R v Spriddell

1. This is an appeal from the assessment of costs recoverable by Mr David Spriddell (“The Appellant”) by virtue of a defendant’s costs order made in the Crown Court at Southwark under section 16(3) of the Prosecution of Offences Act 1985 . The order was made on 6 April 2023 and I am advised that it was in the following terms:- “…. payment to be made to the defendant out of central funds and that sum to be determined… the sum to be paid includes costs incurred in the Crown Court and proceedings in the magistrates’ court… The costs payable shall include an amount in respect of legal costs… Legal costs shall include costs in relation to (a) the investigation, including interviews under caution which commenced in respect of the defendant on 12/9/16 (b) the magistrates’ court and (c) the Crown Court proceedings… Legal costs shall be limited to the cost of one King’s Counsel, one junior counsel, solicitors and disbursements…” The Law

2. These are the relevant statutory provisions.

3. Section 16(2) ,(6) and (6A) of the 1985 Act : “(2) Where… any person is tried on indictment and acquitted on any count in the indictment… the Crown Court may make a defendant’s costs order in favour of the accused… (6) A defendant’s costs order shall, subject to the following provisions of this section, be for the payment out of central funds, to the person in whose favour the order is made, of such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings... (6B) Subsections (6) and (6A) have effect subject to… regulations under section 20(1A)(d).”

4. Section 20(1A): “The Lord Chancellor may by regulations— (a) make provision as to the amounts that may be ordered to be paid out of central funds in pursuance of a costs order, whether by specifying rates or scales or by making other provision as to the calculation of the amounts, (b) make provision as to the circumstances in which and conditions under which such amounts may be paid or ordered to be paid, (c) make provision requiring amounts required to be paid out of central funds by a costs order to be calculated having regard to regulations under paragraphs (a) and (b), (d) make provision requiring amounts required to be paid to a person out of central funds by a relevant costs order to be calculated in accordance with such regulations (whether or not that results in the fixing of an amount that the court considers reasonably sufficient or necessary to compensate the person)…”

5. Costs recoverable under a defendant’s costs order are assessed by reference to the provisions of Part III of the Costs in Criminal Cases (General) Regulations 1986. Regulation 5 provides for the costs payable under a section 16 order (subject to an exception that has no application here) to be determined by an officer appointed by the Lord Chancellor. In this case, that is the Legal Aid Agency’s Determining Officer.

6. Regulation 7 of the 1986 Regulations says: “(1) The appropriate authority shall consider the claim and any further particulars, information or documents submitted by the applicant under regulation 6(5), and shall allow costs in respect of— (a) such work as appears to it to have been actually and reasonably done; and (b) such disbursements as appear to it to have been actually and reasonably incurred. (2) In calculating costs under paragraph (1) the appropriate authority shall take into account all the relevant circumstances of the case including the nature, importance, complexity and difficulty of the work and the time involved. (3) Any doubts which the appropriate authority may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved against the applicant. (4) The costs awarded shall not exceed the costs actually incurred. (5) Subject to paragraph (6), the appropriate authority shall allow such legal costs as it considers reasonably sufficient to compensate the applicant for any expenses properly incurred by him in the proceedings. (6) Where the subject of a costs order is an individual and… the order was made under section 16(1) , (3) or (4)(a)(ii) or (iii) or (d) of the Act … the appropriate authority shall calculate amounts payable out of central funds in respect of legal costs to the individual in accordance with the rates or scales or other provision made by the Lord Chancellor pursuant to paragraph (7), whether or not that results in the fixing of an amount that the appropriate authority considers reasonably sufficient or necessary to compensate the individual. (7) The Lord Chancellor shall, with the consent of the Treasury, determine provision (whether in the form of rates or scales or other provision) as to how amounts payable out of central funds in respect of legal costs shall be calculated..”

7. Regulations 9 and 10 of the 1986 Regulations provide for the redetermination, provision of written reasons and appeal to a Costs Judge of section 16 costs in the Crown Court, but not in the Magistrates’ Court.

