Appeal Successful in Including Electronic Evidence in Costs Assessment Under LGFS

Citation: [2024] EWHC 107 (SCCO)
Judgment on

Introduction

In the High Court of Justice Senior Courts Costs Office case of R v Stanley Cave [2024] EWHC 107 (SCCO), the court examined the principles surrounding the inclusion of pages of prosecution evidence (PPE) in costs assessment under the Litigator’s Graduated Fees Scheme (LGFS). The appeal by Virdee Solicitors addresses the challenge of the decision made by the Legal Aid Agency’s Determining Officer, specifically relating to the number of PPE allowed within the claim.

Key Facts

Virdee Solicitors represented Mr. Stanley Cave, who faced charges related to drug supply and possession of a bladed article. The crux of the appeal rested on whether the entirety of the images/photos within the electronic datum (from the Defendant’s phone) should be counted towards the PPE, considering not all were directly related to the case. The prosecution had served 13,988 pages, initially capped at 10,000 pages for regulatory purposes. On appeal, the Appellants sought acknowledgment for 7,354 pages, while the Respondent allowed only 2,880 pages. The Costs Judge, Whalan, is presented with the task of assessing the appropriateness of the electronic evidence included within the scope of PPE.

The court relied on several legal principles and guidelines for determining the proper PPE count:

  1. Scope of PPE: According to the 2013 Regulations, PPE includes witness statements, documentary and pictorial exhibits, records of interviews, both with the assisted person and other defendants, as part of committal or served prosecution documents.

  2. Electronic Evidence: Documents served by the prosecution in electronic form are included in PPE, subject to the appropriate officer’s discretion in cases where the exhibits never existed in paper form.

  3. Authoritative Guidance: Lord Chancellor v. SVS Solicitors [2017] EWHC 1045 (QB), as referenced in this case, elucidates principles such as the definition of “served” evidence and exhibits, how informality in service does not necessarily exclude material from PPE, and the discretionary power of the Determining Officer (or Costs Judge) in including electronic exhibits within PPE.

  4. Discretionary Approach: The discretion allowed under the 2013 Regulations necessitates consideration of the nature of the document and relevant circumstances for inclusion.

The analysis in this case hinges upon the interpretation of these principles and the application of judgment as to what extent electronic datum should count towards PPE, considering their relevance to the case.

Outcomes

Costs Judge Whalan deemed the original assessment by the Determining Officer excessively conservative, given the substantial number of photographs the Crown relied on. Recognizing that a considerable portion of the images/photos was relevant to the Crown’s case, the Costs Judge asserted that a fairer reflection would be the inclusion of 50% of the 4,971 images/photos in question, as opposed to the initial 10% allowed. Consequently, the appeal was allowed to this extent. Moreover, the Appellants’ £100 appeal fee was to be returned, as they succeeded, in part.

Conclusion

The R v Stanley Cave judgment underscores the nuanced application of discretion within costs assessment, emphasizing the importance of relevance and proportionality in determining what constitutes PPE. The court’s decision to include a larger fraction of the photographs as PPE signifies recognition of the evolving digital nature of evidence and the critical need to carefully scrutinize such materials’ relevance to the case. This case will guide practitioners in evaluating PPE in a landscape increasingly dominated by electronic evidence.

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