Select Committee on Appeal First Report





  1. This report concerns the taxation of costs of counsel in appeals to the House of Lords in criminal matters which are legally aided. The Clerk of the Parliaments has referred certain general questions to the Committee for its guidance, but his reference was prompted by the following specific cases as to which it is first necessary to set out the relevant details.

The criminal appeals

  2. Reg v Powell and Daniels was heard together with R v English. Mr Peter Feinberg QC and Mr B Squirrell represented the appellants Powell and Daniels; Mr Christopher Sallon QC and Mr J Knowles represented the appellant English; Mr A Scrivener QC and Mr W Boyce represented the Crown. The Appellate Committee sat on Monday, Tuesday and Wednesday 17, 18 and 19 February 1997. Judgment was delivered on 17 July 1997. The appeals in Powell and Daniels were dismissed but the appeal in English was allowed. The decisions are reported at [1997] 3 WLR 959.

  3. The consolidated appeals in R v Mills and Poole were heard together with R v Brown. Mr Michael Mansfield QC, Miss Vera Baird and Mr G Ross represented the appellants Mills and Poole; Mr P Chand QC and Mr N Hillier represented the Crown in that case. Mr Richard Henriques QC and Mr I McMeekin represented the appellant Brown and Mr M Shorrock QC and Mr N Conrad represented the Crown in that case. The appeals were heard on the 8 and 9 April and on 10 April until 12.40 p.m. Judgment was delivered on 24 July 1997 when the appeals were dismissed. The decisions are reported at [1997] 3 WLR 447 and 458.

  4. All the appellants in the appeals were in receipt of Criminal Legal Aid Certificates granted by the Court of Appeal (Criminal Division). Each certificate provided for representation by leading and junior counsel.

The Taxations

  5. Taxation of the costs of the legally aided defendants in R v Mills and Poole took place on 24 February 1998.

    Miss Baird's fees were charged at £22,537.50 and allowed at £7,850.00.

    Mr Ross's fees were charged at £17,287.50 and allowed at £11,412.50.

  Taxation in R v English took place on 25 February 1998.

    Mr Sallon's fees were charged at £34,600.00 and were allowed at £21,600.00.

    Mr Knowles fees were charged at £17,592.00 and allowed at £13,592.00.

  Taxation in R v Powell and Daniels took place on 26 February 1998.

    Mr Feinberg's fees were charged at £37,000.00 and allowed at £16,000.00

    Mr Squirrel's fees were charged at £35,943.81 and allowed at £15,823.42

  The Lord Chancellor was not represented at any of these taxations. There has been no appeal against any of them by counsel.

  6. Taxation in R v Brown has not yet taken place. For various reasons, the bill of costs was not lodged until 1 June 1998. Counsel submitted their fees on 27 January 1998 with a request that they should be taxed independently of the solicitors' bill. Mr Henriques' fees were charged at £28,500.00, and Mr McMeekin's at £18,750.00.

  The Annex hereto contains a schedule setting out the fees charged by counsel for the defendants in the Crown Court, before the Court of Appeal and before this House; the costs allowed on taxation at each stage; and the fees charged by prosecuting counsel at each stage.

Clerk of the Parliaments' reference

  7. On Tuesday 31 March 1998 the Taxing Officer reported the taxations and the situation with regard to the bill of costs of R v Brown to the Clerk of the Parliaments in accordance with Standing Order XII. The Clerk of the Parliaments considered that the size of the fees involved in each of these appeals raised certain matters of principle which ought to be considered by the Lords of Appeal. Accordingly, he referred these matters to the Appeal Committee. His action was recorded in the Minutes of the House of Lords on Monday 6 April 1998. Following the reference, the Clerk of the Parliaments invited the Appeal Committee to consider the following questions:

    (2)  If the measure of such fees is, or involves an assessment of, what is fair and reasonable remuneration for the work done, is such an amount to be fixed by reference to the fee which a comparably qualified advocate would receive in a non-publicly funded case? Or by reference to the rate of remuneration which would be sufficient to produce a reasonable annual income? Or by reference to the rate of remuneration which would be paid out of public funds to those who are not lawyers but have comparable skills?

    (3)  Whether, at the taxation of such fees, the Lord Chancellor's Department (as the body liable for the disbursement of such fees) can, and/or should, be represented before the taxing officer?