8. Regulation 9, sub-paragraphs (1), (5) and (6) provide (my emphasis): “(1) An applicant who is dissatisfied with the costs determined under these Regulations by an appropriate authority in respect of proceedings other than proceedings before a magistrates’ court may apply to the appropriate authority to redetermine them…. (5) The appropriate authority shall redetermine the costs, whether by way of increase, decrease or at the level previously determined, in the light of the objections made by the applicant or on his behalf and shall notify the applicant of its decision. (6) The applicant may request the appropriate authority to give reasons in writing for its decision and, if so requested, the appropriate authority shall comply with the request.”

9. Regulation 10 provides for an appeal from the appropriate authority to a costs judge. Sub-paragraphs (1) and (11)-(14) provide: (1) Where the appropriate authority has given its reasons for its decision on a redetermination under regulation 9, an applicant who is dissatisfied with that decision may appeal to a costs judge… (11) The costs judge may consult the presiding judge, and the appropriate authority or the determining officer who redetermined the costs on its behalf as the case may be, and may require the appellant to provide any further information which he requires for the purpose of the appeal and, unless the costs judge otherwise directs, no further evidence shall be received on the hearing of the appeal and no ground of objection shall be valid which was not raised on the redetermination under regulation 9. (12) The costs judge shall have the same powers as the appropriate authority under these Regulations and, in the exercise of such powers, may alter the redetermination of the appropriate authority in respect of any sum allowed, whether by increase or decrease, as he thinks fit. (13) The costs judge shall communicate his decision and the reasons for it in writing to the appellant, the Lord Chancellor, and the appropriate authority or the determining officer who redetermined the costs on its behalf as the case may be. (14) Save where he confirms or decreases the sums redetermined under regulation 9, the costs judge may allow the appellant a sum in respect of part or all of any reasonable costs (including any fee payable in respect of an appeal) incurred by him in connection with the appeal.”

10. This is an appeal under Regulation 10.

11. Regulation 10(12) provides that on appeal, I have the same powers as the Determining Officer and may alter her findings, whether by increase or decrease, as I think fit.

12. Rule 45.2(7) of the Criminal Procedure Rules provides: “On an assessment of the amount of costs, relevant factors include— (a) the conduct of all the parties; (b) the particular complexity of the matter or the difficulty or novelty of the questions raised; (c) the skill, effort, specialised knowledge and responsibility involved; (d) the time spent on the case; (e) the place where and the circumstances in which work or any part of it was done; and (f) any direction or observations by the court that made the costs order.…” The Prescribed Rates and Scales

13. The prescribed rates and scales set by the Lord Chancellor under section 20 (1A) of the 1985 Act and referred to by regulation 7 of the 1986 regulations are published by the Ministry of Justice. The current version, as applicable to the prosecution of the Appellant, is dated 24 March 2016. The published rates and scales make provision for payment of litigators (generally, the solicitors conducting the case) and advocates (counsel, or a duly authorised solicitor advocate) in various circumstances. Paragraphs 2.1 and 2.2 read: “2.1 Litigators in the Crown Court (1) Where a case has been sent to the Crown Court for trial, a bill of indictment has been preferred or a re-trial ordered by the Court of Appeal, amounts payable out of central funds in respect of work done by litigators in the Crown Court shall be calculated in accordance with the rates, scales and other provision set out in the tables at paragraph 3.1.(1) and the provisions of sub paragraphs 3.1.(2) to 3.1.(7) shall apply to any consideration of reduction or enhancement of the hourly rates… 2.2 Advocates in the Crown Court (1) Where a case has been sent to the Crown Court for trial, a bill of indictment has been preferred or a re-trial ordered by the Court of Appeal, amounts payable out of central funds in respect of work done by advocates in the Crown Court shall be calculated in accordance with the rates, scales and other provision set out in the table at paragraph 3.2.(1) and the provisions of sub paragraphs 3.2.(2) to 3.2.(4) shall apply…”

14. There are provisions at paragraphs 3 to 7 of the published rates and scales for litigators to receive an enhancement of up to 100% on the prescribed rates for work, including routine letters and telephone calls, where criteria such as exceptional competence or complexity are met. For advocates, paragraph 3.2(4) provides: “Where it appears, taking into account all the relevant circumstances of the case, that owing to the exceptional circumstances of the case the amount payable by way of fees in accordance with the table above would not provide reasonable remuneration for some or all of the work allowed, there may be allowed such amounts as appear to be reasonable remuneration for the relevant work.”

