Drummond Solicitors Limited v The Lord Chancellor

The appeal has been unsuccessful for the reasons set out below. REASONS FOR DECISION

1. The issue arising in this appeal is as to the correct assessment of the number of pages of prosecution evidence when determining the fees due under the Criminal Legal Aid (Remuneration) Regulations 2013 (‘the scheme’). As is well known and explained in more detail in the decision of Holroyde J (as he then was) in Lord Chancellor v SVS Solicitors [2017] EWHC 1045, the scheme provides for legal representatives to be remunerated by reference to a formula which takes into account, amongst other things, the number of served pages of prosecution evidence as defined in the 2013 Regulations, the PPE (subject to a cap, in this case of 10,000 pages), and the length of the trial. The dispute in this case concerns the extent to which evidence served in electronic form should count toward the PPE.

2. At the hearing on 3 September 2025 the Appellant was represented by counsel Mr. Smith and Mr.Orde, employed counsel for thee Respondent (effectively the Legal Aid Authority).

3. The Appellant is a litigator (for the purpose of the scheme) who represented the Defendant under a Representation Order dated 3 December 2021, in proceedings before the Crown Court at Leeds. The Defendant charged with rape a female under 16. I understand that that a trial has already occurred but the Defendant is facing a re-trial.

4. The PPE was initially assessed as 2741 pages by the Determining Officer.

5. Two telephones had seized as part of the investigation which were understood to have been used by the Defendant (and attributed to him). Material on the phones was downloaded and took the form of a report. No allowances were however made for this downloaded material. The Determining Officer was not satisfied that the evidence in electronic form was served for the purpose of the scheme, rather that it was unused material. The Legal Framework

6. Paragraphs 1(2) to 1(5) of Schedule 2 of the 2013 Regulations provide as follows: (2) For the purposes of this Schedule, the number of pages of prosecution evidence served on the court must be determined in accordance with sub-paragraphs (3) to (5). (3) The number of pages of prosecution evidence includes all — (a) witness statements. (b) documentary and pictorial exhibits. (c) records of interviews with the assisted person; and (d) records of interviews with other Defendants, which form part of the served prosecution documents or which are included in any notice of additional evidence. (4) Subject to sub-paragraph (5), a document served by the prosecution in electronic form is included in the number of pages of prosecution evidence. (5) A documentary or pictorial exhibit which — (a) has been served by the prosecution in electronic form. and (b) has never existed in paper form, is not included within the number of pages of prosecution evidence unless the appropriate officer decides that it would be appropriate to include it in the pages of prosecution evidence taking into account the nature of the document and any other relevant circumstances . ” (my underlingin)

7. As Holroyde J (as he then was) made clear in SVS , material which is, as he put it, only disclosed as unused material cannot be PPE. However, it is clear from the judgment that ‘service’ for the purposes of the regulations may be informal. ‘Served’ means served as part of the evidence and exhibits in the case and evidence may be served even though the prosecution does not specifically rely on every part of it. In SVS (at [50]) the Holroyde J set out the approach to be taken : (viii) If—regrettably—the status of particular material has not been clearly resolved between the parties, or (exceptionally) by a ruling of the trial judge, then the determining officer (or, on appeal, the costs judge) will have to determine it in the light of all the information which is available. The view initially taken by the prosecution as to the status of the material will be a very important consideration, and will often be decisive, but is not necessarily so: if in reality the material was of central importance to the trial ( and not merely helpful to the defence ), the determining officer (or costs judge) would be entitled to conclude that it was in fact served, and that the absence of formal service should not affect its inclusion in the PPE. Again, this will be a case-specific decision. In making that decision, the determining officer (or costs judge) would be entitled to regard the failure of the parties to reach any agreement, or to seek a ruling from the trial judge, as a powerful indication that the prosecution's initial view as to the status of the material was correct. If the determining officer (or costs judge) is unable to conclude that material was in fact served, then it must be treated as unused material, even if it was important to the defence . (ix) If an exhibit is served, but in electronic form and in circumstances which come within paragraph 1(5) of Schedule 2 , the determining officer (or, on appeal, the costs judge) will have a discretion as to whether he or she considers it appropriate to include it in the PPE. As I have indicated above, the LAA's Crown Court Fee Guidance explains the factors which should be considered. This is an important and valuable control mechanism which ensures that public funds are not expended inappropriately. (x) If an exhibit is served in electronic form but the determining officer or costs judge considers it inappropriate to include it in the count of PPE, a claim for special preparation may be made by the solicitors in the limited circumstances defined by paragraph 20 of Schedule 2 . (xi) If material which has been disclosed as unused material has not in fact been served (even informally) as evidence or exhibits, and the determining officer has not concluded that it should have been served (as indicated at (viii) above), then it cannot be included in the number of PPE. In such circumstances, the discretion under paragraph 1(5) does not apply. (my underlining)

