R v Stallard Case Highlights Complexities in Legal Aid Expenses and TNP Fees

Citation: [2024] EWHC 523 (SCCO)
Judgment on

Introduction

The case “R v Stallard” before the Senior Courts Costs Office (SCCO) delineates the intricate issues surrounding the payment of legal expenses and remuneration under the Criminal Legal Aid (Remuneration) Regulations 2013. This case highlights the determination of allowable expenses for counsel, the interpretation of ‘ineffective trial fees’ (TNP), and the complexities involving VAT on disbursements. The analysis underscores the legal concepts applied by Costs Judge Rowley in assessing the merits of an appeal concerning graduated fee scheme entitlements and the interpretational nuances of the Legal Aid Agency’s (LAA) guidance.

Key Facts

Lawrence Selby, counsel for Nicholas Stallard, appealed the decisions made by a determining officer on the fees and expenses owed under the Advocates Graduated Fee Scheme. Stallard was charged with murder and robbery, ensuing a trial in Birmingham Crown Court, with a verdict of manslaughter and robbery. Subsequently, there arose disputes over claimed subsistence expenses, VAT on disbursements, and TNP fees for days when the trial was scheduled but did not proceed.

Expenses and VAT

The analysis focused on paragraph 28 of the Criminal Legal Aid (Remuneration) Regulations 2013, shaping the statutory jurisdiction of determining officers. Importantly, it brought light to the fact that paragraph 28 does not allow challenges regarding expenses in the redetermination procedure. In other words, advocates or litigators dissatisfied with expenses cannot find recourse in the appeal process, as Costs Judge Leonard’s decision in R v Humfrey clarified.

TNP Fees

The crux of the legal discussion centered on TNP fees, derived from paragraph 16 of Schedule 1 of the 2013 Regulations and related LAA guidance. The issue was whether a trial listed but not proceeded on certain days entitled counsel to TNP fees. Contrasting interpretations of “listed for trial,” along with the relevance of LAA guidance versus stipulations within the Regulations themselves, were scrutinized. Costs Judge Gordon-Saker’s precedent in R v Durnin provided an amplifying touchstone—that a trial is not considered as “listed” if it was taken out of the list priorly—shaping the adjudication of what constitutes an ‘ineffective trial.‘

Outcomes

Subsistence and VAT

The appeal was dismissed regarding subsistence claims and the VAT on disbursements. Costs Judge Rowley indicated a need for clearer guidance from the LAA as to the rationale behind the VAT exclusions, noting that the lack of clarity partially triggered the appeal. The suggestion is to improve LAA’s guidance on VAT in future editions.

TNP Fees

Costs Judge Rowley found that the TNP fees appeal failed to meet the requirements when applying the LAA guidance and accompanying legal principles. The argument that a trial being rendered ineffective while in process should lead to the payment of TNP fees was rejected. The decision reaffirmed that unless the listings/attendance stipulations are met, no TNP fee is payable. Consequently, a refund for the appeal fee, generally considered where an appeal couldn’t be brought, was deemed inappropriate as the TNP issue would have warranted the appeal regardless.

Conclusion

In “R v Stallard,” critical legal principles related to the Criminal Legal Aid (Remuneration) Regulations 2013 were applied to determine the legitimacy of costs claimed by the attending counsel. Key takeaways are the limitations imposed by the regulation on challenging expenses, the nuanced interpretation required to discern guide rates in LAA guidance, and the precise circumstances under which TNP fees can be claimed. The outcome of the appellate analysis draws a clearer boundary within which advocates can claim remuneration, underscoring the utmost importance of clarity and specificity in legal guidance issued by the LAA. This decision must be carefully considered by legal professionals when engaging with graduated fees and preparing for future appeals in the UK’s criminal justice system.

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