15. Paragraph 5.1, under the heading “Interpretation”, provides: “In this document: “exceptional” is to be interpreted as exceptional as to the generality of proceedings to which these provisions apply. “reasonable remuneration” is to be interpreted as if the determination was being conducted under the Criminal Legal Aid Regulations.” The Prosecution

16. The prosecution was undertaken by the Serious Fraud Office (“SFO”), which summarised the case as follows. “In the spring of 2013 Balli Group Plc and Balli Steel Plc collapsed with debts of around ½ billion dollars. It was the Prosecution case that, in the period preceding the collapse of the companies, there had been widespread and systematic fraud and financial misconduct by the directors and senior employees of Balli Group Plc and Balli Steel Plc. Trade finance banks had been misled and documents had been falsified as part of an overarching scheme to induce those banks to continue lending to Balli Steel Plc in order to keep the company going. Increasingly egregious lies were told to the banks in order to stave off collapse. By 2012 Balli Steel Plc was obtaining finance for steel deals where no steel existed. A time came when Balli was obtaining advances from banks for the sole purpose of paying off previous advances. Many of these advances were “paper” deals where no goods and thus no security existed. The dishonesty underpinning the borrowing meant that the defendants had to borrow more and more just to keep the scheme afloat. The investigation involved a record-breaking degree of international co-operation. Law enforcement partners in 36 separate countries including Belgium and The Netherlands provided evidence and information, more than any previous SFO investigation.”

17. The Appellant was one of the directors of Balli Group and Balli Steel, and was charged on two counts of overarching fraud offences. He was one of eight co-defendants, but he had been finance director and the case turned on the state of the finances of the companies. Two employees of the company, Melis Erda and Louise Worsell, were also charged with a number of substantive frauds (counts 1 to 6) but the two overarching frauds encompassed those offences. So, for example, when a co-defendant, Nasser Alaghband, pleaded guilty to one of the overarching frauds in count 7, counts 1 to 6 were not proceeded with. His conduct on counts 1 to 6 was said to have been subsumed in the conduct he was sentenced for on count 7.

18. The Appellant’s solicitors, Jonas Roy Bloom, were initially instructed in September 2016 in respect of the SFO investigation. At that stage Bali Holdings had agreed to cover the Appellant’s “reasonable costs”. Jonas Roy Bloom were instructed again in September 2020 to represent the Appellant in proceedings in both the Magistrates’ and Crown Court. The Appellant made an application for legal aid for proceedings in the Crown Court which was refused on 8 December 2022 on grounds of financial eligibility.

19. Following a number of directions hearings, the trial of seven of the eight defendants commenced on 7 September 2022 (Nassar Alaghband having entered a guilty plea on 17 June 2022). The jury was sworn on 9 September 2022. The Appellant was found not guilty of all counts on 2 February 2023.

20. All but two of the issues that were originally the subject of this appeal have been resolved. Of the two that have not, the first concerns routine letters and emails. Routine Items

21. In costs, whether civil or criminal, “routine” describes letters, emails and telephone calls of short duration. In other contexts they are generally remunerated at one tenth of an hour. In the published rates and scales for defence costs, they are paid (subject to enhancement) at a fixed rate per item.

22. The Appellant made no claim for routine items, but the Determining Officer found that Jonas Roy Bloom’s preparation claim incorporated a number of such items. As a result, of 158 hours 48 minutes claimed in the Magistrates’ court, 86 hours and 42 minutes was allowed as preparation whilst 174 items were identified as routine and remunerated at £3.56 each rather than at an hourly rate. Of 630 hours and 30 minutes claimed for Crown Court work, she allowed 421 hours and 36 minutes’ preparation whilst 357 items were identified as routine and allowed at £3.29 each.

23. There are the Appellant’s submissions. The Appellant says that this was at all times a complicated and difficult case. Nothing about it was “routine”. “Routine” correspondence claimed at fixed rates tends to cover menial tasks like those carried out by secretarial and support staff, very short items such as calls to book counsel or check dates, or standard letters confirming a new date. No such tasks have been claimed here. This was not a file which could be “picked up and put down”, either figuratively or literally, and at no stage was its conduct routine.

