The page unwritten

Criminal costs cases are always interesting. In the case of The Lord Chancellor v Lam & Meerbux Solicitors [2023] EWHC 1186 (KB) a point arose, that at first blush, seems an exercise in the “bleeding obvious”: namely whether a solicitor should be paid for “reading” blank pages disclosed as part of the evidence in a case? However as the way in which a solicitor’s remuneration is calculated in criminal cases is not straightforward and rarely obvious, a very interesting analysis of the statutory provisions governing how such remuneration is calculated had to be undertaken.

The facts may be briefly stated. The solicitors had represented a client in proceedings in the Woolwich Crown Court where he had faced charges of money laundering arising out of a drugs investigation. The solicitors were entitled to be paid their remuneration under the graduated fee scheme contained in the Legal Aid (Remuneration) Regulations 2013. As the High Court judge Mr Justice Cotter noted in his judgment:

7. In essence fees are determined by reference to a formula which takes into account, amongst other things, the number of PPE and the length of the trial. The scheme is intended to be administratively simple, and to avoid (for the most part) the need for a determining officer to consider the extent of the work actually done by solicitors and/or counsel in a particular case. It has often been stated that it is designed to operate in a “mechanistic” fashion.

PPE means pages of prosecution evidence. It is not necessarily the same as the formal page count int he Crown Court Digital Case system (known as DCS). The court further noted:

8. The DCS has the facility to produce a page count in respect of a document which the Legal Aid Agency uses for the purposes of a report as to the extent of the evidence uploaded which can then be used to calculate the pages of PPE.

The prosecution served its evidence in tranches:

10. The prosecution appears to have served additional evidence in various tranches each under a separate notice of further evidence (“NFE”). This was uploaded to the DCS in the usual way. NFE 7 was uploaded to section J (G), NFE 8 was uploaded to section J (H) and NFE 10 was uploaded to section J (j). These documents contained data in relation to telephone handset reports. Neither Mr Orde nor Mr Holborn could confirm if the spreadsheets themselves had been served/made available to the Defence representatives. Somewhat unusually what was uploaded to the DCS was a PDF version of a “print preview” of the spreadsheets. The print preview produced large quantities of blank pages, pages containing the Excel grid but no information, or just snippets of data which in isolation are, in reality, meaningless. As I indicated during the hearing it is highly unlikely that the Defence representatives used the print preview PDF at any stage. Indeed the only purpose of creating this document which was suggested to me was that it provided a number of pages for the purposes of the report of the Legal Aid Agency (“LAA”).

The determining officer applied a discretion when considering what was the appropriate PPE:

13. The determining officer provided written reasons. Within those reasons it was stated that

“…When making an assessment of the amount of electronically served material to be included within the PPE the determining officer is exercising discretion under regulation 1(5).”


“The difficulty in this case is that the Excel spreadsheets…Have been saved as PDF in the print preview state to allow them to be uploaded to the DCS. This is not the same as being presented in the PDF format in the usual way and only serves to remove the functionality of Excel and renders the spreadsheet unworkable. This inevitably creates a significant amount of blank pages and space between the data which artificially increases the page count.

The determining officer does not accept that the litigator would have considered the data in this state and would likely have used the functionality that Excel offers such as being able to use the quick search etc. As such the determining officer believes the above allowance to be a reasonable representation of how many pages actually encompass the amount for data within the spreadsheet, taking into account the vast quantity of blank pages/space and the sporadic data littered throughout.

…However the relevant question is not whether PDF or Excel is the best format in which to work. The question is whether PDF or Excel gives the most realistic and representative page count for the download data which is identical in both formats save for some minor presentational differences.

I do not consider the method in which the information is manipulated and the method by which the litigator is to be remunerated (do not) have to be based on the same format document. Fundamentally, the extent of the data is the same in whichever format it is presented. It is incontrovertible the nearest equivalent to a paper document is the PDF and it should be the one which is used for the purposes of PPE. The disparity in page count simply demonstrates the unsatisfactory nature of using Excel spreadsheet print preview as a method of determining the page count. In that context an important factor to take into account the calculation of fees by reference to a PPE count dates from the time when all evidence was served on paper, and that the 2013 regulations, like their predecessors, are designed to make similar provision for documents served electronically. The PDF format is designed to mimic presentation on paper. Excel is not, and can offer different page counts depending upon the way in which the information in that format is managed, used or presented. 50 pages on legible data on paper will, if reproduced in PDF format, remain 50 pages of legible data with much the same appearance. In Excel format, depending on how the same
data is managed or presented, the page count could run into hundreds.

There is no precise way to quantify an Excel document by reference to a page. Pages generated by the use of the print preview function will oftentimes split multiple rows of data over several hundred nonsequential pages. The material is placed into print preview will bear no resemblance to what the user will have seen on the screen and will often contain pages with little or no data on them.

As set out in paragraph 11 of R-v-Jalibaghodelehzi [2014] 4 Costs LR 781 (cited with approval by Holroyde J in Lord Chancellor-v-SVS Solicitors [2017] EWHC 1045, the intention of the 2013 regulations is that material should be included within the PPE work requires a similar degree of consideration to
evidence served in paper. By implication the format used to quantify the PPE should also be that which most closely approximates a page of paper evidence.”

