DAS v Paul Asplin

Senior Costs Judge Rowley:

1. This is an appeal by Eleanor Mawrey of counsel against the decision of the determining officer not to extend time for submitting her claim under the Criminal Legal Aid (Remuneration) Regulations 2013, as amended.

2. According to paragraph 5(1) of Schedule 3 of the 2013 Regulations: “Subject to regulation 31, a claim by an advocate for fees for work done in proceedings in the Court of Appeal pursuant to a section 16 determination must not be entertained unless the advocate submits it within three months of the conclusion of the proceedings to which the section 16 determination relates.”

3. Paragraph 5(4) goes on to require a summary of the items of work done in respect of which fees are claimed including the dates on which the work was done, the time taken, the sums claimed and whether the work was done for more than one assisted person.

4. Regulation 31, under the heading “time limits” says: (1) …the time limit within which any act is required or authorised to be done under these Regulations may, for good reason, be extended…[by a Costs Judge or appropriate officer] (2) Where a representative without good reason has failed (or, if an extension were not granted, would fail) to comply with a time limit, the [determining] officer, a Costs Judge or the High Court, as the case may be, may, in exceptional circumstances, extend the time limit and must consider whether it is reasonable in the circumstances to reduce the fees payable to the representative under regulations 4, 5 or 6, provided that the fees must not be reduced unless the representative has been allowed a reasonable opportunity to show cause orally or in writing why the fees should not be reduced.

5. Accordingly, an advocate who does not submit their claim within three months of the conclusion of the proceedings requires either good reason or exceptional circumstances. If they rely on exceptional circumstances, there must also be a consideration of whether to reduce the fees payable to reflect the delay but only if there has been a reasonable opportunity for the advocate to put their case as to why that should not happen.

6. In the case of R v Lafayette [2010] 4 Costs LR 650, Costs Judge Gordon-Saker dealt with a similar application under the predecessor provisions, namely the Criminal Defence Service (Funding) Order 2007. Article 32 of that Order is in materially the same terms as regulation 31 of the 2013 Regulations. The advocate involved in Lafayette was nearly 9 months late in submitting his claim. The determining officer refused to grant an extension and counsel’s claim of £18,000 plus VAT was disallowed entirely. At paragraphs 8 and 9 of his decision, Costs Judge Gordon Saker stated: “8. The reason for the delay in this case was oversight. That cannot, in my judgment, amount to a good reason for the failure to comply with the regulations. However, to disallow the whole claim would in my view be a disproportionate penalty such as to amount to exceptional circumstances sufficient to justify an extension of time.

9. Allowing for the length of the delay and the cause of the delay, this is an appropriate case in which to impose a penalty and a 15% reduction in the fees that are allowed would seem reasonable.”

7. In the appeal before me, Mr Holmes Milner of counsel, who appeared on behalf of Ms Mawrey, contended for a similar reduction in this case.

8. The sums involved are indeed quite similar. Ms Mawrey’s fee note records a fee of £22,781.25 plus VAT as a result of a combined total of just over 100 hours of work. The period of delay however is quite considerably longer. The Court of Appeal heard the case in January 2022 and the submission of the claim occurred at the beginning of 2025. It is therefore a period of delay of three years rather than nine months.

9. It would appear that counsel’s work log was largely complete by February 2022. A process described as tidying up was required. The entries on the spreadsheet used for the basis of billing needed to be compared with Counsel’s diary, emails and phone logs to check that nothing had been missed. Such work was carried out on 21 March, 31 July and 1 August 2022. However, that did not conclude matters as counsel wished to compare notes with the other junior counsel in order to ensure that the detail was correct and that nothing had been overlooked.

10. It appears that there was some difficulty in liaising with the other counsel to establish a Note for Taxation and, as I understand it, that process has still not occurred. It also appears that Ms Mawrey’s leading Counsel was chasing for Ms Mawrey’s note for taxation, presumably in order to assist with leading Counsel’s submission of his claim. It is an odd fact of this appeal that neither her leader nor any of the other counsel involved for the defendants have as yet submitted their claims. If that is indeed correct, it is difficult to understand why.

11. It was suggested by Mr Holmes-Milner, that this difficulty with the other parties counsel represented a good reason in submitting the claim, at least for part of the period of delay. Mr Holmes-Milner suggested that these events might cover a year or so of the delay in submission. I do not think that he could have suggested any longer time period and I am not convinced that a conspiracy of delay, if that is the right terminology, can assist each advocate in providing a good reason for submitting their claims outside of the period required by the regulations.