24. None of the short six minute items in the Appellant’s claim were, accordingly, in the category of routine. Merely routine items will not have been itemised or charged, as they were not chargeable to the client. What the Appellant has itemised and claimed is every time the file needed work which was beyond routine and involved no less than 6 minutes of time. Even with short six minute pieces of work, thought had to be given to all communications that came in, and were as a result sent, and the impact on the case from a variety of angles, and the burden on the litigator throughout has to be borne in mind. The Appellant offers examples of emails that were claimed at 6 minutes for ease when preparing the bill, but were not routine matter nor did they take only 6 minutes we claimed. The Appellant was transparent and only billed for work that really did take up to 6 minutes.

25. Ms Weisman, for the Respondent, rejects the Appellant’s assertion that no items have been claimed as non-routine which might more properly be regarded as routine. She gives examples of items claimed within a block of hours characterised as general preparation which include correspondence forwarding items to the Appellant; arranging appointments; acknowledging receipt of material; and requesting updates. It cannot be said, she submits, that none of them are of the type of tasks that might be completed by support staff, and in any event the test is whether they would be routine for a solicitor. Conclusions on Routine Items

26. There is no provision in the 1986 Regulations for redeterminations or appeals from the Determining Officer’s decision on costs in the Magistrates’ Court, so that part of the appeal must fail.

27. As for the Crown Court costs, “routine” items are so called by reference to the time they take (or should take), not by reference to the complexity of the underlying case. Short letters, emails and telephone calls are a feature of every costs claim, however big and complex the underlying case, and if an item is recorded at six minutes or less it is a routine item.

28. I have reviewed the spreadsheet produced by the Determining Officer on her assessment, and as Ms Weisman says it incorporates some obviously routine communications, claimed at six minutes. With regard to timed items “downgraded” to routine, the Determining Officer has taken a conservative approach, resolving the element of doubt (as the 1986 Regulations require) against the paying party. From what I have seen I would not take issue with her overall approach.

29. The real issue (as discussed with the Appellant’s advocate, Mr Henry, on the hearing of this appeal) seems to me to be that on excluding routine items from the Appellant’s preparation, claim the Determining Officer has refused any enhancement on those items, whilst allowing enhancement on timed items. As I observed in R v Perkins (SC-2020-CRI-000022, 11 August 2020), where substantial responsibility is accepted by the conducting solicitors in a complex case and the elements justifying enhancement are present, then routine communications form part and parcel of the overall work and themselves merit enhancement. That is where the Appellant’s arguments, to my mind, have some force.

30. That is not how the case was put to the Determining Officer, but it is in effect part of the Appellant’s case. To the extent that this might be considered a new ground of objection under regulation 10, I think it fair to allow it. I find that the routine items identified by the Determining officer should be allowed the same degree of enhancement as preparation time. Counsel’s Fees

31. In about July 2022 Bali Holdings withdrew its financial support from the Appellant, as a result of which counsel instructed by the Appellant at the time, Graham Brodie KC and Richard Power, ceased to act. The Appellant was left with little time to find counsel for the trial listed for 7 September and expected to last for between 75 and 80 days (in the event, there were 89 trial days over almost 5 months).

32. The Appellant, on 13 July 2022, instructed Orlando Pownall KC and (as junior) Lee Marklew KC, negotiating fixed fees of £300,000 for Mr Pownall and £180,000 for Mr Marklew.

33. Mr Pownall addressed the court on the hearing of this appeal. He described the Appellant’s trial as the longest in his considerable experience (including his time as Treasury counsel), with the losses attributed to the alleged frauds quantified at half a billion US$. It was an exceptionally complex case, with some 14 counsel, over 1 million pages of evidence and no expert evidence on the alleged fraud. With other defendants’ counsel having already been instructed over periods of months or years, there was a great deal of catching up to do.

34. At first it was understood that the Appellant would be able to rely upon trial preparation undertaken by the legal team for Mr Alaghband, who (I understand) offered assurances that they would be addressing the complex factual issues and that it would not be necessary for the Appellant’s team to involve themselves in the preparation of schedules or a jury bundle. Then, during trial on 17 November, counsel for Mr Alaghband notified the Appellant’s team by email that there was a “medical issue” which has the potential to impact on his continued participation in the trial. I understand that in fact Mr Alaghband had been diagnosed with dementia.

