Guidance

Key Cost Judge Decisions

A quick way to locate the main cost judge decisions we refer to when making assessment decisions on LGFS and AGFS claims

• From: Legal Aid Agency
• Published: 20 February 2019

Summary of Key Cost Judge Decisions

This page will be updated with the key cost judge decisions that we rely on when making assessment decisions and/or providing written reasons. This list is not meant to be a comprehensive guide to all cost judge decisions made, but rather a quick reference tool for the most commonly used decisions.

PPE Cost Judge Decisions

Please also see Appendix D in the Crown Court Fee Guidance here:

Crown Court Fee Guidance

Case	Synopsis
R v Jalibaghodelezhi [2014] 4 Costs LR 781	Material should be paid as PPE where it is pivotal to the case and requires same degree of consideration as paper evidence. This case has been sited with approval in subsequent High Court judgments.
R v Napper [2014] 5 Costs LR 947	In considering whether to allow electronic material as PPE the Determining Officer must consider whether the evidence is pivotal, whether the evidence underpins the understanding or admissibility of any other piece of evidence, and whether the volume of evidence disrupts the fair and predicted economic balance of the remuneration paid for a case.
Lord Chancellor v Edward Hayes [2017] EWHC 138 (QB)	The defence should not be penalised for lack of formal service by prosecution. Communication data underpinning that extracted by the prosecution will need to be considered to give a proper understanding of the selected material
Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB)	Unused material may not be paid as PPE. The defence should not be penalised for lack of formal service by the prosecution. Often extracted data can only be fairly considered in light of the surrounding data. Disputes about the status of the material should be resolved by the parties prior to billing, seeking a ruling from the trial judge where necessary. Where the status of the evidence has not been resolved the determining officer must consider all the facts of the case and make a determination. Any view by the prosecution will be an important consideration and in most cases determinative. Where there is any dispute the determining officer must consider whether the material in question was of central importance to the trial. The fact that material was helpful to the defence would not be sufficient for the determining officer to conclude the material was used. Used material may be paid either as PPE or special prep. A qualitative assessment by the Determining Officer, applying the principles outlined in the Crown Court Fee Guidance is an important and valuable control mechanism which ensures that public funds are not expended inappropriately. Duplicated material should not be included in the PPE.
R v MA [2018] 2 Costs LR 419	This was judgment by the Recorder of Leeds in which he criticised defence practices of seeking to have discs of telephone evidence included within the PPE when the material was easily searchable and often irrelevant. The judgment affirmed that it was perfectly proper for the CPS to only serve the portion of the material that they relied upon and it was not reasonable for the defence to scrutinise the entire contents of the disc without first seeking the defendant’s instructions.
R v Salman Ahmed (SCCO Ref 214/18)	Following the guidance in SVS and the Crown Court Fee Guidance, downloaded material is not to be regarded as one integral whole, as a witness statement would be. To use the analogy of Holroyde J, the downloaded material, which was itself a copy of the material held electronically on the Defendant’s and second Complainant’s telephones, was more in the nature of the contents of a filing cabinet capable, in principle, of subdivision so that some material may count towards PPE and some may not. It does not follow that simply because the material was served that it was relevant and appropriately dealt with as part of the PPE: that is apparent from the rules themselves and confirmed by the guidance. Whether it is appropriate to subdivide material and indeed how any such subdivision should occur is, of course, a matter to be determined on the facts and having regard to the discretion set out in the relevant provisions and the guidance.
R v Zameer Ahmed (SCCO Ref 145/18)	The method in which the information is manipulated and the method by which the litigator is to be remunerated do not have to be based on the same format of document. Fundamentally, the extent of the data is the same in whichever format it is presented. It is incontrovertible that the nearest equivalent to a paper document is the PDF format and it should be that one which is used for the purposes of PPE.
R v Ali (SCCO Ref 108/16)	That the phone is an exhibit in this case does not mean that data extracted and burned on a disc is evidence in the case. Where the Judge gives a conclusive ruling that the material was unused it is not appropriate for the LAA or the Cost Judge on appeal to go behind that decision. Any ruling by the trial judge should be bought to the LAA’s attention when submitting a claim.
R v Ali & Ors (SCCO Ref: 117/17,153/17,144/17,149/17,10/18,168/17,152/17)	It is not wrong in principle to treat as unused material any form of data which has been reviewed by the prosecution for the purposes of extracting served evidence. The alternative approach would be to apply Holroyde J’s “filing cabinet” analogy, extend the PPE count not only to the entire content of the filing cabinet, but to the entire content of the office in which it stands. That is not a sustainable approach. Holroyde J made it clear that it may be entirely appropriate for the prosecution to sever, from a body of electronic data, that which is truly relevant; to exhibit that evidence; and to treat the remainder as unused.