8. It is clear from the terms of Regulation 1(5) and the guidance set out above that it is not of itself enough for the material to count as PPE that it be ‘served’. When dealing with the issue as to whether served material should count as PPE, Holroyde J, said this: “If an exhibit is served, but in electronic form and in circumstances which come within paragraph 1(5) of Schedule 2, the Determining Officer (or, on appeal, the Costs Judge) will have a discretion as to whether he or she considers it appropriate to include it in the PPE. As I have indicated above, the LAA’s Crown Court Fee Guidance explains the factors which should be considered. This is an important and valuable control mechanism which ensures that public funds are not expended inappropriately. If an exhibit is served in electronic form but the Determining Officer or Costs Judge considers it inappropriate to include it in the count of PPE, a claim for special preparation may be made by the solicitors in the limited circumstances defined by Paragraph 20 of Schedule 2”.

9. It is also clear that downloaded material need not be regarded as one integral whole, as a witness statement would be, and that when exercising discretion under paragraph 1(5) a qualitative assessment of the material is required, having regard to the guidance in Lord Chancellor v Edward Hayes LLP [2017] EWHC 138 (QB) and SVS (including in particular para. 44 to 48), and the Crown Court Fee Guidance (updated in March 2017). I have considered it in this context.

10. The Crown Court Fee Guidance, which was updated in March 2017, prior to the decision in SVS , provides as follows: “In relation to documentary or pictorial exhibits served in electronic form (i.e., those which may be the subject of the Determining Officer’s discretion under paragraph 1(5) of the Schedule 2) the table indicates – “ The Determining Officer will take into account whether the document would have been printed by the prosecution and served in paper form prior to 1 April 2012. If so, then it will be counted as PPE. If the Determining Officer is unable to make that assessment, they will take into account ‘any other relevant circumstances’ such as the importance of the evidence to the case, the amount and the nature of the work that was required to be done, and by whom, and the extent to which the electronic evidence featured in the case against the Defendant .” [my underlining]

11. At paragraph 38 of Appendix D, the Guidance gives examples of documentary or pictorial exhibits which will ordinarily be counted as PPE. They include – “ Raw phone data where a detailed schedule has been created by the prosecution which is served and relied on and is relevant to the Defendant’s case . Raw phone data if it is served without a schedule having been created by the prosecution, but the evidence nevertheless remains important to the prosecution case and is relevant to the Defendant’s case, e.g., it can be shown that a careful analysis had to be carried out on the data to dispute the extent of the Defendant’s involvement . Raw phone data where the case is a conspiracy, and the electronic evidence relates to the Defendant and co-conspirators with whom the Defendant had direct contact.

12. More recently Lord Chancellor v Lam and Meerbux Solicitors [2023] EWHC 1186 Cotter J held at [57]: “The lodestar of the assessment of electronic evidence is the aim to ensure that remuneration is appropriate and to avoid either underpayment, when consideration has been given to its content, or overpayment, through “golden bonuses”, simply because there is a large volume of such evidence, even though it has not been considered.”

13. The discretion is an important and valuable control mechanism which ensures that public funds are not expended inappropriately ( SVS, [50(ix)]). It is intended to cover circumstances of significant overpayment, such as for consideration of pages of an exhibit that required no consideration at all because they were blank or contained no usable data were not expended inappropriately [ Lam [37]). There is thus a relation between the work reasonably required and the allowance of the PPE (confirmed in the recent decision of Lord Chancellor v IMS Law [2025] EWHC 2018 (KB).

