Counsel hit with five million pages fail in fee challenge

Seven criminal barristers have lost a High Court battle with the Legal Aid Agency (LAA) over their fees for a £5m fraud trial in which a five-million page hard drive was served on the defence shortly before trial.

Three silks and four juniors claimed the LAA wrongly decided that any increase in their previously-offered fees would be calculated under the interim fixed fee offer (IFFO) scheme on a ‘time spent’ basis.

The barristers were offered £131,000 for the QCs and £66,700 for the juniors to act in a four-month trial of four men accused of promoting an investment in which investors allegedly lost more than £5m.

The defendants’ company’s hard drive was seized and then served on the defence as ‘primary prosecution material’ – just two months before the trial was due to begin, leading to two adjournments.

The drive contained between 4.3m and 6.5m pages which, under the IFFO ‘calculator’ that determines fees based on the type and length of trial and the volume of evidence, would result in fees of £8,529,300 for the QCs and £4,240,100 for the juniors based on the 4.3m figure.

The LAA told the eight barristers – one of who withdrew from the judicial review after it was filed – that the calculator generated a  fee £51,077,600 just for reviewing the hard drive, which is ‘obviously not a fee which properly represents the nature or value of the case’. It proposed 50 further hours as ‘an appropriate starting point for each counsel’ on top of their previously-offered fees, which was rejected by the barristers who suggested a compromise figure of 2,600 hours each.

They applied for permission to bring a judicial review, seeking an order requiring the LAA to make an offer based on putting ‘all relevant data’ into the IFFO calculator and explaining why any specific parts of the hard drive had been disregarded when calculating their final fee.

But Mr Justice Chamberlain refused permission in a ruling published today, in which he rejected the argument that the LAA failed to properly apply the IFFO scheme.

The judge accepted that guidance on the IFFO scheme ‘does not say anything’ about how an assessment is to be carried out when the calculator does not produce a fee which properly represents the nature or value of the case.

‘But in this case, the figures spoke for themselves,’ he said. ‘Even if all the counsel worked on this case and nothing else for a full three years (and it is not suggested that any of them has), it would result in each of the QCs receiving annual remuneration from public funds of more than £2.8m and each of the juniors more than £1.4m. These are astronomical figures.

‘The total cost of counsel would amount to about 10 times the value of the fraud being prosecuted. These figures only had to be stated for it to be obvious that they did not represent “the nature or value of the case”.’


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