    (4)  In the light of the answers to these questions, whether the fees charged by counsel in these appeals were proper and if not at what figure each should be taxed?


  8. The Committee invited the Bar Council, the Law Society, the Lord Chancellor's Department and the individual barristers concerned in the criminal appeals to make both oral and written submissions. Those invited were represented as follows:

    Mr Lawrence Collins QC and Miss Anna Coles appeared for the Law Society.

    Mr Nigel Pleming QC and Mr Nicolas Hilliard appeared for the Law Chancellor's Department.

    Mr James Munby QC appeared for the individual counsel.

  Oral submissions were heard on 17 and 18 June 1998. We are very grateful for the help we received from all counsel.

The statutory structure

  9. Taxation is the process whereby a person chargeable with a bill for legal costs is able to have the proper amount of such costs fixed by the court. In the ordinary case before legal aid was introduced, the person claiming the costs lodged an itemised bill with the taxing officer: the person liable to pay the costs brought in objections to the items or amounts claimed. When legal aid was introduced the amount of costs recoverable from the legal aid fund or other public funds was directed to be fixed by taxation. In the present case, we are concerned with the taxation of costs payable to counsel under the Legal Aid Act 1988 in criminal cases.

  10. Section 25 of the Act provides for payment out of public funds of the costs of legal representation. Section 34(1)(e) of the Act gives the Lord Chancellor power to make regulations which:

  Section 34(9) and (10) of the Act provide as follows:

    "The Lord Chancellor, in making regulations for the purposes mentioned in sub-section (2)(e) above as respects any description of legal aid work, shall have regard, among the matters which are relevant, to -

  (a)  the time and skill which it requires;

  (b)  the general level of fee income arising from it;

  (c)  the general level of expenses of legal representatives which is attributable to it;

  (d)  the number and general level of competence of legal representatives undertaking it;

  (e)  the effect of the regulations on the handling of the work;

  (f)  the cost to public funds of any provisions made by the regulations.

    (10)  Before making regulations for the purposes mentioned in sub-section (2)(e) above, the Lord Chancellor shall consult the General Council of Bar and the Law Society."

  We draw particular attention to sub-section 9(b) which requires the Lord Chancellor to have regard to "the general level of fee income" arising from the remuneration for which he is making provision in respect of legal aid work.

  11. The Lord Chancellor has made regulations under the powers conferred by the Act, the most important of these for present purposes being the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989. Those regulations do not directly apply to proceedings in the House of Lords, save that the costs of proceedings in the House of Lords payable under section 25 of the Act are to be determined by such officer as may be prescribed by order of the House of Lords: see Regulation 18. The prescribed officer is the Principal Clerk of the Judicial Office. Although the Regulations do not directly apply to costs in the House of Lords, all those represented before the Committee were of the view, and we agree, that the principles applicable in other courts under the regulations are equally applicable to criminal legal aid taxation in the House of Lords.

  12. Regulation 3 defines "the appropriate authority" as meaning the Registrar in the case of proceedings in the Court of Appeal, an officer appointed by the Lord Chancellor in the case of proceedings in the Crown Court and the Legal Aid Board in the case of proceedings in the Magistrate Court. Regulation 3(2) authorises the appropriate authority to appoint determining officers to act on its behalf. Regulation 4 then provides:

    "4(1) Costs in respect of work done under a Legal Aid Order shall be determined by the appropriate authority in accordance with these Regulations.

    (2) In determining costs, the appropriate authority shall, subject to and in accordance with these Regulations -

  (a)  Take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved, and

  (b)  Allow a reasonable amount in respect of all work actually and reasonably done."

  Under Regulation 9 counsel's fees can fall into one of three categories. About 80 per cent of all cases in the Crown Court have, since 1 January 1997, fallen into the category of graduated fees which were introduced on that date. In this category, the amount of counsel's fees is fixed according to formulae set out in Schedule 3. The second category of fees are those which have a fixed maximum amount. Finally there are fees which are fixed entirely by taxation, being fees in very long trials and appeals to the Court of Appeal. Fees in this last category are to be allowed by the appropriate authority "at such amounts as appear to it to be reasonable remuneration for the relevant work": see Regulation 9(5) proviso (b) and (6).