14. Both Holroyde J, as he then was, in SVS and Cotter J in Lam cited, with approval, part of the decision of Senior Costs Judge Gordon-Saker in R v Jalibaghodelezhi [2014] 4 Costs LR 781 . That decision concerned a Funding Order, which was in force at the material time and is, in material respects, similar to the 2013 Regulations; the relevant passages are at paragraph 11: “The Funding Order requires the Agency to consider whether it is appropriate to include evidence which has only ever existed electronically ‘taking into account the nature of the document and any other relevant circumstances. Had it been intended to limit those circumstances only to the issue of whether the evidence would previously have been served in paper format, the Funding Order could easily so have provided. It seems to me that the more obvious intention of the Funding Order is that documents which are served electronically and have never existed in paper form should be treated as pages of prosecution evidence if they require a similar degree of consideration to evidence served on paper. So, in a case where, for example, thousands of pages of raw telephone data have been served and the task of the Defence lawyers is simply to see whether their client's mobile phone number appears anywhere (a task more easily done by electronic search), it would be difficult to conclude that the pages should be treated as part of the page count. Where however the evidence served electronically is an important part of the prosecution case, it would be difficult to conclude that the pages should not be treated as part of the page count .” [my underlining].

17. There is a burden on the Appellant when seeking to assert that a higher assessment should be made, to establish that the material was relevant and needed to be considered closely. In Lam Cotter J appeared to approved a passage to this effect in R v Lawrence [2022] EWHC 3355 in which I said: “ The Appellant was instructed in the criminal proceedings and will know what issues arose. The Appellant will know what evidence was relied upon by the prosecution and what evidence amongst the material served was relevant. The difficulty with assessing the pages of electronic material is that it tends to include a large amount of irrelevant material. That was the case here. The premise of the claim to include the material as PPE is that it is material that required some consideration as opposed to being material that only required a glance .[21] “

18. Further, when conducting any assessment of electronic material there is nothing wrong, if it necessary and appropriate, with a rough and ready analysis; a “ sensible approximation ”. It is an entirely proper approach to consider the content of a documentary or pictorial exhibit and conclude that only a proportion of the pages should count as PPE (Lam, [62]).

19. Finally, it is appropriate to point out even if by way of emphasis, that if material is not appropriately to be regarded as PPE, then it may be remunerated by a special preparation fee provided for in paragraph 20 Schedule 2 of the 2013 Regulations. Merely because material has to be read by the litigants or the advocate does not mean it should for the reason count at PPE . (as has previously been said in many cases; cf R v Fur niss [2015] 1 Costs LR 151 of Haddon – Cave J, as he then was, requiring otherwise) As appears to me to be clear in SVS and has since been confirmed, material that does not need to be looked at reasonably closely does not generally count toward the PPE page count. A Special Preparation Fee is based on time actually spent; that is to say, the number of hours the Determining Officer considers reasonable to view the evidence other than that allowed as PPE (see too, R v Sana [2016] 6 Cost LR 1143 on this point) . Application of the guidance to the facts in this case

20. Plainly the electronic material taken from a mobile telephone has potential relevance in many cases to support or undermine the prosecution case. The Prosecution’s case here relied on the evidence of the complainant and her account that she had given to the police in interview was that she was raped by a man called ‘Lucky’. The Defendant’s full name was Mohammed Luqman Daji . It was clear that if the name ‘Lucky’ were found in the downloaded material it might support the prosecution case, corroborating the account of the complainant. But if there was no reference to by this name in the various messages (and group chats ) then this might go to undermine the evidence of the complainant. Similarly the material might be relevant if the material were to point to the Defendant was have visited websites associated with child pornography and grooming-and there were links in the material with other defendants.

20. In the event there was no material from the phones which was of assistance to Prosecution’s case. The material was provided informally at the request of the Defendant’s representative who instructed an expert to search it and although the word ‘lucky’ was found in much of the material, it was as was used as adjective not as a name. There was no evidence of visiting relevant websites and there was only limited contact with someone with the name of one of the defendants. Consideration of this matter led to ab agreement being put to the jury i in the trial that the relevant phon data contained no details of communication by the Defendant with any of the co-defendants, no reference in the material ‘Lucky’ as Mr. Daji’s name and no text or WhatsApp message sent from or received by the Defendant over the period 2005 to 2021 referring to him as ‘Lucky’.