35. This wrongfooted the Appellant’s legal team and increased the burden upon counsel, and the day-to-day workload, to a degree described by Mr Pownall as unprecedented in his experience. He has logged 193.5 hours’ additional preparation during the trial, including on weekends and holidays, not including morning and evening consultations with the Appellant every weekday.

36. The Determining Officer accepted that the published rates and scales would not provide reasonable remuneration for counsel. She allowed fees of £250,000 for Mr Pownall and £164,454.50 for Mr Marklew.

37. In her written reasons, the Determining Officer explained that she had considered the amount of preparation claimed in the work logs provided by counsel and submissions made by the Appellant in support of the fees claimed. She had considered this the standing and experience of counsel, the hours of work done, the amount and type of papers to be considered, the time frame within which all this work had to be done, and all other relevant factors.

38. Louise Worsell had been Legally Aided. Her counsel had been paid under an Interim Fixed Fee Offer (“IFFO”). That is an arrangement through which self-employed advocates in Very High Cost Criminal Cases (“VHCCs”) where the trial is estimated at more than 60 days, receive a pre-agreed, fixed fee based mainly on the volume of case material (both evidence and disclosure), case category and trial length.

39. Under the IFFO contract, in respect of which negotiations started 16 months before trial, Ms Worsell’s KC, Mr Rudolf, received £438,800 and his two juniors £438,400 between them. These fees as the Determining Officer, were based upon the premise that 4,596 hours of preparation would be required.

40. The Determining Officer concluded that the work completed by the Counsel for Ms Worsell and that completed for the Appellant was different. Ms Worsell was charged with all eight offences on the indictment. Whilst the Appellant was charged with the two overarching offences, counsel for Ms Worsell still had to prepare for all eight counts.

41. The main difference, in the Determining Officer’s view, was however that the IFFO for Ms Worsell was calculated on the basis that Counsel was instructed and working on the case for over 16 months. Counsel for the Appellant was instructed to act only 50 days before trial and Mr Pownall actually worked on 47 days before the trial. The Determining Officer concluded that there was no possibility that counsel could complete the same volume of work as was completed by Ms Worsell’s counsel over 16 months.

42. The Determining Officer also calculated the Graduated Fee that would be payable to both trial counsel under the Criminal Legal Aid (Remuneration) Regulations 2013. She calculated those fees (excluding VAT) at £126,788 for Mr Pownall and £63,438 for Mr Marklew. This did not, she concluded, represent reasonable remuneration.

43. The Determining Officer then considered the fees that would be payable had the Appellant been in receipt of legal aid for a VHCC Category 2 case. She had allowed Mr Power and Mr Brodie KC VHCC Category 2 hourly preparation rates of £51.10 and £79.10 respectively. She did the same for Mr Pownall and Mr Marklew, adding a 50% uplift to the hourly rate, which produced, she said, £185,990 for Mr Pownall and £98,815.50 for Mr Marklew. Again, this was not considered by her to represent adequate remuneration. The Determining Officer allowed Mr Pownall 252 hours’ trial and weekend preparation at £374 per hour (which she contrasted with an hourly rate of £79 per hour allowed to Mr Rudolf) in addition to the same refresher fee as Mr Rudolf, which was £1,750 per day over 89 days of trial.

44. Mr Marklew completed 402.5 hours of preparation pre-trial and during weekends and bank holidays. Adding that preparation time, at £187 per hour (half of Mr Pownall’s hourly rate), to £125,000 (50% of Mr Pownall’s fee) increased Mr Marklew’s total allowance to £164,267.50, with one additional hour’s preparation for co-counsel, Ms Collins (presumably standing in for Marklew), bringing the total payable to £164,45.45.

