High Court guidance on PPE claims
The High Court has provided extensive guidance on calculating the number of pages of prosecution evidence (PPE) in graduated fee cases, after upholding a costs judge’s ruling in favour of the Defendant’s solicitors, upon Appeal by the Lord Chancellor.
However, the simple fact remains that any query, whatsoever, as to what material (or otherwise) should be counted as PPE, should of course be resolved at Trial.
This case merely highlights the problems that arise when one leaves the issue of PPE to assessment…
In the case of The Secretary of State for Justice the Lord Chancellor v SVS Solicitors  EWHC 1045 (QB) the Defendant was acquitted of a criminal charge.
By way of background, in 2015, SVS Solicitors (“SVS”), represented Ms D in criminal proceedings. SVS, and counsel instructed by them, acted under the terms of a representation order granted to Ms D by the Legal Aid Authority (“LAA”) on 28th September 2015. The case fell within the graduated fee scheme. Ms D was one of four defendants sent for trial in the Crown Court at Blackfriars on a charge of becoming concerned in a money laundering arrangement. The prosecution alleged that all four were part of a criminal group led by the first defendant, who was said to have arranged to pass a rucksack containing nearly £100,000 in cash to the fourth defendant, a professional money launderer. The principal allegation against Ms D was that she had driven the second defendant, and the rucksack containing the cash, to a meeting place at which all four were arrested. At the conclusion of the trial, Ms D was acquitted. Her co-accused were convicted.
SVS thereafter submitted their claim for fees to the LAA. In doing so, they included 1,571 pages of electronic material in their total count of the pages of prosecution evidence. On 19th July 2016 an LAA Determining Officer refused that part of the graduated fee claim, concluding that the 1,571 pages of electronic material were unused material and therefore did not count as PPE.
SVS Appealed. On appeal, which was heard on 28th November 2016, Costs Judge Simons ruled that the electronic material should properly be included when counting the PPE.
He decided that the content of the material was central to the case. “It would, in my judgment, be an unjust interpretation of the regulations to conclude that material that had been served without a notice of additional evidence must automatically be regarded as unused material and therefore excluded from the PPE count.
“In my judgment, the material… forms part of the served prosecution documents. I am satisfied that the contents of this electronically served material is such that, taking into account the nature and content of the document and all the relevant circumstances, it is appropriate that it should be included in the PPE.”
The Lord Chancellor appealed. The matter was heard on 21st March 2017 where Mr Justice Holroyde, sitting with Master Rowley as an assessor, admitted fresh evidence from the LAA which had not been before the costs judge – despite criticising the LAA for leaving it so late –who stated that the number of PPE in dispute was actually 1,262, as the other pages were duplicates of ones that had already been served.
It was argued that the excluded material was not relied on by the prosecution and was therefore not exhibited: and further, it was only ever disclosed as unused material, and as such, could not form part of the PPE for graduated fee purposes.
SVS submitted that the totality of the downloads were central to the case and that the excluded parts were initially viewed by the prosecution, the costs judge was right to conclude that they formed part of the served prosecution documents and so were correctly included as PPE.
Holroyde J highlighted the importance of the defence agreeing a schedule or some proposed agreed facts to the proper progression of trials.
“In the present case, as I have indicated, the prosecution exhibited the complete downloads of data relating to seven of the ten seized phones: it seems unlikely that they ‘relied on’ every piece of those data… The key point, as it seems to me, is that if the prosecution do wish to rely on a sub-set of the data obtained from a particular source, it will often be necessary for all of the data from that source to be exhibited so that the parts on which the prosecution rely can fairly be seen in their proper context.”
He further stated that decisions as to the service of evidence and exhibits, and therefore as to the inclusion of material in the PPE, would be case-specific.
He then set out at length the key principles for such cases, with the starting point that only material formally served as part of the evidence and exhibits of the case could be counted as PPE. Furthermore: “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.”
Where the prosecution sought to rely on only part of the data recovered from a particular source, and therefore serve an exhibit which contained only some of the data, “issues may arise as to whether all of the data should be exhibited”; resolution of these would depend on the circumstances of the case. If the parties could not agree this, the trial judge should be asked.
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, then it cannot be included in the number of PPE.
In his judgment, Holroyde J stated but for the concession made by SVS as to their error in relation to 309 pages, this appeal would fail. In the light of that concession, the appeal succeeds only to this limited extent: that the decision of Costs Judge Simons that 1,571 pages of electronic material should be included in the PPE count be varied to refer instead to 1,262 pages.
Holroyde J concluded by sounding two warnings about risks which are illustrated by the facts of this case. First, I would underline the need for all parties to be clear as to the status accorded to particular material: a litigator or advocate who wishes to contend that particular material should be counted as PPE should if at all possible resolve that issue at trial, and ensure that it is recorded in the appropriate notice, rather than leaving the point to be considered at a later stage by the Determining Officer or Costs Judge. Secondly, in a case in which the Lord Chancellor has not made any representations before the Costs Judge, but wishes to exercise her right of appeal to the High Court, any “fresh evidence” should be adduced as soon as possible: failure to do so may cause prejudice to the respondent (who may be given insufficient time to gather evidence in response) and may therefore lead either to the court refusing to admit the evidence or to a sanction in costs.
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