This Order may be cited as the Criminal Defence Service (Funding) Order 2001 and shall come into force on 2nd April 2001.

In this Order:

“the Act” means the Access to Justice Act 1999;

“advocate” means a barrister, or a solicitor who has obtained a higher courts advocacy qualification in accordance with regulations and rules of conduct of the Law Society;

“appropriate category”, in relation to a Very High Cost Case, means the category to which the case is assigned in accordance with article 14;

“appropriate officer” means:

in the case of proceedings in the criminal division of the Court of Appeal, the registrar of criminal appeals (“the registrar”);

in the case of proceedings in the High Court, a Costs Judge;

in the case of proceedings in the Crown Court, an officer appointed by the Lord Chancellor;

in respect of advice or assistance as to an appeal from the Crown Court to the Court of Appeal, (except in the case of an appeal under section 9(11) of the Criminal Justice Act 1987) where, on the advice of any representative assigned, notice of appeal is given, or application for leave to appeal is made, whether or not such appeal is later abandoned, the registrar;

in respect of advice or assistance as to an appeal to the Courts-Martial Appeal Court, the registrar;

in respect of advice or assistance as to an appeal from the Court of Appeal to the House of Lords, where the appeal is not lodged with the House of Lords, the registrar; and

in any other case, the Commission

and, in any case, includes an officer designated by the appropriate officer to act on his behalf in that regard;

“CDS Regulations” means regulations made under Part I of the Act relating to the Criminal Defence Service;

“the Commission” means the Legal Services Commission established under section 1 of the Act;

“the Contract” means the General Criminal Contract, published by the Commission in February 2001;

“Costs Committee” means a committee appointed under arrangements made by the Commission to deal with, inter alia, applications for appeal against, or review of, assessments of costs;

“funded services” means services which are provided directly for a client and funded for that client as part of the Criminal Defence Service under sections 12 to 18 of the Act;

“a representation order” means a document granting a right to representation;

“a representative” means a solicitor or a barrister;

“VAT” means Value Added Tax; and

“a Very High Cost Case” is a case with regard to which:

(a)    if the case proceeds to trial, that trial would be likely to last for 25 days or longer; or

(b)    the defence costs with regard to any one defendant (or group of defendants represented by the same firm of solicitors) are likely to amount to £150,000 or greater (such sum to include the solicitor's fees and disbursements, counsel's fees, and VAT)

and any question as to whether a case fulfils the criteria in (a) or (b) above shall be decided by an officer appointed by the Lord Chancellor in a case which falls within article 6, and by the Commission in a case which falls within article 9.

(1)    Except as provided in paragraph (2), the duty of the Commission under section 14(1) of the Act shall, until 4th April 2005, have effect as a duty of the Lord Chancellor in relation to representation in:

(a)    criminal proceedings in the House of Lords;

(b)    proceedings in the criminal division of the Court of Appeal; and

(c)    proceedings in the Crown Court.

(2)    Paragraph (1) does not apply to:

(a)    any proceedings in the Crown Court which are prescribed under section 12(2)(g) of the Act;

(b)    any Very High Cost Case which is the subject of an individual contract for the provision of funded services; or

(c)    any proceedings in which representation is provided by a person employed by the Commission for that purpose.

Other than where the case is remitted back to the magistrates' court, where a case is sent for trial to the Crown Court under section 51 of the Crime and Disorder Act 1998, any fees in relation to work carried out in the magistrates' court shall be assessed and paid together with the Crown Court fees for that case.

Remuneration in respect of the proceedings mentioned in article 3(1) shall be in accordance with the provisions of Schedules 1 to 4.

Where representation is funded by the Lord Chancellor in a Very High Cost Case, remuneration shall be at rates no higher than those set out for the appropriate category and the appropriate level of fee earner in Schedule 5.

The Commission may only fund services as part of the Criminal Defence Service under section 13(2)(b) or 14(2)(b) of the Act where representation is provided in proceedings referred to in section 12(2)(f) of the Act (proceedings for contempt in the face of a court).

Except as provided in article 9, where the Commission funds services as part of the Criminal Defence Service under section 13(2)(a) or 14(2)(a) of the Act, remuneration shall be at rates no higher than those set out in Part E of the Specification to the Contract.

Where services are provided in a Very High Cost Case which is the subject of an individual contract for the provision of funded services, remuneration for that case shall be at rates no higher than those set out for the appropriate category.

(1)    Subject to article 11, remuneration in proceedings referred to in section 12(2)(f) of the Act shall be at the rate of £72.75 per day.

(2)    Where representation in such proceedings is provided by two legal representatives, remuneration shall be at the rate of £46.50 per day for the representative appearing as an advocate, and £26.25 per day for the other representative.

(1)    A representative may, when he claims remuneration for work done in respect of proceedings referred to in section 12(2)(f) of the Act, claim that there are exceptional circumstances which justify remuneration greater than the standard fee specified in article 10.

(2)    If the appropriate officer decides that there are such exceptional circumstances, he may allow the representative such fee as appears to him to be reasonable (having regard to the standard fee) for such work as appears to him to have been reasonably done.

(3)    If the appropriate officer decides that there are no such exceptional circumstances, the standard fee shall apply.

(4)    The fee allowed to a representative (other than an advocate) under this article shall not exceed the rates set out in Schedule 2 as appropriate to the type of work, the court in which the proceedings took place, the grade and the situation of the office of the fee-earner who did the work.

(5)    In the application of paragraph (4), the rates appropriate to the Crown Court shall apply to proceedings in all courts other than the magistrates' courts

(6)    Where a court grants representation to a person for the purposes of proceedings for contempt, it may assign to him, for the purposes of those proceedings, any representative who is within the precincts of the court.

(7)    Where the fee-earner who did the work was not assigned by the court under sub-paragraph (6), the fee allowed for his work shall not exceed the rate set out in Schedule 2 as appropriate to the lowest grade of fee-earner which the appropriate officer considers would have been competent to do the work.