R v Usman Ali (SCCO Ref 85/16)	The fact that material is used does not make it PPE. The determining officer must carry out a qualitative assessment. The defence must supply sufficient information to allow that assessment to be carried out.
R v Andras (SCCO Ref 172/19)	It is self-evidently wrong (as well as contrary to established authority, in particular Lord Chancellor v SVS) to argue that all of the electronic material served on disc must be included within the PPE count (even after eliminating elements of duplication). That would be to eliminate the discretion which the 2013 Regulations confer upon a determining officer.It is equally wrong to say that the mere possibility that a significant piece or pieces of evidence might have emerged from a larger body of evidence of no real evidential significance, justifies the inclusion of the body of irrelevant evidence within the PPE count.
R v Daugintis (SCCO Ref 14/17)	There is a distinction between material in PDF which represents material in a printed format and requires a similar degree of consideration as paper material and material which does not provide a representative or predictable page count and is more easily manipulated by the use of various search tools and filters. Inclusion of the excel material in the page count would inflate the graduated fee and not properly reflect the amount of work done. Payment for excel data is better remunerated by special preparation which reflects the time actually spent considering the material.
R v Daugintis (SCCO Ref 14/17)	In determining the relevant format to calculate the PPE the question however is not whether PDF or Excel is the best format in which to work. The question is whether PDF or Excel gives the most realistic and representative page count. In that context, one must keep in mind that the calculation of fees by reference to a PPE count dates from a time when all evidence was served on paper and that the 2013 Regulations, like their predecessors, are designed to make similar provision for documents served electronically. The PDF format is designed to mimic presentation on paper. Excel is not, and can offer different page counts depending upon the way in which the information in that format is managed, used or presented. 50 pages of legible data on paper will, if reproduced in PDF format, remain 50 pages of legible data with much the same appearance. In Excel format, depending on how the same data is managed or presented, the page count could run into hundreds.
R v Khadir (SCCO Ref: 85/18)	There is nothing inherently inappropriate in the notion that representatives for different defendants on the same indictments might be paid different amounts. What is due to the representative of a particular defendant will be dependent at least to some extent on the work that has to be done in respect of that defendant. It does not follow that every piece of evidence is going to have the same significance for every defendant.It is not reasonable for a defence team to treat all served evidence as equally relevant or potentially relevant from the outset. At least some of it is likely to be self-evidently of no or limited relevance at the outset. PDF is the correct format for determining page count.
R v Mucktar Khan (SCCO Ref 2/18)	Subdivision of telephone download data is permissible and necessary to the proper application of the regulations. The fact data is served is not sufficient to establish it relevant and should be included within the PPE. There might be included in the served electronic material swathes of photographs of celebrities or, in some cases, pre-loaded images of national flags or other such material which is wholly irrelevant but yet served as part of the electronic material. Whilst it is conceivable that some such material may in the particular circumstances of a case be of potential relevance and need to be considered, absent any such potential relevance it is material that the person charged with considering the evidence, should be able to check with considerable speed. The refusal to allow such material as PPE does not necessarily mean that the representative is not paid for such work but the appropriate way of compensating the representative for such work may be by way of a special preparation fee. The alternative approach in allowing all such material to count as PPE, no matter its obvious irrelevance or how peripheral its potential relevance, would not achieve the underlying intention of the provisions as interpreted in Jalibaghodelezhi. Moreover, such an approach would distort the operation of the fee scheme.
R v Lena (SCCO Ref 89/18)	It is not appropriate to treat a single disc or telephone download as a single exhibit. The discretion of the Determining officer extends to determining whether all or part of body of served electronic evidence should be included within the PPE. If a determining officer were to make a binary choice between including within the PPE count all of the data on a disc; however peripheral or irrelevant, or none of it at all, then the obvious choice would be to allow none of it at all, as the only way of avoiding overpayment.
R v T Mahmood and Z Mahmood (SCCO Ref 149/16;155/16 and 185/16)	Telephone data would not have existed in paper form prior to April 2012. It is appropriate to subdivide a report into its individual sections and allow only the relevant tabs or sections. In particular digital imprints of audio, video and images is of insufficient importance to be included in the PPE they are better categorised as ‘social material’ found on most people’s smart phones. Similarly, Cookies, installed applications and web bookmarks comprise material invariably downloaded on a modern smart phone which has no bearing on the prosecution case
