Court Clarifies Definition of Pages of Prosecution Evidence for Solicitors' Fees in R v Nikolla Case

Citation: [2023] EWHC 3127 (SCCO)
Judgment on

Introduction

In the judgment of R v Nikolla [2023] EWHC 3127 (SCCO), the Senior Courts Costs Office provides a concise ruling on a Costs Judge’s determinations concerning what constitutes pages of prosecution evidence (PPE) relevant for calculating solicitors’ fees under the Litigators’ Graduated Fee Scheme within the Criminal Legal Aid (Remuneration) Regulations 2013. The case addresses the distinction between original documentation and its translated counterparts when considering their inclusion as PPE.

Key Facts

Fahrenheit Law Solicitors represented Thanas Nikolla, who was indicted for the production of cannabis. The case involved a Newton Hearing due to a guilty plea with an unaccepted basis by the prosecution. Key to the appeal were two sets of phone downloads: one contained translated content, and the other was the untranslated original.

The determining officer accepted the translated download as PPE but rejected the untranslated one. The judge, Costs Judge Rowley, was thus faced with the solicitors’ claim that the untranslated version constitutes separate PPE, warranting additional payment.

The focus of the legal debate rested on whether both versions of the phone downloads should be counted as separate and substantive PPE under the Criminal Legal Aid (Remuneration) Regulations 2013.

Costs Judge Rowley turned to analogous situations where secondary documents derived from originals (such as maps and cell site analysis reflecting human judgment) were traditionally treated as additional PPE. These comparisons were perceived as falling within the boundaries of human analytical work, as opposed to duplication. This notion was contrasted with the principle evident in Mr. Ilyas’ argument and the referenced case of R v Brazier (1998), which suggested that expansions of transcripts, whether by the prosecution or defence, should be counted as additional PPE.

Furthermore, Rowley J highlighted the relevance of utility and contribution to the case in determining what qualifies as PPE. Arguments rested on whether the original document provides additional value and not simply a means to verify the translations.

Outcomes

The appeal by Fahrenheit Law Solicitors was dismissed. The judge concluded that the untranslated download does not add substantial utility beyond what is provided by the translated version, which was already accepted as PPE. Hence, the untranslated version could only warrant remuneration for time spent on special preparation, rather than being formally recognized as PPE.

Conclusion

R v Nikolla solidifies an important distinction for solicitors’ remuneration under the Criminal Legal Aid scheme, emphasizing the relevance of substantive contribution and utility gained from document analysis to their qualification as PPE. Cost Judge Rowley’s judgment underscores that mere duplication without additive content does not fulfill the criteria for additional PPE, pivoting on the principle that documents which require active engagement of human judgment, such as translation, may merit separate remuneration. The decision also opens a pathway for solicitors seeking remuneration for special preparation where relevant and necessary.

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