12. In any event, in order to succeed in overturning the determining officer’s decision to refuse to grant the necessary extension of time, there is at least a period for which there needs to be an exceptional reason.

13. It seemed to me that the conclusion of Costs Judge Gordon-Saker in Lafayette that the Draconian nature of the sanction i.e. complete disallowance of the claim, in itself created an exceptional reason, was a little surprising. It seemed to mean that no claim could be disallowed since to do so would always provide exceptional reasons as to why in fact the claim should be allowed, albeit perhaps with a reduction in the fees.

14. Mr Holmes-Milner sought to persuade me that in fact the nature of the test in Regulation 31 regarding exceptional circumstances would not always reach this conclusion. As such, there may be other situations where the advocate was appropriately prevented from bringing their claim. However, the need for the Costs Judge to consider the sanction of reducing fees at the same time as considering the existence of any exceptional circumstances led to the conclusion reached by Costs Judge Gordon-Saker in a case of this nature being an appropriate one.

15. I have to say that I had some difficulty following that argument, and it may be that I have not set it out as clearly as Mr Holmes-Milner, put it. But it seems to me quite clear that the test requires the court to consider whether there are any exceptional circumstances and if there are, then whether or not it would be reasonable to reduce the fees by a percentage from the fees that would otherwise be allowable.

16. It is obviously the case that to disallow any claim to be made has a very serious effect, particularly where the fees are substantial. Mr Holmes-Milner, prayed in aid the challenging nature of practising criminal law in a legally aided environment. Whilst I accept that to be the case, it simply makes the delay in submitting this claim to be all the more puzzling.

17. It seems to me that the separation of the two aspects of the test helps the advocate in demonstrating that a reduction in the fees is not an inevitable consequence. Some circumstances considered to be exceptional, based on the test, must entitle the advocate to 100% of the fees that they would have received if they had made the claim within three months. This perhaps chimes with the fact that the advocate has obviously carried out work which ought to be remunerated and which, at least as far as the public purse is concerned, has simply been claimed later than ought to have been the case.

18. The determining officer, quite properly pointed out that the delay in submission of this claim meant that he would have to reacquaint himself with the case and that additional time would have the effect of delaying his assessment of other claims which had been made in time. Mr Holmes-Milner sought to equate this extra time as being the justification for a reduction of perhaps 15% of the fees.

19. What does the phrase “exceptional circumstances” mean in this context? Although the word exceptional is regularly used in legal tests, it is not easy to find helpful dicta from the senior courts to assist in any particular case. Mr Holmes-Milner relied upon a description by Leveson LJ in a different context, where he said “the exceptional circumstances to which 45.12 refer must be exceptional in the sense that the case is taken out of the general run of this type of case, by reason of some circumstances which mean that greater costs are in fact incurred than would reasonably be expected to be incurred.”

20. The only part of that quote which might assist in this case is the reference to being taken out of the general run of this type of case. It seems to me that “this type of case” means claims which have been submitted later than the three months allowed. A good deal of the inaction in this case seems to be of the sort described in Lafayette as being “oversight” such as a failure to deal with another counsel’s clerk requesting a note of taxation. None of that seems to me to take the case out of the general run. Whilst appeals of this nature are not very common, the usual factor for much of the delay is generally simply an overlooking of the need to submit the claim as a result of a practitioner’s otherwise busy practice.

21. The only issue which might take this case out of the general run of cases is the peculiar situation where none of the defendant’s advocates appears to have brought their claim in anything like the expected time period. As I have said, I do not think that each advocate can simply rely upon the delay of others, but it does indicate that Ms Mawrey’s delay is rather less surprising than it at first appears.

22. I am persuaded, on balance, to consider this to be an exceptional circumstance, such that I ought to extend the time limit for bringing this claim. However, in order to reflect the additional time required by the determining officer to reacquaint himself with the case in order to deal with this claim, and generally to reflect the length of the delay, it seems to me that I ought to make a reduction to the fees that would otherwise be allowed and that such a reduction should be significant. There is no signpost from other cases as to the extent of that reduction which assists, but, in my view, a reduction of 50% would be appropriate.

23. Consequently, this appeal has been successful, to an extent. But given the limitation on the extent of the fees to be recovered and generally the need essentially to apply for relief from a sanction, I do not consider it appropriate to award counsel any costs of this appeal, save for the appeal fee itself.