(8)    The total of the fees allowed to an advocate under this article in respect of proceedings covered by any one representation order shall not exceed the amounts set out in Schedule 3 as appropriate to a single junior counsel instructed in an appeal to the Crown Court against conviction.

The provisions of Schedule 1 shall apply with the necessary modifications to the remuneration payable to any representative under articles 10 and 11.

Where a representation order has been made in respect of any proceedings, the representative shall not receive or be a party to the making of any payment for work done in connection with those proceedings except such payments as may be made:

(a)    by the Lord Chancellor or the Commission; or

(b)    in respect of any expenses or fees incurred in:

(i)    preparing, obtaining or considering any report, opinion or further evidence, whether provided by an expert witness or otherwise; or

(ii)    obtaining any transcripts or recordings

where an application under CDS Regulations for an authority to incur such fees or expenses has been refused by the Costs Committee.

(1)    The Commission or, as the case may be, the appropriate officer shall assign each case which is a Very High Cost Case to one of the four categories referred to in Schedule 5, according to its complexity, importance and subject matter.

(2)    The Commission or, as the case may be, the appropriate officer shall assign each solicitor or other fee earner (other than a barrister acting as an advocate) providing funded services in relation to a case which is a Very High Cost Case to one of the three levels referred to in Schedule 5.

Irvine of Lairg, C

Dated 8th March 2001

General

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(1)    Costs in respect of work done under a representation order to which this Schedule applies shall be determined by the appropriate officer in accordance with this Schedule.

(2)    In determining costs, the appropriate officer shall, subject to the provisions of this Schedule:

(a)    take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved; and

(b)    allow a reasonable amount in respect of all work actually and reasonably done.

Interim payment of disbursements

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(1)    A solicitor may submit a claim to the appropriate officer for payment of a disbursement for which he has incurred liability in criminal proceedings in the Crown Court in accordance with the provisions of this paragraph.

(2)    A claim for payment may be made where:

(a)    a solicitor has obtained prior authority to incur expenditure of £100 or more under CDS Regulations; and

(b)    he has incurred such a liability.

(3)    Without prejudice to paragraph 13(4), a claim under sub-paragraph (1) shall not exceed the maximum fee authorised under the prior authority.

(4)    A claim for payment under sub-paragraph (1) may be made at any time before the solicitor submits a claim for costs under paragraph 11(2).

(5)    A claim under sub-paragraph (1) shall be submitted to the appropriate officer in such form and manner as he may direct and shall be accompanied by the authority to incur expenditure and any invoices or other documents in support of the claim.

(6)    The appropriate officer shall allow the disbursement subject to the limit in sub-paragraph (3) above if it appears to have been reasonably incurred in accordance with the prior authority.

(7)    Where the appropriate officer allows the disbursement, he shall notify the solicitor and, where the disbursement includes the fees or charges of any person, that person, of the amount payable, and shall authorise payment to the solicitor accordingly.

(8)    Paragraphs 20 to 22 (redetermination etc) shall not apply to a payment under this paragraph.

Interim disbursements and final determination of costs

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(1)    On a final determination of costs, paragraphs 11(2) and (3)(e) and 13 shall apply notwithstanding that a payment has been made under paragraph 2.

(2)    Where the amount found to be due under paragraph 13 in respect of a disbursement is less than the amount paid under paragraph 2 (“the interim disbursement”), the appropriate officer shall deduct the difference from the sum otherwise payable to the solicitor on the determination of costs, and where the amount due under paragraph 13 exceeds the interim disbursement, the appropriate officer shall add the difference to the amount otherwise payable to the solicitor.

Interim payments in cases awaiting determination

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(1)    The appropriate officer shall make an interim payment in respect of a claim for costs in criminal proceedings in the Crown Court in accordance with the following provisions of this paragraph.

(2)    Entitlement to a payment arises in respect of a claim for costs:

(a)    in the case of a solicitor, where the total claim for costs is £4,000 or more (exclusive of VAT);

(b)    in the case of an advocate, where the basic fee claimed is £4,000 or more (exclusive of VAT); and

(c)    where the claim for costs is for less than the amounts mentioned in (a) or (b) but is related to any claim falling under (a) or (b).

(3)    Entitlement to a payment under sub-paragraph (1) shall not arise until three months have elapsed from the earlier of:

(a)    the date on which the bill is ready to tax; or

(b)    three months after the conclusion of the last of any related proceedings

(4)    A bill shall be regarded as being ready to tax on the date on which it is received by the appropriate officer for determination except that where there are related claims for costs all the bills relating thereto shall be regarded as ready to tax on the date the last bill is received.

(5)    A representative may submit a claim for an interim payment under this paragraph if no payment has been made under sub-paragraph (1) and six months have elapsed from the conclusion of the proceedings against the defendant whom he represented under the representation order.

(6)    For the purposes of this paragraph, proceedings are related to each other in the circumstances set out in sub-paragraph (7) and claims for costs are related to each other in the circumstances set out in sub-paragraph (8).

(7)    Proceedings are related to each other:

(a)    where different proceedings involving the same defendant are prepared, heard or dealt with together; or

(b)    where proceedings involving more than one defendant arose out of the same incident, so that the defendants are charged, tried or disposed of together.

(8)    The following claims for costs are related to each other:

(a)    the claims of representatives acting in the same proceedings for a defendant;

(b)    the claims of any representative acting in any proceedings mentioned in sub-paragraph (7)(a); and

(c)    the claims of all the representatives acting for the defendants in the circumstances mentioned in sub-paragraph (7)(b).

(9)    No payment shall be made under this paragraph unless (subject to paragraph 23) the representative has submitted a claim in accordance with the provisions of paragraphs 11(1) and 14(1).

Amount of interim payments in cases awaiting determination

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(1)    Where entitlement to a payment arises under paragraph 4, the amount payable shall be 40 per cent of the total claim for costs, less any sum already paid.

(2)    Paragraphs 20 to 22 (redetermination etc) shall not apply to a payment under this paragraph.

