High Court Upholds Discretionary Approach to Electronic Evidence in Defence Solicitors' Remuneration Under Litigators' Graduated Fee Scheme

Citation: [2023] EWHC 3126 (SCCO)
Judgment on


In the case of R v Hussain [2023] EWHC 3126 (SCCO), the High Court addressed the complexities surrounding remuneration for defence solicitors under the Litigators’ Graduated Fee Scheme, particularly concerning the inclusion of Pages of Prosecution Evidence (PPE) from electronic sources. This case analysis will aim to dissect the judgment, highlighting the key legal principles and their application, and to understand the rationale behind the court’s decision.

Key Facts

The appellant, Shafi Solicitors, appealed a decision regarding the PPE count relating to their representation of Asad Hussain in a criminal case. The central issue was the inclusion of extensive electronic evidence, including mobile phone data crucial to the prosecution’s case. The PPE page count directly influences the remuneration the defence solicitors would receive. The Determining Officer allowed for a PPE count of 6835 pages, of which only 300 pages pertained to image data. The appellant argued that a larger portion of the electronic data was indispensable for the defense and warranted inclusion in the PPE count.

The court meticulously applied several legal principles to determine the appropriate inclusion of electronic evidence in the PPE:

  1. Importance of Evidence to the Case: The primary criterion, elucidated by Holroyde J in Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB), is to ascertain whether the evidence is central to the trial’s proceedings, rather than merely helpful or important to the defense.

  2. Totality of Data Consideration: Holroyde J also noted that sometimes it’s necessary to consider the totality of the data when only a part of electronic data is exhibited, which depends on whether the exhibited data can be fairly understood without the entire context.

  3. Discretion on Electronic Evidence: As specified in paragraph 1(5) of Schedule 2 to the 2013 Regulations, electronic evidence that never existed in paper form may be excluded from the PPE count based on discretion, considering the nature of the document and other circumstances.

  4. Sensible Approximation: Applying a logical estimation when assessing electronic material is valid, as explained in The Lord Chancellor v Lam & Meerbux Solicitors [2023] EWHC 1186 (KB), when Cotter J accepted the need for a ‘sensible approximation’ in such assessments.

  5. Extraction of Key Evidences from a Category: In the context of Lord Chancellor v Edward Hayes LLP & Anor [2017] EWHC 138 (QB), where a significant portion of the prosecution’s case relied on electronically served evidence, the entirety of the evidence within that category may be included in the PPE count.


The court concluded that the Determining Officer acted within an appropriate discretionary frame when allowing only 5% of the image data. Similar to R v Sereika, where not all images were considered relevant and thus were not completely included in the PPE count, in the case at hand, many images could be examined quickly due to their clear irrelevance. The court thus dismissed the appeal, finding the Determining Officer’s allowance reasonable.


R v Hussain’s ruling provides further clarification on the treatment of electronic evidence under the Litigators’ Graduated Fee Scheme. The case emphasizes the balance between the duty of defense solicitors to thoroughly examine evidence and the reasonable limits of remuneration. The judgment upholds the discretion accorded to Determining Officers in excluding electronically served evidence from the PPE count when deemed appropriate, taking into account the relevance and necessity of such evidence in the context of trial proceedings.

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