Neutral Citation Number: [2009] EWHC 2981 (QB)
Case No: QB/2009/APP/0292
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/11/2009

Before :

THE HON MR JUSTICE PENRY-DAVEY  
(sitting with assessors)

Between :

	The Lord Chancellor	Appellant	
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	Michael J Reed Ltd	Respondent	

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Neil Sheldon (instructed by the Treasury Solicitor) for the Appellant
The Respondent did not appear and was not represented.  

Hearing dates: 11 November 2009
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Judgment

The Hon Mr Justice Penry-Davey: 

1.	This is an appeal by the Lord Chancellor pursuant to Article 31 (5) of the Criminal Defence Service (Funding) Order 2007 as amended.  It concerns a single aspect of the judgment of Costs Judge Rogers on 23 April 2009, namely the decision to award a special preparation fee of £25-44. The judge set out the reasons for his decision as follows:
“6. The second head of appeal, which only relates to a sum of £25.44, raises a matter of some interest and potential importance.
7. The prosecution served on the Defendant’s Solicitors a CD, consisting of video footage of the road in question, in relation to the offence with which the Defendant was charged, namely causing death by dangerous driving.
8. The Appellant’s case is that this video footage satisfies the test set out in paragraph 15 (1) of Part 3 to Schedule 2 of the Criminal Defence Service Funding(Amendment) Order 2007, which reads as follows:
“Fees for special preparation
15 (1) This paragraph applies where, in any case on indictment in the Crown Court in respect of which a fee is payable under part 2,  any or all of the prosecution evidence, as defined in paragraph 1(2), is served in electronic form only, and the appropriate officer considers it reasonable to make a payment in excess of the fee payable under part 2.”
9. It is to be noted that the definition of pages of prosecution evidence  in paragraph 2 of Schedule 2 to Part 1 of the Funding Order in question, specifically excludes documents provided on CD-Rom or by other means of electronic communication.
10. The reason for that exclusion, of course, cannot be known, though it may well arise from the fact that Costs Judges have had to wrestle with the question of documents served electronically in a number of appeals to this office, prior to the introduction of the 2007 Litigator Fee Scheme.
11. Quite obviously, in my judgment paragraph 15 is not meant to provide an “escape hatch” in all cases where documents which could have been served in documentary form, are in fact served electronically, as otherwise the exemption in paragraph 2 would be otiose.
12. In this case the Litigator Fee Team appears to have simply decided that the video footage in question does not fall to be treated as special preparation, but is to be subsumed within the basic litigator fee allowance.
13. It seems to me that each case must, to some extent, turn on its facts, and here, what was served electronically, was a DVD of the scene of the accident, which was central to the charge made against the defendant, and, as such, it was important that his solicitor should carefully study this “document”. 
14. It was supplied in electronic form, and, in my judgment, on the facts of this case,  and I wish to emphasise these words, it does fulfil the definition of “special preparation” in paragraph 15, and accordingly, on this head also, the solicitors succeed.
15. It follows that this appeal is allowed in full”
2.       The Appellant contends that the Costs Judge was wrong to allow that element of the claim. The Respondent has taken no part in this appeal. 
3	   The Legislative Scheme – Background
The Criminal Defence Service (Funding) Order 2007 as amended (“the Order”)  provides a detailed and formulaic scheme for the calculation of fees payable to the representatives of defendants in criminal cases.  The graduated fee scheme, the current version of which is set out in the Order was first applied to advocates by way of the Criminal Defence Service (Funding) Order 2001.  The scheme was updated in the  version of the Order  which came into force on 30 April 2007.  In particular, Schedule 1 of the Order which was entitled “Advocates’ Graduated Fee Scheme” contained the detailed provision by which advocates’ fees were to be calculated with regard to the length of trial, the nature of the offence and the number of pages of prosecution evidence (PPE).  Schedule 2 to the original version of the Order was entitled “Litigators’ Fees in the Crown Court” and contained a simpler scheme by which (in short) the fees of solicitors engaged in representing defendants in the Crown Court were to be calculated by reference to specified hourly rates.  Pursuant to the Criminal Defence Service (Funding) (Amendment) Order 2007 a replacement Schedule 2 was inserted in the Order which came into force on 14th January 2008. It extended to litigators the same model of graduated fee scheme that had previously applied to advocates.  In particular, litigators’ fees were now to be calculated pursuant to formulae based upon category of offence, length of trial and pages of prosecution evidence. 
4	    An Explanatory Memorandum  was prepared by the Ministry of Justice to accompany the amendment. It stated inter alia that :
i)	By introducing a graduated fee scheme for litigators the Lord Chancellor was seeking to give effect to the recommendations made by Lord Carter in his independent review of legal aid procurement.
ii)	Lord Carter’s recommendation was for the introduction of a graduated fees scheme which would assess fees based on the complexity of a case rather than the number of hours worked. 
iii)	The graduated fees provided by the scheme had been calculated with reference to proxies for case complexity and contain uplifts that appropriately reflect and remunerate differences in both costs and complexity. 
iv)	The Legal Services Commission (LSC)  undertook consultation on detailed proposals for a Litigators’ Graduated Fee Scheme in June 2007 (with amongst others, the General Council of the Bar and the Law Society) and published the results in October 2007. The Consultation Document prepared by the LSC in June 2007 contains a section dealing with the issue of “tape footage” in the following terms:
      “3.25 Other factors identified following the consultation process and examined by the LSC include exceptional levels of unused or third party material, tape footage and confiscation hearings.  These possible uplifts were put forward due to the amount of preparation time it can take to address exceptional levels of this type of material.  The following findings were made:
Tapes
Tapes served with the Prosecution material occur in approximately 28% of cases.  There was little data on the volume of tapes in each case. These cases also have a higher proportion of PPE, averaging approximately 100 pages more than cases without the tapes. However, because of the percentage of cases affected by this potential uplift, it was felt that the “swings and roundabouts” rule would adequately cover this aspect.
5	The Legislative Scheme – Operation
Pursuant to Article 6 of the Order, claims for fees by litigators in proceedings in the Crown Court must be made and determined in accordance with the provisions set out in Schedule 2 which  was inserted by the Criminal Defence Service (Funding) (Amendment) Order 2007. The calculation of a litigator’s fees in respect of a Crown Court trial depends upon whether or not the number of pages of prosecution evidence exceeds the “PPE cut off” as set out in paragraph 4. If the number of pages does not exceed that cut off the litigator’s fee is calculated in accordance with paragraph 6. The final fee will be the basic fee, plus the length of trial proxy (if applicable) plus any uplift in respect of multiple defendants, transfers or retrials. If the number of pages of prosecution evidence does exceed the PPE cut off then the fee is calculated pursuant to the formula set out in paragraph 8.  The final fee will then be an initial fee plus an increment calculated by reference to the number of pages of prosecution evidence.  The number of pages of prosecution evidence in a particular case is calculated by reference to paragraph 1(2) of Schedule 2, which provides as follows:
“(2)  For the purposes of this Schedule, the number of pages of prosecution evidence served on the court 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, but does not include any document provided on CD – ROM or by other means of electronic communication.”
6	Paragraph 15 of Schedule 2 provides for additional fees where  prosecution evidence has been served  in electronic form only,  as follows:
“15(1) This paragraph applies where, in any case on indictment in the Crown Court in respect of which a fee is payable under part 2, any or all of the prosecution evidence, as defined in paragraph 1(2), is served in electronic form only, and the appropriate officer considers it reasonable to make a payment in excess of the fee payable under part 2.
(2) Where this paragraph applies a special preparation fee may be paid in addition to the fee payable under part 2.”
7.    The Grounds of Appeal
The Lord Chancellor advances five grounds as follows:             
(i)   For prosecution evidence to fall within the ambit of paragraph 15 of Schedule 2 to the Order it must meet the definition set out in paragraph 1(2). That definition expressly refers to “pages” of prosecution evidence and “documents” provided by way of electronic communication. It is submitted that it is impossible to equate DVD footage of this kind to documents or pages of evidence and it is submitted that the costs judge’s interpretation is contrary to the plain words of the relevant provisions.