Staged payments in long Crown Court cases

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(1)    A representative may submit a claim to the appropriate officer for a staged payment of his fees in relation to criminal proceedings in the Crown Court.

(2)    Where a claim is submitted in accordance with the provisions of this paragraph, a staged payment shall be allowed where the appropriate officer is satisfied:

(a)    that the claim relates to fees for a period of preparation of 100 hours or more, for which the representative will, subject to final determination of the costs payable, be entitled to be paid in accordance with this Schedule; and

(b)    that the period from committal or transfer for trial (or from the date of the representation order, if later) to the conclusion of the Crown Court proceedings will be likely to exceed 12 months, having regard, amongst other matters, to the number of defendants, the anticipated pleas and the weight and complexity of the case.

(3)    In this paragraph “preparation” means:

(a)    all work falling within the definition of “preparation” in paragraph 1(1) of Schedule 4;

(b)    attendance at pre-trial reviews and other hearings (other than a pleas and directions hearing) prior to the main hearing;

(c)    preparation of applications, statements or notices for the purposes of section 6 or 9(5) of the Criminal Justice Act 1987; and

(d)    all preparation within the meaning of paragraph 12(1)(a) not falling within the preceding sub-paragraphs,

and is limited to preparation done before the trial, except in proceedings in which a preparatory hearing has been ordered under section 8 of the Criminal Justice Act 1987, in which case it is limited to preparation done before the date on which the jury is sworn (or on which it became certain, by reason of pleas of guilty or otherwise, that the matter would not proceed to trial).

(4)    The amount to be allowed for preparation falling within sub-paragraph (3)(a), (b) or (c) shall be computed by reference to the number of hours of preparation which it appears to the appropriate officer, without prejudice to the final determination of the costs payable, has been reasonably done, multiplied by the relevant hourly rate, namely:

(a)    in the case of an advocate who is a Queen's Counsel, the hourly rate for subsidiary fees for Queen's Counsel in the Crown Court prescribed in Table 2 in Schedule 3;

(b)    in the case of an advocate instructed as leading junior counsel pursuant to an order made under CDS Regulations, 75 per cent of the hourly rate for subsidiary fees for Queen's Counsel in the Crown Court prescribed in Table 2 in Schedule 3;

(c)    in the case of any other advocate, the hourly rate for subsidiary fees for junior counsel in the Crown Court prescribed in Table 1 in Schedule 3.

(5)    The amount to be allowed for preparation falling within sub-paragraph (3)(d) shall be computed by reference to the number of hours of preparation which it appears to the appropriate officer, without prejudice to the final determination of the costs payable, has been reasonably done, multiplied by the relevant hourly rate prescribed in Schedule 2 Part 1, applicable to the class of work and the grade and office location of the fee-earner.

(6)    A claim shall be submitted in such form and manner as the appropriate officer may direct, including such case plan as he may require for the purposes of sub-paragraph (2)(a).

(7)    A representative may claim further staged payments in accordance with this paragraph in respect of further periods of preparation exceeding 100 hours which were not included in an earlier claim.

(8)    Paragraphs 20 to 22 (redetermination etc) shall not apply to a payment under this paragraph.

Interim payments for attendance at trial and refreshers

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(1)    A representative may submit a claim to the appropriate officer for an interim payment in respect of attendance at court or refreshers where a Crown Court trial lasts for a qualifying period.

(2)    Where a claim is submitted in accordance with the provisions of this paragraph, an interim payment shall, without prejudice to the final determination of the costs payable, be allowed:

(a)    to a solicitor where he or a fee-earner representing him has attended at court on each day of the qualifying period;

(b)    to an advocate where he has done work falling within paragraph 6(2)(b) or (c) of Schedule 4 on each day of the qualifying period.

(3)    The qualifying period for the purposes of this paragraph shall be 20 days (which need not be continuous), and a day shall qualify as part of that period if the hearing begins at any time on that day.

(4)    The amount payable in respect of each day which qualifies as part of the qualifying period shall be:

(a)    in the case of a solicitor:

(i)    where the hearing begins before and ends after the luncheon adjournment, five times the hourly rate for a trainee or fee-earner of equivalent experience attending court where more than one representative is assigned as prescribed in Schedule 2 Part 1;

(ii)    where the hearing begins and ends before the luncheon adjournment, or begins after the luncheon adjournment, two and a half times the hourly rate referred to in (i) above;

(b)    in the case of an advocate who is a Queen's Counsel, the maximum amount of the full day refresher fee for Queen's Counsel in the Crown Court prescribed in Table 2 in Schedule 3;

(c)    in the case of an advocate instructed as leading junior counsel pursuant to an order made under CDS Regulations, 75 per cent of the maximum amount of the full day refresher fee for Queen's Counsel in the Crown Court prescribed in Table 2 in Schedule 3;

(d)    in the case of an advocate retained solely for the purpose of making a note of any hearing, one-half of the maximum amount of the full day refresher fee for junior counsel in the Crown Court prescribed in Table 1 in Schedule 3;

(e)    in the case of any other advocate, the maximum amount of the full day refresher fee for junior counsel in the Crown Court prescribed in Table 1 in Schedule 3.

(5)    A claim for an interim payment may be made in respect of a qualifying period and shall be submitted in such form and manner as the appropriate officer may direct.

(6)    Further interim payments under this paragraph may be claimed if the trial lasts for further qualifying periods

(7)    A representative who has obtained prior approval under CDS Regulations for the incurring of travelling or accommodation expenses may, at the same time as he submits a claim for an interim payment under this paragraph, submit a claim for an interim payment of all such expenses incurred to date (less any expenses previously recovered by him by way of interim payment under this paragraph).

(8)    A claim under sub-paragraph 7 shall be submitted in such form and manner as the appropriate officer may direct, and shall be supported by such evidence of the expense claimed as he may require.

(9)    Paragraphs 20 to 22 (redetermination etc) shall not apply to a payment under this paragraph.

