A firm has successfully defended its right to be paid for its claim to the Legal Aid Agency over thousands of pages of prosecution evidence after a High Court judge found in its favour.
Clarke Kiernan, which has offices in Tonbridge, Kent, represented Nathan Turner at Maidstone Crown Court where he faced two separate indictments. The first indictment against Turner, along with seven co-defendants, included one count of murder, one count of manslaughter and one of conspiracy to rob. The second indictment against him incorporated one count of possession of cannabis with intent to supply.
Though the murder indictment and drug indictment date from the same time, they were never joined, the judgment said. It added: ‘In fact the Crown seems, when appearing before the court, to have overlooked the drug indictment.’
It was not until the conclusion of the trial on the murder indictment that the ‘Crown realised’ Turner had never been arraigned on the drugs indictment. In the run up to the murder trial, the murder case and drug case ‘seem to have been treated by the Crown and by the court as if they were a single case’.
The firm submitted a claim for payment for the murder case based on 10,000 pages of prosecution evidence (PPE) which was accepted and paid. The firm’s claim for payment in the drugs case was also based upon a PPE count of 10,000. The determining officer accepted payment was due for the drug case as a separate case, but the PPE was zero.
Costs judge Leonard said the case was an ‘exceptional’ one ‘brought about (it would seem) by poor case management on the part of the Crown’.
He added: ‘Costs Judges have, over the years, had to reject many appeals based upon the contention that the 2013 [Criminal Legal Aid (Remuneration)] Regulations (and the regulations that preceded them) should be reinterpreted where they do not adequately reward work done.
‘Their answer has consistently been that the court does not have the power to rewrite the 2013 regulations, which must be applied mechanistically. It follows that in some circumstances litigators or advocates may be more generously rewarded for their work than in others. This case is no different.’
Finding the determining officer’s approach was ‘wrong in principle’, the judge said: ‘It cannot be right to determine the PPE count for the drug case at zero when witness statements and exhibits have, in that case, demonstrably been served on paper by the prosecution.
‘Whether those documents had already been included in the PPE count for the murder indictment is beside the point. The 2013 regulations do not permit paper evidence served in a given case to be excluded from the PPE count on the basis that it duplicates paper evidence served in another case.’
Allowing the appeal the judge found 7,185 pages were served. The appropriate additional payment will be made to the firm as well as £750, exclusive of VAT, for costs and £100 paid on appeal.