(ii)	   The pre-enactment history of the Order makes it clear that the intention was expressly to exclude additional payment for work such as viewing DVD footage. Payment for such work it is submitted is included in the initial fee payable pursuant to paragraphs 7 and 8 of the Order.
(iii)	   The Order provides a detailed and carefully formulated scheme for the calculation of fees in criminal cases.  The costs judge’s interpretation it is submitted is contrary to that scheme. If the intention had been to permit additional fees for viewing DVD footage  or listening to tapes then the Order would have said so.
(iv)	The costs judge identified no adequate basis for his decision to award an additional fee.  The only factor identified in his judgment is that the footage  was “central to the charge” against the defendant. He did not explain why the appropriate officer was wrong to decide that no additional fee should be paid and in any event to allow the payment of a fee based on ex post facto assessment of the centrality of the material in question is both impracticable and contrary to the scheme of the legislation. 
(v)	The costs judge failed to identify any or adequate basis for his implicit decision that the DVD footage fell within the definition of prosecution evidence as set out in paragraph 1 (2) of Schedule 2 of the Order. 
8	In support of these grounds it is submitted that paragraph 15 does not provide some form of general exception whereby the time spent considering electronic material can be claimed by way of an additional fee.  It expressly requires that the material in respect of which the special preparation fee is claimed meets the definition of “prosecution evidence” set out in paragraph 1(2).  That definition includes a list of the documents (including pictures) which are to be regarded as “pages of prosecution evidence”. Material served by the prosecution will not constitute “prosecution evidence” for the purposes of paragraph 15 unless it can properly be considered to comprise pages of prosecution evidence pursuant to paragraph 1(2).  DVD footage it is submitted cannot properly be regarded as pages of evidence and it is clear from the words used in paragraph 1(2) that the definition is restricted to documents and does not extend to material which is incapable of or not intended for conversion  to documentary form.  The Order contains an express definition section and had there been an intention to extend the ordinary meaning of the words “pages of evidence” and “documents” to include DVD or video footage then it is submitted there would have been specific provision to that affect. The effect of the decision it is submitted is to interpret paragraph 15 and paragraph 1(2) as establishing a discretionary uplift provision in respect of viewing DVD or video  footage in circumstances where such uplift had been expressly considered and rejected when the scheme was devised. The intention it is submitted of the legislation was to create a scheme of graduated fees in which time spent reviewing tape footage served by the prosecution was to be regarded as part and parcel of the ordinary conduct of the case as reflected in the basic / initial fee. On the basis of the costs judge’s interpretation it is submitted that contrary to the scheme of the legislation it will be open to litigators to make additional discretionary claims for payment in respect of time spent watching DVD footage served by the prosecution. As to the element of discretion available to the appropriate officer on any decision on paragraph 15 it is submitted that there is a complete failure on the part of the costs judge to identify the grounds on which he considered that it would be reasonable to make an additional payment pursuant to the paragraph.  In any event, having regard to the wording of the Order it is submitted that his decision was plainly not reasonable.  Although the costs judge clearly had regard to the definition, he did not explain the basis on which DVD footage came within the definition and the finding that the footage was central to the case does not assist with the issue of whether the material comes within the definition in the Order. 
9	In my judgment the appeal must be allowed and the special preparation fee of £25 – 44  awarded by the costs judge must be set aside.  My reasons are as follows:
(a)	the wording of Paragraph 15 incorporating the definition in paragraph 1 (2) does not and cannot include DVD footage of the relevant section of road in this case. Indeed the wording clearly excludes such material.
(b)	the costs judge’s expressed reason for his conclusion , namely that the DVD was “central to the charge against the Defendant” and as such important for the solicitor to study,  did not explain the basis on which he concluded that the DVD was within the definition, and was in itself no reason for such inclusion. 
(c)	his decision although expressed to be “on the facts of this case” is contrary to the clear wording of the Order.
(d)	although it is clear from the background material put before me by the appellant that express consideration was given to electronic material in the consultation process which preceded the Order  and that  the intention was to exclude from Paragraph 15 electronic  material of this kind, I have not found it necessary in considering the  construction of the Order to seek assistance from that background material because the meaning  is clear. However, it is the position that the expressed intention is reflected in and entirely consistent with the wording and meaning of the Order.  