Advance payments for early preparation in Crown Court cases

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(1)    An advance payment under this paragraph shall be payable in respect of every case in the Crown Court in which:

(a)    a pleas and directions hearing is held;

(b)    on or before the date of the pleas and directions hearing, a representation order has been made providing for an advocate to represent the assisted person at the trial and a person (“the trial advocate”) has been instructed for that purpose; and

(c)    the trial advocate satisfies the appropriate officer that, in his capacity as the trial advocate, and at least 5 days before the date of the pleas and directions hearing, he has done work of all the types listed in paragraphs (a) to (d) of the definition of “preparation” in paragraph 1(1) of Schedule 4 (whether or not he also does work of those types afterwards), unless at the pleas and directions hearing the assisted person pleads guilty to all counts or the prosecution declares an intention not to proceed to trial.

(2)    Subject to sub-paragraph (3), the amount of the advance payment under this sub-paragraph in respect of any such case shall be:

(a)    £250 where the trial advocate is a Queen's Counsel;

(b)    £170 where the trial advocate is not a Queen's Counsel but appears as a leader to another trial advocate;

(c)    £100 for any other trial advocate.

(3)    Where the same trial advocate is instructed in two or more cases which are to be heard concurrently the advance payment shall be the amount specified in sub-paragraph (2) in respect of the first case and twenty per cent of the amount in respect of each of the other cases

(4)    In this paragraph, a “case” means proceedings against any one assisted person on one or more counts of a single indictment.

Hardship payments

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(1)    The appropriate officer may allow a hardship payment to a representative in the circumstances set out in sub-paragraph (2), subject to the other provisions of this paragraph.

(2)    Those circumstances are that the representative:

(a)    represents the assisted person in proceedings in the Crown Court;

(b)    applies for such payment, in such form and manner as the appropriate officer may direct, not less than six months after he was first instructed in those proceedings (or in any related proceedings, if he was instructed in those proceedings earlier than in the proceedings to which the application relates);

(c)    is not, at the date of the application, entitled to any payment under paragraph 4 (interim payments in cases awaiting determination), 6 (staged payments) or 7 (interim payments);

(d)    is unlikely to receive final payment in respect of the proceedings, as determined under paragraph 12 or 15, within the three months following the application for the hardship payment; and

(e)    satisfies the appropriate officer that, by reason of the circumstance in paragraph (d), he is likely to suffer financial hardship.

(3)    Every application for a hardship payment shall be accompanied by such information and documents as the appropriate officer may require as evidence of:

(a)    the work done by the representative in relation to the proceedings up to the date of the application; and

(b)    the likelihood of financial hardship.

(4)    The amount of any hardship payment shall be in the discretion of the appropriate officer, but shall not exceed such sum as would be reasonable remuneration for the work done by the representative in the proceedings up to the date of the application.

(5)    No hardship payment shall be made if it appears to the appropriate officer that the sum which would be reasonable remuneration for the representative, or the sum required to relieve his financial hardship, is less than £5,000 (excluding any VAT).

(6)    Any hardship payment shall be set off against the remuneration finally payable to the representative under paragraph 12 or 15.

(7)    The question of whether proceedings are related to each other for the purposes of this paragraph shall be determined in accordance with paragraph 4(7).

Computation of final claim

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(1)    At the conclusion of a case in which one or more payments have been made to a representative under paragraph 6, 7, 8 or 9, he shall submit a claim under paragraph 11 or 14 for the determination of his overall remuneration, whether or not such a claim will result in any payment additional to those already made.

(2)    In the determination of the amount payable to a representative under paragraph 12 or 15, the appropriate officer shall deduct the amount of any advance payment made under paragraph 6, 7, 8 or 9 in respect of the same case from the amount that would otherwise be payable; and, if the amount of the advance payment is greater than the amount that would otherwise be payable, the appropriate officer shall be entitled to recover the amount of the difference, either by way of repayment by the representative or by way of deduction from any other amount that may be due to him.

Claims for costs by solicitors

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(1)    Subject to paragraph 23, no claim by a solicitor for costs in respect of work done under a representation order shall be entertained unless he submits it within three months of the conclusion of the proceedings to which it relates

(2)    Subject to sub-paragraph (3), a claim for costs shall be submitted to the appropriate officer in such form and manner as he may direct and shall be accompanied by the representation order and any receipts or other documents in support of any disbursement claimed.

(3)    A claim shall:

(a)    summarise the items of work done by a fee-earner in respect of which fees are claimed according to the classes specified in paragraph 12(1);

(b)    state, where appropriate, the dates on which the items of work were done, the time taken, the sums claimed and whether the work was done for more than one assisted person;

(c)    specify, where appropriate, the fee-earner who undertook each of the items of work claimed;

(d)    give particulars of any work done in relation to more than one indictment or a retrial; and

(e)    specify any disbursements claimed, the circumstances in which they were incurred and the amounts claimed in respect of them.

(4)    Where the solicitor claims that paragraph 4 of Schedule 2 Part 1 should be applied in relation to an item of work, he shall give full particulars in support of his claim.

(5)    The solicitor shall specify any special circumstances which should be drawn to the attention of the appropriate officer.

(6)    The solicitor shall supply such further particulars, information and documents as the appropriate officer may require.

(7)    Where a representation order has been made in respect of any proceedings where a defendant has been acquitted and granted a defendant's costs order under section 16 of the Prosecution of Offences Act 1985, the solicitor shall certify that no claim for costs incurred before the representation order was made has been or will be made from central funds in relation to that work.

Determination of solicitors' fees

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(1)    The appropriate officer may allow work done by fee-earners in the following classes:

(a)    preparation, including taking instructions, interviewing, witnesses, ascertaining the prosecution case, advising on plea and mode of trial, preparing and perusing documents, dealing with letters and telephone calls which are not routine, preparing for advocacy, instructing an advocate and expert witnesses, conferences, consultations, views and work done in connection with advice on appeal or case stated;

(b)    advocacy, including applications for bail and other applications to the court;

(c)    attending at court where an advocate is assigned, including conferences with the advocate at court;

(d)    travelling and waiting; and

(e)    dealing with routine letters written and routine telephone calls

(2)    The appropriate officer shall consider the claim, any further particulars, information or documents submitted by the solicitor under paragraph 11 and any other relevant information and shall allow:

(a)    such work as appears to him to have been reasonably done under the representation order (including any representation or advice which is deemed to be work done under that order) by a fee-earner, classifying such work according to the classes specified in sub-paragraph (1) as he considers appropriate; and

(b)    such time in each class of work allowed by him (other than routine letters written and routine telephone calls) as he considers reasonable.

