R v Challenor

1. The Appellant represented Tyson Challenor (“the Defendant”) in the Crown Court at Liverpool. The Defendant was charged with several serious offences, and was acquitted on all counts after a trial. A Representation Order granted legal aid to the Defendant on 26 January 2024.

2. The Appellant firm of solicitors is entitled to payment in accordance with the provisions of the Criminal Legal Aid (Remuneration) Regulations 2013, as in effect at the date of the Representation Order. The Appellant is, for the purposes of the 2013 Regulations, a “litigator” (as defined at Regulation 2). Generally speaking that term refers to a defendant’s solicitor, as opposed an advocate exercising a right of audience in the Crown Court.

3. This appeal concerns a claim for travel expenses. The matter in issue is whether the conducting solicitor was entitled to claim the full cost of travel from his home address to the Crown Court in Liverpool.

4. In R v Humfrey (SC-2020-CRI-000138, 30 November 2020) I explained my reasons for concluding that there was no procedural basis, under the 2013 Regulations, for an appeal to a Costs Judge in respect of litigators’ expenses. I shall reiterate here my reasons for coming to that conclusion.

5. Advocates’ fees are calculated by reference to Schedule 1 of the 2013 Regulations, and litigators’ fees by reference to Schedule 2. Claims for expenses by litigators, referred to as “disbursements”, are provided for separately, in Regulations 5(2) and 14 to17. Regulation 17 provides for the litigator to recover such disbursements claimed under regulation 5(2) as appear to the Determining Officer to have been reasonably incurred. The LAA publishes guidance on what is or is not likely to be recovered.

6. Regulations 28 and 29 contain the provisions of the 2013 Regulations for the redetermination of claims and, following redetermination, appeal to a Costs Judge. (There are additional appeal provisions at Regulation 31 but they relate to time limits, not to substantive claims).

7. The relevant provisions of regulation 28 are as follows: “(1) Where— (a) an advocate in proceedings in the Crown Court is dissatisfied with the decision not to allow any of the following fees, or with the number of hours allowed in the calculation of such a fee, namely— (i) a special preparation fee under paragraph 17 of Schedule 1; or (ii) a wasted preparation fee under paragraph 18 of Schedule 1; or (b) a trial advocate in proceedings in the Crown Court is dissatisfied with— (i) the decision not to allow an hourly fee in respect of attendance at conferences or views at the scene of the alleged offence under paragraph 19 of Schedule 1, or with the number of hours allowed in the calculation of such a fee; (ii) the calculation by the appropriate officer of the fee payable to the trial advocate in accordance with Schedule 1; or (iii) the decision of the appropriate officer under paragraph 3(3) of Schedule 1…” ( offence banding ) … or (c) a litigator is dissatisfied with— (i) the determination by the appropriate officer of the fee payable to the litigator in accordance with Schedule 2; or (ii) the decision of the appropriate officer under paragraph 3(3) of Schedule 2…” ( offence classification ) “… the advocate, trial advocate or litigator, as the case may be, may apply to the appropriate officer to redetermine those fees, to review that decision or to reclassify the offence, as appropriate… (7) The appropriate officer must, in the light of the objections made by the applicant or on behalf of the applicant— (a) redetermine the fees, whether by way of confirmation, or increase or decrease in the amount previously determined; (b) confirm— in the case of a redetermination requested by an advocate, the banding of the offence within band 17.1; or (ii) in the case of a redetermination requested by a litigator, the classification of the offence within Class H; or (c) re-band or reclassify the offence, as the case may be, and must notify the applicant of his decision. (8) Where the applicant so requests, the appropriate officer must give reasons in writing for the appropriate officer's decision.

8. The relevant provisions of regulation 29 are: “(1) Where the appropriate officer has given his reasons for his decision under regulation 28(8), a representative who is dissatisfied with that decision may appeal to a Costs Judge.”

9. Regulation 28 provides for the redetermination and written reasons process to be open to an advocate or litigator only in respect of specified categories of claim. By virtue of regulation 29(1), I can only entertain an appeal following the delivery of written reasons under regulation 28(8). It follows that I can only hear an appeal on the categories of claim to which regulation 28 actually applies. Those categories do not extend to claims for disbursements under regulations 5(2) and 17.

10. The Determining Officer’s jurisdiction, and mine, is a statutory jurisdiction under the 2013 Regulations themselves. We have no jurisdiction to go beyond them. As in R v Humfrey, the Appellant and the Determining Officer have gone through the motions of redetermination and written reasons, but that process has not, under the regulations, been available to the Appellant, and in consequence I cannot entertain an appeal.

11. For those reasons, this appeal be dismissed.