R v Mannix (SC-2019-CRI-000066 & 230/19)	It is an appropriate use of discretion to exclude duplicate data in the form of the timeline section from the report from the PPE where the substantive sections (e.g. calls, messages etc.) have been included within the PPE. It is not a question, for the defence team, of considering edited material against the data from which that edited material has been extracted. It is merely a question of the same data being organised by extraction software in two different ways. It is not unfair to refuse to include the same data twice within the PPE count.
R v Mooney (SCCO Ref 99/18)	The determining officer should caution against the use of hindsight when determining PPE. Where a given body of served electronic data, such as messages, merits inclusion within the PPE count it is not appropriate to undertake a page by page analysis for the purposes of identifying the relevance of each individual message.
R v Motaung (SCCO Ref 179/15)	It does not follow that because the schedules prepared by Prosecution and included in the PPE are derived from a larger body of telecommunications data, that the entire body of underlying telecommunications data must also qualify as PPE. This argument blurs the distinction between Pages of Prosecution Evidence, as served upon a defendant, served upon the court and relied upon by the Prosecution, and the wider body of evidence from which it is derived, which may properly be identified as unused material upon which the Prosecution does not rely but which must be disclosed to a defendant.A single disc may contain both used and unused material.
R v Muiyoro (SCCO Ref 70/18)	Where telephone data is provided in PDF report a consideration of the raw data as exported to various subfolders on the disc adds nothing to the preparation of the case and the duplicate material should not be included within the PPE.
R v Robertson (SCCO Ref: 22/17)	It is appropriate to allow only relevant sections of reports. Broadly there is a distinction between communications data which should be included in the PPE and social or technical data found on modern smartphones which is peripheral to the case. In particular personal images do not form part of the PPE.
R v Purcell (SCCO Ref 132/19)	The fact that it is necessary to consider material and in particular images does not make it PPE. Where the material is considered for a narrow purpose and where the body of data quite plainly contains large amounts of self-evidently irrelevant material special preparation is the more appropriate method of remuneration. Having regard to the time it would be taken to consider the largely irrelevant material and the nature of that exercise material appropriately compensated by a special preparation fee. If material of this sort were to count as PPE it would very substantially distort the operation of the fee scheme.
R v Sana (SCCO Ref: 248/16)	A line must be drawn between what can be considered PPE and what is special prep. This is a fact specific decision. The starting point of the regulations is that electronic material is specifically excluded from the PPE unless the determining officer is able to conclude it is appropriate to include it within the PPE.
R v Sereika (2018) SCCO Ref 168/13	In circumstances where a disc contains a mixture of relevant and irrelevant material there is no reason why a Determining Officer (or costs judge on appeal) should not take a broad approach and conclude that as only a proportion of the material may be of real relevance to the case, only a proportion should be included in the page count.
R v Sibanda (SCCO Ref: 277/14)	Where a defendant is charged with substantive offences telephone data relating to co-defendants is not sufficiently relevant to merit inclusion in the PPE
R v Hajinder Singh (SCCO Ref: 103/18)	It is not correct to regard the download report as an integral whole (in the same way as a witness statement would be). The download report contains a copy of the material held electronically on the Defendant’s telephone. Using the analogy of Holroyd, J in Lord Chancellor v SVS download material is more in the nature of the contents of a filing cabinet.
R v Sullivan (SCCO Ref 38/19)	There is a clear distinction between material directly relevant to the offences e.g. message data and that which is at best relevant to mitigation e.g. images which may give an indication of lifestyle. This (lack of a lavish lifestyle) is a point in mitigation, rather than a point of guilt or innocence. The fact that it is at best peripherally relevant to the offences and is really only helpful in terms of mitigation for the Defendant, is a factor that the DO and this court can take into account when considering the nature of the document and any other relevant circumstances, under para 1(5) of Schedule 1.
R v Tixe (SCCO Ref 39/19 and 94/19)	Simply because it was necessary to consider the material it does not follow that it should be regarded as used material. The normal expectation is that the defence solicitors will indeed consider unused material for anything that might assist their client.
R v Tunstall (SCCO Ref: 220/15)	The basic position under the scheme is that electronically served PPE is not included in the number of pages of prosecution evidence. Appellants must supply sufficient information to the determining officer to enable them to consider the nature of the doc and relevant circumstances
R v Yates (SCCO Ref: 66/17)	In certain cases, it is appropriate to draw a distinction between material directly attributable to the defendant which should be included in the PPE and material attributable to the co-defendant which is useful only as additional background.

Published 20 February 2019