45. In conclusion, the Determining Officer observed that she had accepted that this was not a usual “run of the mill fraud case” and referred to the judgment of Pennycuick J in Simpson’s Motor Sales (London) Ltd v Hendon Corporation [1965] 1 WLR 112 : “One must envisage a hypothetical counsel capable of conducting the particular case effectively but unable to or unwilling to insist on the particularly high fee sometimes demanded by counsel of pre-eminent reputation. One must then estimate what fee this hypothetical character would be content to take on the brief… There is, in the nature of things, no precise standard of measurement …”

46. Having, as required by Regulation 7(2) of the 1986 Regulations, taken into account all of the relevant circumstances of the case including the nature, importance, complexity and difficulty of the work and the time involved. The Determining Officer accepted that this case was of the utmost importance to the Appellant and that it was appropriate for counsel of Mr Pownall’s standing to be instructed, along with junior counsel, but remained of the view that the fees allowed provided remuneration reasonably sufficient to compensate the Appellant for costs actually and reasonably incurred. Submissions on Counsel’s Fees

47. Ms Weisman, for the Lord Chancellor, submits that the Determining Officer made her assessment on the basis that the starting point for assessing costs payable under a DCO was to limit any assessment to likely costs incurred for a legally aided defendant, calculated through applying the rates set out in the published rates and scales. She recognised that those same provisions allowed the stipulated maxima to be exceeded should the circumstances justify it, and she accepted that such circumstances existed here. Nevertheless, it remained relevant to consider what might have been allowed had legal aid been granted, and given that legal aid had been granted to a co-defendant in the same case, and that case had been classified as a VHCC she made reference to the fees which might have been paid for this category of VHCC as a useful comparator.

48. Ms Weisman submits that the Determining Officer’s conclusions, and the sums already paid, are reasonable and proportionate. The simple fact that fees were agreed with counsel and paid accordingly, does not of itself render the amount in question reasonable. The case of Simpsons Motor Sales was rightly referenced by the Determining Officer as setting out one of the key principles in these matters, namely that while there may be no “precise measurement” for fees payable in these circumstances, the hypothetical counsel posited would be capable for the case in hand, but not necessarily conducting the case and charging fees at a premium.

49. This principle has been significantly refined by the statutory provisions (introduced in 2012) for payment at the published rates and scales. This makes it explicit that even where some form of increase or enhancement against stipulated rates is appropriate, nevertheless legal aid rates must still be borne in mind to some extent. The provision at paragraph 5.1 that “reasonable remuneration” is to be interpreted as if the assessment were carried out in accordance with criminal legal aid remuneration regulations makes this clear – even if no rates exist within those regulations that would be appropriate, some appropriate comparator for reasonable public funding is needed.

50. With this in mind, the Respondent contends that the Determining Officer was right to assess the need for an increase in this case, but that the regulatory framework obliged her to favour possible legal aid rates as opposed to private market rates. R v Goldsmith (SCCO Ref: 79/18, 14 January 2019, Judge Gordon-Saker) specifically recognises VHCC costs as an appropriate comparator, whilst R v Perkins makes clear the essential point of the reference to the “Criminal Legal Aid Regulations” is that reasonable remuneration must be judged by reference to publicly funded cases, not privately funded cases. The rates payable for publicly funded work are lower.

51. It follows, says Ms Weisman, that even were trial counsel’s fees in this matter taken to be a reasonable representation of the market rate, and a liability actually incurred, this alone would not justify reimbursement of those costs from Central Funds. The Respondent accepts that the fees charged here are dwarfed by those which would likely have been charged on a private basis by counsel originally instructed, but submits that this is of little assistance as a comparator here.

52. Mr Henry, for the Appellant, has made extensive submissions, both in writing and orally. I will focus however on what seem to me to be his most pertinent submissions, which offer three ways of arriving at a reasonable fee in excess of the £300,000 fixed fee agreed for Mr Pownall and £180,000 agreed for Mr Marklew.

53. The first is to consider counsel’s fees as reasonable because they are so substantially below the fees allowed under the IFFO for Mr Rudolf and his juniors. An IFFO in the same case, he submits, must be the optimum comparator. The difficulty with IFFOs is that they are fixed fees negotiated on a case by case basis. Nevertheless, there are underlying assumptions in calculating such fees which assist with calculating a possible fee for a comparable case. In fact the Appellant’s case was more complex than Ms Worsell’s. Her position was that she had not been personally dishonest, and there were not many questions to put to her. During trial he became the lead defendant and some the burden of addressing the financial evidence, given he was the finance director, fell upon him. One must also consider the exceptional despatch required of counsel in the limited time available for preparation.