(3)    Subject to sub-paragraph 4, in any proceedings which are specified in paragraph 1(2) of Schedule 2 Part 2, the appropriate officer shall proceed in accordance with the provisions of paragraph 3 of that Part of that Schedule.

(4)    In any proceedings in the Crown Court:

(a)    in respect of the classes of work specified in paragraph 6(2) of Schedule 4 (whether or not the proceedings are ones to which that Schedule applies), the appropriate officer shall proceed in accordance with the provisions of paragraph 15 as if the fee-earner who did the work had been a barrister;

(b)    in respect of all other classes of work, the provisions of this paragraph shall apply.

(5)    Subject to sub-paragraph (2), (3), (4) and (6), the appropriate officer shall allow fees for work allowed by it under this paragraph in accordance with Schedule 2 Part 1.

(6)    In the case of criminal proceedings in the Crown Court and the Court of Appeal, the fees allowed in accordance with Part 1 of Schedule 2 shall be those appropriate to such of the following grades of fee-earner as the appropriate officer considers reasonable:

(a)    senior solicitor;

(b)    solicitor, legal executive or fee earner of equivalent experience;

(c)    trainee or fee-earner of equivalent experience.

(7)    In relation to hearings specified in sub-paragraph (6), work of the class specified in sub-paragraph (1)(c) shall only be allowed in the following circumstances:

(a)    if the assisted person is charged with an offence included in Class 1 or Class 2 as determined pursuant to section 75(2) of the Supreme Court Act 1981;

(b)    if the proceedings have been instituted or taken over by the Serious Fraud Office, or are before the Crown Court by reason of a notice of transfer given under section 4 of the Criminal Justice Act 1987;

(c)    if the assisted person was a child or a young person within the meaning of section 107 of the Children and Young Persons Act 1933 at the time when the Crown Court acquired jurisdiction in the case (by committal, notice of transfer or otherwise);

(d)    if the assisted person was unable to understand the proceedings or give adequate instructions to his advocate because of his inadequate knowledge of English, mental illness or other mental or physical disability;

(e)    if the assisted person was likely if convicted to receive a custodial sentence; or

(f)    if the case has been certified as requiring attendance for the whole or any part of the hearing pursuant to CDS Regulations.

(8)    The following hearings in the Crown Court are specified for the purpose of sub-paragraph (7): trials, hearings of cases listed for pleas of guilty following a pleas and direction hearing, sentence hearings following committals for sentence and the hearing of appeals against conviction or sentence.

(9)    The circumstances referred to in sub-paragraph (7)(e) shall only justify the allowing of attendance on:

(a)    a day of a trial on which it was reasonably expected that the assisted person would be sentenced if convicted; and

(b)    if different, the day on which the assisted person was in fact sentenced

and where a doubt arises whether attendance should be allowed by reason of that circumstance, the doubt shall be resolved in the assisted person's favour.

(10)    The circumstances referred to in sub-paragraph (7)(f) shall only justify the allowing of attendance to the extent specified in the representation order.

(11)    This paragraph applies to work in respect of which standard fees are payable under Part 2 of Schedule 2, or a graduated or fixed fee is payable under Schedule 4 only to the extent that that Part or that Schedule specifically so provide.

(12)    In relation to hearings specified in sub-paragraph (11), work of the class specified in sub-paragraph (1)(c) shall only be allowed in the circumstances mentioned in sub-paragraph (7)(a) to (f).

(13)    The following hearings in the Crown Court are specified for the purposes of sub-paragraph (10): trials, hearing of cases listed for pleas of guilty following a pleas and directions hearing, sentencing hearings following committals for sentence and the hearing of appeals against conviction or sentence.

Determination of solicitors' disbursements

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(1)    Subject to the provisions of this paragraph, the appropriate officer shall allow such disbursements claimed under paragraph 11 as appears to him to have been reasonably incurred, provided that:

(a)    if they are abnormally large by reason of the distance of the court or the assisted person's residence or both from the solicitors' place of business, reimbursement of the expenses may be limited to what otherwise would, having regard to all the circumstances, be a reasonable amount; and

(b)    in the case of an appeal to the Court of Appeal, the cost of a transcript, or any part thereof, of the proceedings in the court from which the appeal lies obtained otherwise than through the registrar shall not be allowed except where the appropriate officer considers that it is reasonable in all the circumstances for such disbursement to be allowed.

(2)    No question as to the propriety of any step or act in relation to which prior authority has been obtained under CDS Regulations shall be raised on any determination of costs, unless the solicitor knew or ought reasonably to have known that the purpose for which the authority was given had failed or had become irrelevant or unnecessary before the costs were incurred.

(3)    Where costs are reasonably incurred in accordance with and subject to the limit imposed by a prior authority given under CDS Regulations, no question shall be raised on any determination of costs as to the amount of the payment to be allowed for the step or act in relation to which the authority was given.

(4)    Where costs are incurred in taking any steps or doing any act for which authority may be given under CDS Regulations, without such authority having been given or in excess of any fee so authorised, payment in respect of those costs may nevertheless be allowed on a determination of costs

Claims for fees by an advocate

14

(1)    Subject to paragraph 23, no claim by an advocate for fees for work done under a representation order shall be entertained unless he submits it within three months of the conclusion of the proceedings to which the representation order relates

(2)    A claim for fees shall be submitted to the appropriate officer in such form and manner as he may direct.