  13. In July 1995 the Chief Master of the Supreme Court Tax Office issued Taxing Officers' Notes for Guidance ("TONG"). They are designed to assist determining officers in the exercise of their discretion. Paragraph 1.11 of TONG provides that the following are relevant factors to be taken into account -

    "(a) the importance of the case, including its importance to each defendant in terms of its consequences to his livelihood, standing or reputation even where his liberty may not be at stake;

    (b) the complexity of the matter;

    (c) the skill, labour, specialised knowledge and responsibility involved;

    (d) the number of documents prepared or perused with due regard to difficulty or length;

    (e) the time expended;

    (f) all other relevant circumstances."

  14. The Regulations make no provision for the representation of the Lord Chancellor on taxations in lower courts. The view is apparently taken that it is inappropriate for the Lord Chancellor to be represented before an officer of his own Department. If, and only if, counsel choose to appeal the determining officer's decision to the Taxing Master do the rules provide for the Lord Chancellor to have the right to be represented; see Regulation 15(6) and (7). The Lord Chancellor can himself appeal from the Taxing Master to the High Court; Regulation 16(5).

  15. That is the legal structure within which taxation of counsel's fees in criminal cases in the lower courts is conducted. In the House of Lords the taxation is conducted by the Principal Clerk with the assistance of a Taxing Clerk. The express directions as to the principles which he is to apply are very limited. In the Green Book Direction 9 provides inter alia as follows:

    "(b) The length of the hearing, the complexity of the issues as indicated by the speeches delivered in the House, and the general level of fees in analogous appeals will be taken into account.

    (d) The hours spent by counsel in preparation are not generally of assistance to the Taxing Officer when assessing the quantum of counsel's fees at any stage of the proceedings."

  Direction 10 provides for an appeal against the Taxing Officer's decision, first by way of review to the Clerk of the Parliaments and thereafter by way of petition to the House of Lords. It provides expressly that "an appeal lies on principle but not on quantum".

  16. The Principal Clerk has from time to time invited the Lord Chancellor's Department, as the Department which is liable to pay counsel's fees when taxed, to be represented at taxations. However, the Department has always declined to take part in them. Similarly, in the only reported appeals against the Taxing Officer's decision on taxation the Lord Chancellor's Department was not represented: see A T and T Istel Limited v Tully (No. 2) [1994] 1 WLR 279.

The subject matter of this report

  17. As we have said, the Clerk of the Parliaments has referred to this Committee for guidance certain questions as to the basis on which taxations of criminal fees should be conducted in the House of Lords. It is important to make it clear what this report does not deal with.

  18. It became clear during the hearing that there could be no question of this Committee itself fixing the amount of the fees payable to counsel. The fees in R v Powell and Daniels, R v English and R v Mills and Poole have all been taxed by the Principal Clerk and counsel have not appealed those taxations. We are satisfied that in those circumstances, the time for appeal having expired, the taxed amounts are now final. It was suggested in argument that the taxed amounts could be reopened by the Committee because of the terms of Standing Order XII of the Standing Orders of the House of Lords regulating judicial business which provides:

  19. It was submitted that, because the Standing Order only provides that the Clerk of the Parliaments "may" give a certificate, he had a discretion whether or not to give one and, therefore, the matter was not closed until he had given his certificate. In our view that is not the right construction. It is clear that any certificate the Clerk of the Parliaments can give has to state the amount reported to him by the Taxing Officer. Therefore, the withholding of the certificate cannot authorise any variation of the taxed amount. In our judgment the word "may" was used in order to cover the case where the paying party was prepared to pay the taxed costs without the formality of a certificate, in which case there would be no need for the issue of a certificate.

  20. It follows that neither this Committee nor the Clerk of the Parliaments can now alter the amounts due to counsel under the taxations which have taken place. As to R v Brown taxation has not yet taken place. It will be a matter for the Taxing Officer to consider in accordance with the principles set out in this report.

  21. The purpose then of this report is to give general guidance to the Taxing Officer and the Clerk of the Parliaments. Such guidance relates to the correct approach to taxation of counsel's fees in criminal appeals to the House of Lords. But it may indirectly affect the approach to taxation of such costs in the lower courts, since it is common ground that the principles applicable in this House are the same as in the lower courts.

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