R v Jetmir Topuzi

Senior Costs Judge Rowley:

1. This is an appeal by Tim Banks of counsel against the decision of the determining officer to assess his fees in the sum of £400 plus VAT under the Criminal Legal Aid (Remuneration) Regulations 2013, as amended.

2. Counsel was instructed on behalf of Mr Jetmir Topuzi who faced a charge of rape and who counsel represented at the trial, where Mr Topuzi was found guilty. Counsel advised on, and drafted grounds for, an appeal. Permission to appeal was originally refused, but it would appear that it was subsequently granted and that the appeal was dismissed. The later work was conducted by different counsel who Mr Banks understands was privately instructed.

3. Mr Banks submitted a fee for the drafting of the advice and grounds of appeal based on 13 ½ hours of preparation time. The fee claimed was £1,250 plus VAT. According to his work log, Mr Banks spent the time claimed as follows: “Preparation – nine hours spread over the 13 th and 14 th September 2024. The offence was a serious one, and the sentencing exercise, far from straightforward. A significant amount of time spent on researching a number of authorities – referred to in the advice. Further, time spent checking trial papers and my notes of the sentence hearing. 4.5 hours spent in drafting the advice. Numerous issues had to be addressed. This was a case in which the defence and prosecution were at polar opposite ends of the sentencing bracket. Careful thought was required in the way the advice had to be structured.”

4. The determining officer originally allowed £350 plus VAT for this work. Upon reconsideration, he added a further £50. In his written reasons, the determining officer referred to the need for him to have regard to all relevant facts, as set out in the Taxing Officer’s Notes for Guidance. He then made specific comments in the following passages: “The grounds of appeal essentially argue that the sentencing judge’s conclusions regarding culpability and harm were wrong or not justifiable, so that the starting point assessment, and then the overall sentence were excessive. There is only one offence concerned in this matter and counsel’s claim for 13 ½ hours spent in the preparation and drafting of the Advice and Grounds of Appeal was considered as far too high for counsel who acted throughout the proceedings in the court below and who therefore was very familiar with the facts and issues in this appeal. … The 10 page advice and grounds document in this matter was drafted less than 3 weeks after sentence by counsel well familiar with the relevant facts and issues on appeal, having acted below as mentioned above. The sole ground of appeal was that the sentencing judge erred in determining the level of harm and culpability based on: (1) The victim suffered severe psychological harm. (2) The victim suffered additional degradation/humiliation. (3) There was significant planning on part of the applicant. (4) That the applicant took the lead in previous account encounters and communication. (5) There were two incidents of penetration. Two of the 10 pages drafted consisted of the facts of the offences taken from the prosecution case summary or opening note. A further two pages consisted of extracts of “sexual communications” between the applicant and the victim. The document as drafted was also double line spaced and as such the content was effectively about 4 pages of written work. In the circumstances, I remain satisfied that a total of £400 before VAT already paid in this matter…provides reasonable remuneration for the preparation and drafting of the Advice and Grounds of Appeal and reflects the level of responsibility upon counsel in all the circumstances of this matter.”

5. Mr Banks appeared on his appeal hearing and was clearly under the impression that the determining officer had taken the view that counsel had not actually spent the 13 ½ hours claimed in producing the advice and grounds of appeal. I confirmed to Mr Banks that this was not my view of the determining officer’s written reasons and nor did I doubt that he had spent the time that he claimed.

6. The reduction in the sum claimed represented by the allowance of the determining officer was, in my view, a result of the determining officer’s opinion that, when compared with other claims for fees for producing similar documents, the amount of time and therefore the sum claimed was rather higher than the determining officer would have expected.

7. Mr Banks told me that he had spent a lot of time researching the law when producing this document and spent the entire weekend producing it. He did not regard the case as being at all straightforward and he did not consider the sentencing note he had previously drafted had much relevance when preparing the advice and grounds of appeal. The sentencing note had far fewer authorities and the advice and grounds of appeal was, in Mr Banks’ words, a completely different document from the sentencing note.

8. In response to my question as to how the fee had been calculated, Mr Banks indicated that it had been produced by his clerks. It was not a fixed fee, but there was no obvious explanation of any hourly rate that would fit the time spent in the fee claimed.

9. The determining officer’s task is not simply to decide on the amount of time that is reasonable and multiply that by an hourly rate in order to reach the fee to be paid. The determining officer’s task is to assess a figure that provides “reasonable remuneration”. That is plainly a broader concept than an arithmetical multiplication but it is not necessarily easy to determine, on appeal, why, for example, £400 rather than £350 provides reasonable remuneration.

10. In his written reasons, the determining officer has accurately described the contents of the advice and grounds of appeal before concluding that he should remain with the £400 that he allowed on the redetermination. This does not provide any substantial clue as to how that figure has been reached, save that is description of the contents of the advice and grounds of appeal is clearly predicated on the basis that it does not support the full sum claimed by counsel.

11. I agree with the determining officer that the document on assessment does not, on the face of it, support the amount of time spent and therefore the fee claimed. Mr Banks told me that he found the production of the advice to be difficult and the impression that I gained from his submissions and from reading the advice is that the time was spent seeking to improve the merits of the appeal, but that ultimately there was only so much that could be said in Mr Topuzi’s favour. In a different context, a party may spend a long time considering the documents that it has to disclose to its opponent as part of the disclosure phase in civil litigation, and yet find that in fact there are very few relevant documents which are then set out in the list of documents. The ultimate document may not bear any direct relationship to the amount of time spent in the work required to produce it.

12. This may explain the length of time spent by counsel in drafting the advice and grounds of appeal, but ultimately, I do not think that it can support the full claim made by counsel. Otherwise, there may be little to prevent an over-eager advocate in another case from pursuing all manner of potential avenues and producing a fee note to reflect those endeavours. In my judgment, the determining officer’s allowance does not allow sufficient for the work carried out and I therefore substitute the figure of £650 which I consider to represent reasonable remuneration and which is broadly based on a day’s work in terms of the time and effort to be remunerated.

13. To this extent, therefore, the appeal has been successful. It is only a limited extent and in those circumstances I think it appropriate for counsel to claim the appeal fee but nothing further in terms of the costs of the appeal.