(3)    A claim shall:

(a)    summarise the items of work in respect of which fees are claimed according to the classes of fee specified in paragraph 15(5);

(b)    state the dates on which the items of work were done, the time taken where appropriate, the sums claimed and whether the work was done for more than one assisted person;

(c)    give particulars of any work done in relation to more than one indictment or a retrial.

(4)    Where an advocate claims that:

(a)    it would be inappropriate to allow a standard fee under paragraph 15(2); or

(b)    paragraph 15(6) should be applied in relation to an item of work

he shall give full particulars in support of his claim.

(5)    Where there are any special circumstances which should be drawn to the attention of the appropriate officer, the advocate shall specify them.

(6)    The advocate shall supply such further particulars, information and documents as the appropriate officer may require.

Determination of advocate's fees

15

(1)    The appropriate officer shall consider the claim, any further particulars and information submitted by an advocate under paragraph 14 and any other relevant information and shall allow such work as appears to him to have been reasonably done.

(2)    In any proceedings specified in paragraph 2 or 3 of Schedule 4, the appropriate officer shall allow a graduated or fixed fee calculated in accordance with that Schedule in respect of all such work allowed by it as falls into the classes specified in paragraph 6(2) of that Schedule.

(3)    Where in any proceedings specified in paragraph 2 of Schedule 4, the trial judge makes adverse observations concerning the advocate's conduct of the case, the appropriate officer may reduce any fee which would otherwise be payable in accordance with that Schedule by such proportion as he shall see fit, having first given the advocate the opportunity to make representations about the extent to which the fee should be reduced.

(4)    Where it appears to the appropriate officer that the fixed fee allowed by Schedule 4 in respect of any proceedings specified in paragraph 3 of that Schedule would be inappropriate taking into account all of the relevant circumstances of the case, he may instead allow fees in accordance with sub-paragraphs (5) and (6) below.

(5)    The appropriate officer may, except in relation to work for which a graduated or fixed fee is allowed under subparagraph (2), allow any of the following classes of fee to an advocate in respect of work allowed by him under this paragraph:

(a)    a basic fee for preparation including preparation for a pre-trial review and, where appropriate, the first day's hearing including, where they took place on that day, short conferences, consultations, applications and appearances (including bail applications), views and any other preparation;

(b)    a refresher fee for any day or part of a day during which a hearing continued, including, where they took place on that day, short conferences, consultations, applications and appearances (including bail applications), views and any other preparation;

(c)    subsidiary fees for:

(i)    attendance at conferences, consultations and views not covered by (a) or (b);

(ii)    written advice on evidence, plea, appeal, case stated or other written work; and

(iii)    attendance at pre-trial reviews, applications and appearances (including bail applications and adjournments for sentence) not covered by (a) or (b).

(6)    In the case of proceedings in the Crown Court, the appropriate officer shall, except in relation to work for which a graduated or fixed fee is allowed under sub-paragraph (2), allow such fees in respect of such work as he considers reasonable in such amounts as he may determine in accordance with Schedule 3, provided that where it appears to the appropriate officer, 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 Part 2 of Schedule 3 would not provide reasonable remuneration for some or all of the work he has allowed, he may allow such amounts as appear to him to be reasonable remuneration for the relevant work.

(7)    In the case of proceedings in the Court of Appeal, the appropriate officer shall allow such fees in respect of such work as he considers reasonable in such amount as appears to him to be reasonable remuneration for such work.

(8)    Where prior authority has been obtained to instruct a Queen's Counsel alone no question as to the propriety of that act shall be raised on any determination of the advocate's fees, unless the solicitor knew or ought reasonably to have known that the purpose for which the authority was given had failed or become irrelevant or unnecessary before the fees were incurred.

(9)    Where:

(a)    a representation order provides for representation by a sole advocate other than a Queen's Counsel, and a Queen's Counsel agrees to appear as the sole advocate; or

(b)    a representation order provides for representation by two advocates other than Queen's Counsel, and a Queen's Counsel agrees to appear as a leading junior that Queen's Counsel shall be treated for all the purposes of this Schedule as having been instructed under that order, and his remuneration shall be determined as if he were not a Queen's Counsel.

16

(1)    Subject to sub-paragraph (2), where the court has disallowed the whole or any part of any wasted costs under section 19A of the Prosecution of Offences Act 1985 the appropriate officer, in determining costs in respect of work done by the representatives against whom the wasted costs order was made, shall deduct the amount of the order from the amount otherwise payable in accordance with this Schedule.

(2)    Where the appropriate officer, in accordance with this Schedule, is minded to disallow any amount of a claim for work done to which the wasted costs order relates, he shall disallow that amount or the amount of the wasted costs order, whichever is the greater.

Payment of costs

17

(1)    Having determined the costs payable to a representative in accordance with this Schedule, the appropriate officer shall notify the representative of the costs payable and authorise payment accordingly.

(2)    Where the costs payable under sub-paragraph (1) are varied as a result of any review, redetermination or appeal made or brought pursuant to this Schedule:

(a)    where the costs are increased, the appropriate officer shall authorise payment of the increase;

(b)    where the costs are decreased, the representative shall repay the amount of such decrease; and

(c)    where the payment of any costs of the representative is ordered under paragraph 21(14) or 22(8) or Schedule 2 Part 2 paragraph 8(4), the appropriate officer shall authorise payment.

Recovery of overpayments

18

(1)    This paragraph applies where a representative is entitled to be paid a certain sum (“the amount due”) by virtue of the provisions of this Schedule and, for whatever reason, he is paid an amount greater than that sum.

(2)    Where the circumstances in sub-paragraph (1) arise, the appropriate officer may:

(a)    require immediate repayment of the amount in excess of the amount due (“the excess amount”) and the representative shall on demand repay the excess amount to the appropriate officer; or

(b)    deduct the excess amount from any other sum which is or becomes payable to the representative by virtue of the provisions of this Schedule.

(3)    The appropriate officer may proceed under sub-paragraph (2)(b) without first proceeding under sub-paragraph (2)(a).

(4)    Sub-paragraph (2) shall apply notwithstanding that the representative to whom the excess amount was paid is exercising, or may exercise, a right under paragraphs 20 to 22.

