SCCO Case Highlights COVID-19 Challenges in Late Legal Aid Claim Submissions

Citation: [2023] EWHC 2724 (SCCO)
Judgment on

Introduction

The case of R v Dylan Whiting before the Senior Courts Costs Office (SCCO) represents an interesting insight into the application of late submission penalties relating to legal aid claims under the Advocates’ Graduated Fee Scheme (AGFS). Specifically, it elucidates the interpretation and application of the Criminal Legal Aid (Remuneration) Regulations 2013 in the context of a post-pandemic landscape, dealing with the allowance for “good reason” and “exceptional circumstances” as grounds for the extension of time limits and reduction of penalties.

Key Facts

G T Stewart Solicitors Ltd (the Appellants) represented Mr. Dylan Whiting, whose appeal against a 26-week imprisonment sentence was dismissed. The solicitors submitted their AGFS claim 26 months post-conclusion of the said appeal, which led to a 20% reduction in fees by the Legal Aid Agency (the Respondent) due to lateness. The Appellants challenged this decision, arguing that the challenges faced due to the COVID-19 pandemic constituted both “good reason” and “exceptional circumstances” under the 2013 Regulations, justifying a lesser penalty for delay.

The legal principles in focus here revolve around the interpretation of Regulations 4 and 31 of the 2013 Regulations. Regulation 4 sets a three-month deadline for claim submissions post-conclusion of proceedings. Regulation 31 provides room for an extension of this time limit where there is a “good reason,” and in “exceptional circumstances,” it allows for the mitigation of penalties imposed for late submissions.

The SCCO also considered the Crown Court Guidance that suggests a ‘sliding scale’ appropriate for the severity of the delay. During the pandemic, the Respondent had adjusted the scale, implying no penalty for delays up to 6 months, a 5% penalty for delays between 6-12 months, and a standard 20%+ penalty for delays over 12 months.

Outcomes

Costs Judge Whalan found that the Appellants had demonstrated a “good reason” for the claim’s late submission due to difficulties stemming from the pandemic up until March 19, 2021. However, Judge Whalan disagreed with the conclusion that the “good reason” should end at this specific date. The judge considered that, realistically, the challenges the Appellants faced would have persisted beyond the easing of COVID-19 restrictions, particularly given the firm’s large-scale operations and consequent administrative burdens.

The judgment redirected the period of “good reason” to the end of 2021, leading to a revised period of delay that fell within the 9-12 months bracket. Consequently, in line with the Respondent’s policy, the Appellants were subject to a reduced late submission penalty of 5%.

Conclusion

The decision in R v Dylan Whiting offers a pragmatic approach to the application of late submission penalties in times of unprecedented difficulty, such as the COVID-19 pandemic. It showcases the judiciary’s willingness to consider the broader context and ongoing repercussions, rather than rigidly adhering to pre-established timelines.

The ruling provides legal professionals with an informative precedent on factoring in operational challenges when adhering to procedural deadlines, particularly within the scope of legal aid work. This case serves to affirm that the principle of fairness remains crucial in the application of the 2013 Regulations, with an emphasis on allowing reasonable opportunities to show cause for any delays incurred. The outcome herein both maintains the integrity of the regulatory framework designed to encourage timeliness and recognizes the realities of large-scale legal practice during times of widespread disruption.

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