(e)	The clear effect of paragraph 1(2) is to  exclude from the calculation of prosecution pages of evidence any DVD, CD Rom, audio or video  tape or other electronically served material.  The definition excludes or, to use the wording of the Order, “does not include  any document provided on CD –ROM or by other means of electronic communication.”  There is a limited saving for “any document” so served in Paragraph 15 ; but any material served electronically which does not come within the definition of “ any document provided on CD-ROM or by other means of electronic communication” for example a DVD of moving footage is outwith the definition in paragraph 1(2) and outwith Paragraph 15. The result is that such material is not part of the fee calculation at all save as part of the basic/initial fee. That  result also  reflects the intention of the authors of the Order.   
(f)	Paragraph 15 also excludes any special preparation fee being awarded in respect of such material unless the material is within the definition in paragraph 1(2). If (and only if) such material is served in electronic form only, and it consists of  “any document”  can the additional material  so served qualify for a  special preparation fee in excess of the fee payable under Part 2 if the appropriate officer considers it reasonable to make such payment. The words “any document” in my judgment in context mean a still image, rather than moving footage (whether in the form of a DVD , CD-ROM or video or audio tape or some other electronic form)  not intended for conversion  to still images or which can not be so converted .  
(g)	I am fortified in my conclusion as to the meaning of paragraph 1(2) by the decision of Walker J in Goodman and Farr v Secretary of State for Constitutional Affairs (2007) 3 Costs LR 366   He concluded that the words “pages of prosecution evidence” did not encompass the DVDs and inlays in that case, which constituted real evidence and had not been copied, photographed or converted in to the form of  electronic documents as distinct from a hard document.  They did not constitute such pages. He said this at paragraph 45  “The schedule has chosen to work by reference to pages of prosecution evidence . That connotes to my mind something which is on a page.” He left open the question of whether a page might take the form of an electronic document.  The definition in the Order at that time did not contain the words subsequently added referring to documents provided on CD-ROM or otherwise electronically.  The additional words considered together with Paragraph 15 resolve the question which Walker J left open to the extent explained in this judgment.  

10.    For all these reasons I conclude that the decision to award a special preparation fee of £25-44 was contrary to the Order and wrong and the appeal against that element of the decision  is accordingly allowed. There will be no order for costs, the parties having come to an agreement . Finally, I acknowledge with thanks the assistance of my two assessors, Master  Gordon – Saker and Mr Simon Browne.