Legal Interpretation of Consideration of Unused Material in R v Kyi-Reece Sylvester: Implications for Legal Remuneration

Citation: [2023] EWHC 3035 (SCCO)
Judgment on


The case of R v Kyi-Reece Sylvester is a pertinent example of how the interpretation of legal regulations can have significant implications for legal remuneration. The case was brought before the Senior Courts Costs Office to appeal a decision made by the Legal Aid Agency regarding the compensation for a barrister’s review of unused material under the Advocate’s Graduated Fee Scheme (AGFS). The appeal was heard by Costs Judge Whalan. This article presents a structured analysis of the key issues discussed in the case and elucidates the legal principles applied.

Key Facts

Counsel Mr. William Sneddon (“the Appellant”) represented Mr. Kyi-Reece Sylvester (“the Defendant”) in a serious criminal case involving charges of murder and robbery. In preparation for the trial, the Appellant reviewed a considerable amount of unused material amounting to 7036 pages. In his claim to the Legal Aid Agency (“the Respondent”), the Appellant billed for 40.25 hours of work, which exceeded the 3-hour fixed fee for considering such materials. However, the Respondent permitted only 14.5 hours of work. The Appellant appealed this decision.

The pivotal legal principles in this case center on the interpretation of the phrase “consideration of unused material” as per the Criminal Legal Aid (Remuneration) Regulations 2013 and its subsequent Amendment in 2020. Important stipulations that were at the heart of the dispute include, amongst others:

  • Regulation 17A(3) indicating that additional fees, beyond a basic consideration fee, may be payable when an advocate spends more than three hours on consideration of unused material.
  • Regulation 17A(5) only allowing payment of the additional fee when deemed reasonable by the appropriate officer.
  • Regulation 17A(7) stating that in determining reasonableness, the officer must consider the hours claimed in relation to the case as a whole, including the specific task of considering the unused material.

The crux of the appeal was the interpretation of the term “consideration” (does it include drafting chronologies, compiling witness lists, etc.) and what constitutes a reasonable amount of time to consider over 7000 pages of material.


Costs Judge Whalan preferred the Appellant’s interpretation of “consideration,” which included activities beyond merely reading the material, such as analyzing and actively engaging with it (e.g., “Updating witness list” and “Drafting chronology”). The Judge deemed the Appellant’s claim of 40.25 billable hours modest for the volume of material.

The term “consideration” was viewed distinct from “reading,” allowing for a broader and more involved level of engagement. Furthermore, the Judge rejected any standardized empirical allowance for reading material based on time-per-page metrics as inherently flawed, given the variability of content significance across pages.

Ultimately, the appeal was allowed, and the court directed that the Appellant’s claim be recognized for the full 40.25 hours, in addition to awarding the costs of £300 (+ VAT if payable) alongside the £100 paid at the inception of the appeal.


In R v Kyi-Reece Sylvester, the interpretation of regulations and their application to the remuneration of legal professionals lie at the heart of the discussion. The judgment affirms a broader understanding of the term “consideration” when dealing with unused material in legal trials. Notably, the decision emphasizes the importance of not restricting legal compensation to simple reading, but rather encompassing more in-depth engagement with the material at hand.

The analysis of this case reinforces the concept that legal remuneration should be commensurate with the workload and complexity inherent in the process of preparing for the defense in criminal proceedings. The pragmatism shown by the Senior Courts Costs Office in this case may serve as guidance for future disputes where the reasonable time spent on case preparation and the breadth of legal work entailed are in question.