Notification of costs

19

For the purposes of an order which may be made under section 17 of the Act, other than where the proceedings are in the magistrates' court only, having determined the costs payable to a representative in accordance with this Schedule, the appropriate officer shall notify the court before which the proceedings are heard of the amount determined in each case.

Redetermination of costs by appropriate officer

20

(1)    Where:

(a)    a representative is dissatisfied with the costs (other than the standard fees allowed under Schedule 2 Part 2 or graduated or fixed fees allowed under Schedule 4) determined in accordance with the provisions of this Schedule by the appropriate officer;

(b)    an advocate in proceedings in the Crown Court is dissatisfied with the decision that Schedule 4 does or does not apply to those proceedings or with the calculation of the remuneration payable under that Schedule; or

(c)    an advocate in proceedings in the Crown Court is dissatisfied with the decision not to allow one of the following fees, or with the number of hours allowed in the calculation of such a fee, namely:

(i)    a special preparation fee under paragraph 17 of Schedule 4;

(ii)    a wasted preparation fee under paragraph 18 of Schedule 4; or

(iii)    an hourly fee under either sub-paragraph of paragraph 19(1) of Schedule 4

he may apply to the appropriate officer to redetermine those costs or to review that decision as the case may be.

(2)    Subject to paragraph 23, the application shall be made within 21 days of the receipt of notification of the costs payable under paragraph 17, by giving notice in writing to the appropriate officer specifying the matters in respect of which the application is made and the grounds of objection and shall be made in such form and manner as the appropriate officer may direct.

(3)    The notice of application shall be accompanied by the particulars, information and documents supplied under paragraph 11 or 14, as appropriate.

(4)    The notice of application shall state whether the applicant wishes to appear or to be represented and, if the applicant so wishes, the appropriate officer shall notify the applicant of the time at which he is prepared to hear him or his representative.

(5)    The applicant shall supply such further particulars, information and documents as the appropriate officer may require.

(6)    The appropriate officer shall:

(a)    redetermine the costs, whether by way of increase or decrease in the amount previously determined; or

(b)    review the decision to allow standard fees under paragraph 15(2), and confirm it, or allow fees in accordance with paragraph 15(5) and (6),

in the light of the objections made by the applicant or on his behalf and shall notify the applicant of his decision.

(7)    The applicant may request the appropriate officer to give reasons in writing for his decision and the appropriate officer shall comply with any such request.

(8)    Subject to paragraph 23, any request under sub-paragraph (7) shall be made within 21 days of receiving notification of the decision.

Appeals to a Costs Judge

21

(1)    Where the appropriate officer has given his reasons for his decisions under paragraph 20, a representative who is dissatisfied with that decision may appeal to a Costs Judge.

(2)    Subject to paragraph 23, an appeal shall be instituted within 21 days of the receipt of the appropriate officer's reasons, by giving notice in writing to the Senior Costs Judge.

(3)    The appellant shall send a copy of any notice given under sub-paragraph (2) to the appropriate officer.

(4)    The notice of appeal shall be accompanied by:

(a)    a copy of the written representations given under paragraph 20(2);

(b)    the appropriate officer's reasons for his decision given under paragraph 20(7); and

(c)    the particulars, information and documents supplied to the appropriate officer under paragraph 20.

(5)    The notice of appeal shall:

(a)    be in such form as the Senior Costs Judge may direct:

(b)    specify separately each item appealed against, showing (where appropriate) the amount claimed for the item, the amount determined and the grounds of the objection to the determination; and

(c)    state whether the appellant wishes to appear or to be represented or whether he will accept a decision given in his absence.

(6)    The Senior Costs Judge may, and if so directed by the Lord Chancellor either generally or in a particular case shall, send to the Lord Chancellor a copy of the notice of appeal together with copies of such other documents as the Lord Chancellor may require.

(7)    With a view to ensuring that the public interest is taken into account, the Lord Chancellor may arrange for written or oral representations to be made on his behalf and, if he intends to do so, he shall inform the Senior Costs Judge and the appellant.

(8)    Any written representations made on behalf of the Lord Chancellor under sub-paragraph (7) shall be sent to the Senior Costs Judge and the appellant and, in the case of oral representations, the Senior Costs Judge and the appellant shall be informed of the grounds on which such representations will be made.

(9)    The appellant shall be permitted a reasonable opportunity to make representations in reply.

(10)    The Costs Judge shall inform the appellant (or his representative) and the Lord Chancellor, where representations have been or are to be made on his behalf, of the date of any hearing and, subject to the provisions of this paragraph, may give directions as to the conduct of the appeal.

(11)    The Costs Judge may consult the trial judge or the appropriate officer 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 under paragraph 20.

(12)    The Costs Judge shall have the same powers as the appropriate officer under this Schedule and, in the exercise of such powers, may:

(a)    alter the redetermination of the appropriate officer in respect of any sum allowed, whether by increase or decrease as he thinks fit;

(b)    confirm the decision to allow standard fees under paragraph 15(2) or allow fees in accordance with paragraph 15(5) and (6).

(13)    The Costs Judge shall communicate his decision and the reasons for it in writing to the appellant, the Lord Chancellor and the appropriate officer.

(14)    Except where he confirms or decreases the sums redetermined under paragraph 20 or confirms a decision to allow standard fees, 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.

Appeals to the High Court

22

(1)    A representative who is dissatisfied with the decision of a Costs Judge on an appeal under paragraph 21 may apply to a Costs Judge to certify a point of principle of general importance.

(2)    Subject to paragraph 23, an application under sub-paragraph (1) shall be made within 21 days of notification of a Costs Judge's decision under sub-paragraph 21(13).

(3)    Where a Costs Judge certifies a point of principle of general importance, the representative may appeal to the High Court against the decision of a Costs Judge on an appeal under paragraph 21, and the Lord Chancellor shall be a respondent to such an appeal.