The key provision of the Regulations was paragraph 1(5) of Schedule 2:

(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.”

The High Court judge found:

50. An attempt can also be made to derive a page count from the spreadsheet version by bringing up a print preview. That will display the number of A4 pages which would result if the spreadsheet were to be printed. The relevant document uploaded in this case was a PDF of the print preview. As the determining officer noted this document was neither the spreadsheet nor the usual PDF.

51. The process of creating the PDF of the print preview results in blank pages and data being split across many pages, with some pages containing limited/isolated pieces of information. The determining officer concluded, and this has not been challenged at any stage, that the litigator would not have considered the document in this state. So he was faced, in effect, with an artificial document, which had produced a page count which, by virtue of the conversion process, failed to accurately reflect the content the
spreadsheet which required consideration.

52. The question as to whether electronic pages should be included within the PPE in a particular case requires a judgment, an exercise of discretion, in each case.

53. The Regulations contain differing approaches to paper-based and electronic evidence. The former is automatically paid as PPE on service whereas the latter only forms part of the PPE if the determining officer considers it appropriate i.e. the default position is that it is not counted as part of the evidence in respect of which remuneration is given.

54. If the intention was that electronic evidence was to be treated exactly the same as paper evidence there would have been no such distinction drawn and no discretion provided in relation to it, a fortiori that the overall aim was to produce a largely mechanistic process. However the rationale for separate consideration is obvious when one considers the nature of some forms of electronic evidence particularly in relation to mobile phones, which have never existed in paper form. A very large proportion of the data presented in an electronic format will be irrelevant given the limited issues in a criminal trial. Also it can often be searched to allow reference to material aspects and the whole mass of data does not need to be considered.

55. An assessment of the electronic material is undertaken by the determining officer as to whether it is appropriate to “count it in”. This was described by Holroyde J as an important and valuable control mechanism to ensure that public funds are not expended inappropriately. As I have set out it is my view that includes significant overpayment for work obviously not undertaken.

56. The LAA report will set out a number of pages of electronic material uploaded onto the DCS system. However that is a starting point and no more. Were it otherwise, and that figure to be regarded as a blanket allowance, it would neuter an express statutory provision requiring an considered assessment and effectively treat such material as paper evidence.

57. I accept Mr Holborn’s submission that the presence of blank pages within a document could potentially be relevant to the nature of the document and/or the relevant circumstances given that;

(a) A substantial amount of blank pages may arise as a result of formatting, and

(b) Such pages do not contain any relevant evidence which required consideration.

However I do not accept that a determining officer (or Costs Judge) must adopt the rigid two staged approach he suggests is mandated by paragraph 1(5). Rather the discretion is a broad one, reflecting the varied nature of electronic evidence, and there is nothing to prevent the approach taken by the determining officer in this case. 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. The fact that either would result from taking a particular figure for pages is an obviously relevant circumstance which not only could, but should, be taken into account.

He concluded:

67. Firstly, remuneration for detailed consideration of pages which could require no consideration is axiomatically overpayment. However, in any broadbrush assessment proportionality may play a part and in an appropriate case, a determining officer or Costs Judge may take the view that the assessment of the number of blank pages is not worth the candle. The odd blank page within a large body of electronic material is unlikely to be identified as a matter requiring to be addressed.

68. Secondly, whilst it may be desirable for the CPS to remove blank pages in documents to be uploaded, in some cases this may often be a disproportionate task for a public body. Given that the information is electronic it is also difficult to see the mischief. The reality is that any blank pages will simply be ignored. The picture may be different if the information is duplicated, as this may not immediately obvious; resulting in timing spent considering the content. The effect of Master Whalan’s approach would be to place the burden on the CPS to undertake an audit in each case, in respect of any document which is to be uploaded “if they consider it reasonable and proportionate to do so” to identify blank pages in the knowledge that a failure to do so will axiomatically result in overpayment out of public funds. I cannot accept this analysis is correct. The limitations of the public funding of, and consequentially effects upon the resources within, the criminal justice system are well known. I cannot accept that it is right that the burden solely lies upon the CPS to avoid a solicitor being paid for the (detailed) consideration of blank pages. However I do question the approach of solely uploading a print preview of a spreadsheet. The conversion makes it is an unusable document and an unreliable guide to the extent of the data within the spreadsheet. It appears to me that it is highly likely to result in a significantly inflated page count. Given that the concern is the appropriate use of public finances the CPS should evaluate the issue and consider
some national guidance.

It might be viewed that after a gentle survey of numerous decisions contained and referenced in the judgment, the court returned full circle to whence it had begun, and concluded that the words in the regulation meant what they said.

But there is more in this judgment: it emphasises the width of the discretion which a determining officer has, albeit that the discretion must be exercised rationally, for a proper purpose, and taking into account all material factors, and leaving out of account all immaterial ones.

It is also interesting to note that the court was alert to certain working practices of the CPS, which were antithetical to the efficient disbursement of public funds: and the remedy is that the so-called mechanistic approach to calculation of fees in schedule 2, is not so mechanical at all.

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