54. His second method is simply to apply the Determining Officer’s daily refresher rate (albeit disputed) of £1,750. To achieve a fee of £300,000 at that rate, leading counsel would need to work for 171 days at £1,750. The days allowed by the determining officer were 89 trial days and preparation on 82 further days noted on Mr Pownall’s work log (42 pre-trial days and 35 weekends and bank holidays during the trial). This comes out at just under £300,000.

55. Mr Henry’s third method is to apply the £374 hourly rate allowed by Determining Officer of £374 as a reasonable hourly preparation rate. The refresher rate should, he submits, be based on that hourly rate multiplied by a minimum of 7 hours of counsel’s time. Counsel on this case regularly spent from 9am to 6pm at court, but utilising 7 hours as a standard “working day” this produces a refresher of £2,618 per day. 89 refreshers would come to £233,002. One can add to that the preparation time allowed by the Determining Officer of 252 hours, an additional £94,248. Conclusions on Counsel’s Fees

56. Defendants’ costs orders do not normally compensate a Defendant for more than a fraction of their actual expenditure. Mr Henry assures me (and I accept) that such will be the case here whatever the outcome of this appeal. The law, however, must be applied as it stands. It is not open to a Costs Judge or a Determining Officer to depart from the statutory provisions.

57. I emphasise that because my conclusions are not intended to reflect upon Mr Pownall’s and Mr Marklew’s undoubted achievement in securing an acquittal for their client under the pressure of an exceptional workload, nor on the good sense of Jonas Roy Bloom in negotiating fixed fees that must appear, in hindsight and on a privately paying basis, to have been very reasonable. They are based only upon the application of the relevant regulations, and in particular the fact that reasonable remuneration is measured by reference to Legal Aid rates of payment.

58. The term “the Criminal Legal Aid Regulations,” as employed at paragraph 5.1of the published rates and scales, is not defined. It is however used elsewhere in that document to describe the Criminal Legal Aid (Remuneration) Regulations 2013, and to my mind (as I concluded in Perkins ) that must be what it means.

59. Two particular points have troubled me in the course of preparing this judgment. The first is that the 2013 Regulations (in accordance with regulation 3(8), and excluding some provisions for litigators which have no bearing on this appeal) expressly do not apply to VHCCs except in relation to the reporting requirements and prescribed rates set out at regulations 12, 12A and Schedule 6. There must, accordingly, be at least a respectable case to the effect that an IFFO cannot be a valid comparator when calculating reasonable remuneration by reference to the 2013 Regulations.

60. Further (and I appreciate that this goes beyond my conclusions in Perkins ) it must also be arguable that that one must, in identifying “reasonable remuneration” for counsel under paragraph 5.1 of the published rates and scales, look only to the provisions of the 2013 Regulations (including the extent to which they do apply to VHCCs) and that one can only depart from the fees prescribed by the 2013 Regulations to the extent that those provisions themselves allow for that. As I noted in Perkins , the circumstances in which one can do so are limited, and none of them seem to apply here.

61. That is not however the way in which the Lord Chancellor’s case is put. As I understand it, the Lord Chancellor’s case is (consistently with Perkins ) only that one must, in assessing the amount due under a defendant’s costs order, have regard to Legal Aid rates rather than open market rates. I can, accordingly, put those two points aside for present purposes.

62. It remains the case, nonetheless, that I must bear in mind that “reasonable remuneration” is set by reference to Legal Aid rates. It follows that Mr Henry’s references to the rates allowed, for example, in Evans & Others v The SFO [2015] EWHC 1525 (QB) , which were subject to no such constraint, are not really to the point. Even Simpsons Motor Sales seems to me to be of little assistance in quantifying fees that are not set by reference to a market rate.

63. Nor, I am afraid, do I find Mr Henry’s other submissions to be persuasive, thorough and carefully formulated though they are. With regard to his comparison with Mr Rudolf’s fees, even assuming that Mr Rudolf’s IFFO can to any extent offer a valid comparator it is not evident to me that it gives me a sound basis for increasing the Determining Officer’s allowance for counsel’s fees. Mr Henry is not comparing like with like.