(4)    Subject to paragraph 23, an appeal under sub-paragraph (3) shall be instituted within 21 days of receiving a Costs Judge's certificate under sub-paragraph (1).

(5)    Where the Lord Chancellor is dissatisfied with the decision of a Costs Judge on an appeal under paragraph 21, he may, if no appeal has been made by the representative under sub-paragraph (3), appeal to the High Court against that decision, and the representative shall be a respondent to the appeal.

(6)    Subject to paragraph 23, an appeal under sub-paragraph (5) shall be instituted within 21 days of receiving notification of the Costs Judge's decision under paragraph 21(13).

(7)    An appeal under sub-paragraph (3) or (5) shall be brought in the Queen's Bench Division, follow the procedure set out in Part 8 of the Civil Procedure Rules 1998, and shall be heard and determined by a single judge whose decision shall be final.

(8)    The judge shall have the same powers as the appropriate officer and a Costs Judge under this Schedule and may reverse, affirm or amend the decision appealed against or make such other order as he thinks fit.

Time limits

23

(1)    Subject to sub-paragraph (2), the time limit within which any act is required or authorised to be done may, for good reason, be extended:

(a)    in the case of acts required or authorised to be done under paragraph 21 or 22, by a Costs Judge or the High Court as the case may be; and

(b)    in the case of acts required or authorised to be done by a representative under any other paragraph, by the 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 appropriate officer, a Costs Judge or the High Court, as the case may be, may, in exceptional circumstances, extend the time limit and shall consider whether it is reasonable in the circumstances to reduce the costs; provided that the costs shall not be reduced unless the representative has been allowed a reasonable opportunity to show cause orally or in writing why the costs should not be reduced.

(3)    A representative may appeal to a Costs Judge against a decision made under this paragraph by an appropriate officer and such an appeal shall be instituted within 21 days of the decision being given by giving notice in writing to the Senior Costs Judge specifying the grounds of appeal.

House of Lords

24

(1)    In the case of proceedings in the House of Lords, the costs payable to a representative under sections 13 or 14 of the Act shall be determined by such officer as may be prescribed by order of the House of Lords

(2)    Subject to paragraph (1), this Schedule shall not apply to proceedings in the House of Lords

1

The appropriate officer shall allow such fee in respect of an item of work allowed under paragraph 15(6) of Schedule 1, not exceeding the maximum amount specified in respect of that item of work, as appears to it to provide reasonable remuneration.

2

Where an hourly rate is specified in a Table in this part of this Schedule in respect of an item of work allowed under paragraph 15(6) of Schedule 1, the appropriate officer shall determine any fee for such work in accordance with that hourly rate; provided that the fee determined shall not be less than the minimum amount specified.

3

Where a refresher fee is claimed in respect of less than a full day, the appropriate officer shall allow such fee as appears to him reasonable having regard to the fee which would be allowable for a full day.

4

The fees allowed to junior counsel for proceedings in the Crown Court arising out of a breach of an order of the Crown Court or other similar matter shall not exceed the maximum amounts specified for “committals for sentence”.

5

Paragraph 24 of Schedule 4 shall apply where an advocate's fees are determined in accordance with this Part of this Schedule as it applies where a graduated or fixed fee is allowed in accordance with Schedule 4.

TABLE 1: JUNIOR COUNSEL

TABLE 2 QUEEN'S COUNSEL

Table 1 Hourly rates for preparation

1.1

In circumstances where the Commission or (as the case may be) the appropriate officer considers the work undertaken not to be of the exceptional nature appropriate to a Very High Cost Case, the standard rates of pay set out in column 6 of Table 1 in this Schedule will apply.

Table 2 Hourly rates for non-preparatory work

2.1

The Commission or (as the case may be) the appropriate officer may enhance by up to 100%:

(a)    in exceptional circumstances, the applicable rate for attendance at court in Table 2 in this Schedule; and

(b)    in very exceptional circumstances, the applicable rate for travel and waiting in Table 2 in this Schedule.

Table 3 Daily rates for advocacy

3.1

Solicitor advocates will be paid the appropriate rate for a leading junior, a led junior, or a junior alone, as set out in Table 3 of this Schedule.

3.2

The full daily rate in Table 3 of this Schedule will be allowed if the advocate is in court for more than 3½ hours; half that rate will be allowed if he is in court for 3½ hours or less

Table 4 Preliminary hearings

4.1

The rates in Table 4 of this Schedule will only apply where the hearing lasts two hours or less; otherwise the daily or half daily rate payable under Table 3 of this Schedule and paragraphs 3.1 and 3.2.

This Order makes provision for the funding and remuneration of services provided under Part I of the Access to Justice Act 1999 as part of the Criminal Defence Service.

It provides that, subject to some exceptions, the Lord Chancellor (rather than the Legal Services Commission) shall fund representation in criminal proceedings in the House of Lords, Court of Appeal and Crown Court until 4th April 2005 as part of the Criminal Defence Service.

It makes provision, in Schedules 1 to 4, for the remuneration of those supplying those services Those provisions draw to a large extent on the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989, which related to criminal representation provided under Part V of the Legal Aid Act 1988, and which are being superseded by this Order.

Schedule 1 deals with the manner in which costs are to be determined and paid. There are specific provisions dealing with interim payments and staged payments in long trials. There are also provisions dealing with the redetermination of costs by an appropriate officer, appeals from the appropriate officer to a Costs Judge, and appeals from the Costs Judge to the High Court.

Schedules 2 and 3 deal respectively with solicitors' fees, and counsel's fees to which the fees in Schedule 4 do not apply. Schedule 4 deals with fees for advocacy in the Crown Court.

The Order provides that the Commission may fund services by making payments in respect of the provision of those services only where representation is provided in proceedings for contempt, and special provision is made for remuneration in respect of proceedings for contempt.

Where services are provided under the Criminal Defence Service under contract remuneration is limited to the rates set out in Part E of the Specification to the Legal Services Commission's General Criminal Contract. Special maximum rates are provided for services in very high cost cases, funded by the Lord Chancellor, or provided under individual contracts