21. If the decision were left to myself I would have some considerable doubt as to whether the provision of this material would count as served material relied upon by the Prosecution and not merely relied upon by the Defence. It is clear that in the event the material went to supporting the Defendant’s case that he was not the person who assaulted the complainant because he was not known as Lucky. I have some doubts as to whether it could be regarded as supporting the prosecution case merely because in order to give a balanced account of their case the prosecution agreed to provide the jury with the note which recorded the absence of supportive material in the data extracted on the phone. It may be then that the material was properly to be regarded as unused material’ which was supportive of the Defendant’s case. However the point is not for me to decide. It has been conceded by the Respondent that the evidence is to be treated as served for the purposes of the scheme (and thus not unused material) and there was no attempt to withdraw that the admission.

22. There were however a number of further and important matters raised made by Mr, Orde. The essence of his position is that even though the material was served, in the exercise of my discretion it should not count PPE and if compensation was appropriate for the work done considering this material it should be by way of a special preparation fee. This was at least in part because work that had been done by an expert in examining the material (over period of some 25 hours) and the fees of this expert of some £2,400, have been met by the Respondent. This expert in the field of Mobile Device Analysis had provided the solicitors will the results of an appropriate investigation of the material. These were relevant circumstances for me to take into account in the exercise of my discretion.

23. Mr. Smith did not, as I understood his position, say that the obtaining of the report and the fact that the LAA and met their fee as a disbursement was not a relevant circumstance for the purpose of the test set out. It seems to me that it plainly is (as Senior Costs Judge Rowley accepted in R v Walker [ [2024] EWHC 2071 ). Where work is, in effect, delegated to an outside agency or expert this, it seems to me, is plainly capable of being taken into account following the guidance set out above. The work in this case involved the checking of what I understand to be a very large amount of material The material was not produced to me bu it was suggested, I think that there were some 2m pages of material – but). Albeit it was not clear from the submissions whether the material was in PDF or excel spreadsheet form (or both) the work could have been done by a solicitor or counsel by use of the search functions and in Excel using the filter functions as well. I would ordinarily expect such material to be served in both formats ; in any event there is some indication in the underlying papers that it was available in Excel (and hence filterable).

24. Mr. Smith’s argument was that the mere fact that the work considering the electronic material was work that the solicitor had to do, even though it had also be done by the expert, was sufficient to count as PPE. The work needed to be checked.

25. It is clear from guidance that the mere fact that the solicitors is under an obligation to consider the relevant material does not make it PPE. I do not accept Mr. Smith’s attempted analogy with the situation where there is medical report in a clinical negligence action and a claim for the costs of considering the underlying notes. The report in this case by the expertspecifically undertaken to identity possibly relevant material in a very large amount of material. Whilst the solicitor might havebeen expected to have carried out some checks on the underlying material to ensure the correctness of the expert’s approach, I do not think this is sufficient for these purposes for the material to count as PPE. It does not seem to me that the task required the close consideration by the solicitor of a substantial number of particular pages of the material. If any work was done by solicitor to check the work of expert it would involved searching and filtering (if possible) the material to check for instance there reference to ‘lucky’. It was said that the work involved finding hundreds of references to this word n the material but if any of the material were checked it is difficult to see that it would require much more than a cursory look. Indeed using the filtering function in Excel only messages containing the word ‘lucky’ need be viewed. Even if a PDF version required any checking it should not it seems to me have taken long even assuming all the references to ‘lucky’ needed to be checked -which seems to be doubtful.

26. PPE is not assessed on the basis of work actually done. However even if some work required checking the expert’s report here, it seems to me tit would have been modest. I was not in the event shown any attendance notes, and was unclear whether the solicitors had simply relied upon the expert’s work.

27. It seems to me, as I said in R v Bowen [2024] EWHC 21, that where the task involves merely cursory checking, as here, it is apt to be compensated by way of a special preparation fee where a determining officer can consider whether and if so, how much time was involved in the task.

28. Taking into account all the circumstances it seems to me that if this work is to be compensated it should be by way of special preparation fee not by way of PPE.

29. I could perhaps add that Mr, Orde told me that fee payable on the basis of PPE as assessed was some £35,000. Had the Appellant been right in contending that the electronic material should count as PPE the fee payable would be nearer £110,000. Without going into the detail of all of this, it would at first blush seems to confirm the correctness of the approach advocated by the Respondent. COSTS JUDGE BROWN