report exhibited at JMG2. This evidence was adduced to demonstrate the assertion that the Defendant had played a significant role in an Organised Crime Group ('OCG') engaged in large scale drug dealing. Mr Arshad states that the prosecution extracted about 194 relevant items from the phone reports. These included some messages, but were mostly images. The Respondent concedes that images had some relevance to the PPE count, and have allowed 10% of the total.
The Regulations
5. The Criminal Legal Aid (Remuneration) Regulations 2013 ('the 2013 Regulations') apply, as amended, in these appeals.
6. 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
7. 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.

8. I am referred additionally to the decisions in R v. Jalibaghodelezhi [2014] 4 Costs CLR 781, R v. King [2019] SCCO Ref: 170/19, R v. Barrass [2020] SC-2020-CRI-000083, R v. Carter [2020] SC-2020-CRI-000100, R v. Gyanfi [2022] EWHC 2550 (SCCO), R v. Lawrence [2022] EWHC 3355, and Lord Chancellor v. Lan and Meerbux Solicitors [2023] EWHC 1186.
The submissions
9. The Respondent's case is set out in Written Reasons dated 23^rd February 2024 (litigators) and 16^th January 2024 (advocate), and in Written Submissions drafted by Ms Alice Walker, of the Government Legal Department, dated 21^st February 2025. Mr Orde appeared and made oral submissions on behalf of the Respondent at the hearing on 28^th February 2025.
10. The Appellants' case is set out in Grounds of Appeal dated 31^st January 2024 and in submissions entitled Advocate and Litigator's Grounds in Support of Redetermination (15 pages) dated 3^rd January 2024. Mr Arshad attended and made oral submissions on behalf of both Appellants at the hearing on 28^th February 2025.
My analysis and conclusions
11. These appeals raise effectively two relevant questions. First, what is the total page count for images, a relevant and contested category of electronic datum? Second, what proportion of this total should be allowed in the PPE count?
12. The Respondent, on the first issue, submits that the total page count for images was 1138, meaning that an allowance of 10% would equate to 114 pages. He refers to an Extraction Report which, when produced as a pdf, comprises 18155 pages. The index demonstrates that the datum includes 9102 separate images. These are reproduced individually as thumbnails, with 8-9 images on a page. Nonetheless, the images are visible readily and the layout demonstrates that they are fairly easy to consider and assess. The relevant section for images falls between pages 16742 and 17880. This is, as noted, a pdf. Mr Orde submits that production as a pdf is preferable to the Excel format, as the latter necessarily reproduces pages of blank cells and other 'distortions'.
13. The Appellants, in contrast, adduce and rely on a notably different page count. Assuming that pdf is preferred as a format, the total count for exhibit JMG2, submits Mr Arshad was 23967, of which 22820 represented images. This corresponds clearly to a re-formatting in which the images are reproduced in a manner that is immediately accessible. Mr Arshad, in his oral submissions, suggested that the manner in which such material was served by the Crown was generally unfair, as it was impossible effectively to access material like images without some form of substantive re-formatting.
14. I have considered this issue carefully and ultimately prefer the submissions of the Respondents to those of the Appellants. I have seen the Extraction Report as a pdf and I can see that, where images are concerned, it is set out in a way that is reasonably accessible to the Appellants. Taking 8-9 images on a page still means that those pictures are readily identifiable. I can see that the 9102 images are reproduced on pages 16742-17880 of the Report, amounting to 1138 pages in total. I found the Appellants' submissions on this issue to be a little inconsistent and confusing. I am not satisfied that images properly comprised the page totals advanced by Mr Arshad, either in pdf or Excel format. It seems to me, meanwhile, that on the facts of this case a count by reference to the pdf was both reasonable and preferable.
15. Turning to the second issue, the Respondent submits, in summary, that while images were relevant to the PPE count, most of the pictures contained on the Defendant's phones were necessarily irrelevant to the prosecution, comprising "stock images, pictures of cars, pictures of celebrities, and images of a pornographic nature". Relying on the approach approved in R v. Carter (ibid), a 10% allowance is fair and appropriate in this case.
16. The Appellants, in summary, submit that images were relevant fundamentally to the prosecution. Quoting from paragraph 62 of Mr Arshad's written submissions, they were produced as evidence of the following:

(i) The role of the defendant in a criminal enterprise.

(ii) The extent of the defendant's knowledge of the criminal enterprise.

(iii) The defendant's close link to the original source.

(iv) The use of the taxi job as a cover for his criminality.

(v) The use of his business premises as the "hub" for storage of drugs.

(vi) A true indicator of his links to and influence within the OCG.

(vii) Whether the defendant had an operational or management function within the chain.

(viii) Whether the images demonstrated a significant, or leading or a lesser role in the OCG. The images suggested a lesser role.

(ix) Whether the images demonstrated an expectation of substantial financial or other advantage [expensive clothes, cars, watches, escort ladies]. The images did not suggest this.

(x) His awareness of the scale of the operation.

(xi) His understanding of the scale of the operation.

(xii) Whether there was a wider net of people involved or limited to the defendant.

(xiii) Whether the images showed (he) performed a limited function. The images suggested this.

(xiv) Whether the images demonstrated that the defendant performed under any direction. The images suggested this.

Mr Arshad recalled that the prosecution had extracted 194 items from the electronic datum, most (but not all) of which were images. Some of the images depicted paraphernalia consistent with the supply of drugs. Others pointed to his role as a drugs courier. Some of the images depicted a form of code, whereby bank notes (including those in foreign currency) were pictured torn in half, in circumstances where the other party produced the other half image, demonstrating thereby that he was the correct recipient. Mr Arshad also suggested that the images suggested (albeit more broadly) that the Defendant was engaged in a lifestyle funded by criminal enterprise.

17. It is clear, as the Respondent concedes, that images comprise a relevant category of electronic datum for the purposes of the PPE count. It seems that the prosecution relied on 100+ images, a comparatively high number for a case of this type. Insofar as each page would contain 8-9 images, however, this equates to, say, 20-30 pages of actual evidence. The % allowance is well established as a part of the 'important and valuable control mechanism'[ cited by Holroyde J. at paragraph 50(ix) of Lord Chancellor v. SVS Solicitors (ibid). I am satisfied, on the facts of this case, that the 10% allowance was fair and reasonable.
18. Accordingly, for these reasons, the appeals of the first and second Appellants are dismissed.

TO:	COPIES TO:
Bradford Law Solicitors 1 Marlborough Road Bradford BD8 7LD Mr Fuad Arshad Charter Sols. 1 Wilton Bradford BD5 0AX	Determining Officer Legal Aid Agency Nottingham DX 10035 Nottingham Ms Alice Walker/Mr Jonathan Orde Legal Aid Agency Central Legal Team 102 Petty France London SW1A 9AJ DX 328 London
The Senior Courts Costs Office, Thomas More Building, Royal Courts of Justice, Strand, London WC2A 2LL: DX 44454 Strand, Telephone No: 020 7947 6468, Fax No: 020 7947 6247. When corresponding with the court, please address letters to the Criminal Clerk and quote the SCCO number.