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
"(e) make provision for the remuneration
and payment of the expenses of legal representatives and for the
courts, persons or bodies by whom, and the manner in which, any
determinations which may be required for those purposes are to
be made, reviewed or appealed;"
Section 34(9) and (10) of the Act provide as
"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
(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;
(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
(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)  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:
"XII ORDERED, that the Clerk of Parliaments
shall appoint such person as he may think fit as Taxing Officer,
and in all cases in which this House shall make any order for
payment of costs by any party or parties in any cause, the amount
thereof to be certified by the Clerk of the Parliaments. The Taxing
Officer shall tax the Bill of Costs so ordered to be paid, and
ascertain the amount thereof, and report the same to the Clerk
of the Parliaments or Clerk Assistant; . . . and the Clerk of
the Parliaments or Clerk Assistant may give a certificate
of such costs, expressing the amount so reported to him as aforesaid
. . . and the amount in money certified by him in such certificate
shall be the sum to be demanded and paid under or by virtue of
such orders aforesaid for payment of costs." (emphasis added).
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.