64. Ms Weisman makes the point that Mr Rudolf and his team were instructed much earlier than Mr Pownall, and would have been instructed throughout a long and complex case on all counts of the indictment. Whilst late instruction brings with it its own pressures and challenges it remains a reasonable assumption that, by July 2022 instructions would have been taken, issues clarified and crystallised, and key disclosure or pre-trial disputes worked through and settled. Significantly lower fees for the Appellant’s counsel than those allowed to Mr Rudolf would, on that basis, be unsurprising.

65. Nor I find Mr Henry’s calculation of 171 days at £1,750 to be appropriate. Refresher fees are paid for appearances at court, not for preparation work. Even as a refresher fee the £1,750 allowed by the Determining Officer is high by reference to Legal Aid rates. Nor does Mr Pownall’s worksheet record a full day’s work for any part of the pre-trial period. For non-sitting days during the trial period most of the entries are, similarly, for part of a day.

66. The difficulty with Mr Henry’s calculation of a brief fee by reference to the Determining Officer’s preparation rate of £352 per hour is that it produces a refresher rate far in excess of what would be allowed on Legal Aid.

67. Mr Henry argues that the Determining Officer’s reasoning is unclear and her calculation is flawed. He points, for example, to the contrast between the hourly preparation rate of £79.10 apparently allowed to Mr Rudolf and his daily refresher of £1,750, which, he says, suggests a 22-hour day. Similarly he says that he is unable to understand the Determining Officer’s reference to 252 hours’ preparation on the part of Mr Pownall, whose worksheet shows 152.5 hours’ preparation pre-trial and 193.5 hours’ preparation during the trial: a total of 346 hours.

68. I do not accept that these criticisms are justified. I am unaware of any reason to suppose that Mr Rudolf’s refresher fees were calculated as a multiple of his preparation rate. If, as appears to be the case, Mr Rudolf’s fees included refreshers of £1,750 I do not think it likely that on a Legal aid basis Mr Pownall would have been paid more.

69. Nor did the Determining Officer miscalculate Mr Pownall’s preparation time. The 252 hours allowed at £374 per hour, as the Determining officer explained, represented Mr Pownall’s preparation time pre-trial and at weekends (Mr Pownall’s worksheet does not appear to record any preparation time on public holidays). Otherwise, she evidently took the view that Mr Pownall’s refresher fees constituted reasonable remuneration for weekday work.

70. I do not know exactly how the Determining Officer identified as appropriate an hourly preparation rate so far in excess of the £79.10 allowed to Mr Rudolf (which would appear to be the rate prescribed by Part 3 of Schedule 6 to the 2013 Regulations for leading counsel in a Category 2 VHCC), but £374 per hour is undoubtedly high by reference to legal aid rates.

71. The Determining Officer did not expressly address preparation work undertaken by Mr Pownall on weekdays over the trial period when the Court was not sitting. As far as I can work out, his schedule expressly records 86 days in court and 60 hours’ work on weekdays when the Court was not sitting (for example, over the Christmas and New Year period).

72. The Determining Officer allowed 89 refreshers, which would compensate for the three busiest non-sitting weekdays on Mr Pownall’s worksheet. This leaves 42 hours of preparation work and non-sitting days during the trial period.

73. I considered whether it would be right to add to the Determining Officer’s allowance another 42 hours’ work at £374 per hour, and I came to the conclusion that I should not. I do not believe that the exercise conducted by the Determining Officer was meant to be quite so precise. The combination of refreshers and an hourly rate of £374 for weekend and pre-trial work was intended to be sufficient to cover all the work done by Mr Pownall. By reference to Legal Aid rates, that seems to me to be right.

74. In short, whilst the Determining Officer’s methodology in calculating counsel’s fees may have been inexact, it was pragmatic and sensible. Even taking into account the exceptional features of this case, it led to a reasonable outcome. I find no reason to conclude that the total figure allowed by her did not represent reasonable remuneration at Legal Aid Rates.

75. For those reasons, this part of the appeal must be dismissed. The Costs of the Appeal

76. Because this appeal has succeeded only to a very limited extent, and not on the exact grounds advanced by the Appellant, I do not find it appropriate to award to the Appellant any costs beyond the £100 fee paid for the appeal.