A solicitor acquitted of perverting the course of justice after he was instructed in relation to the Hillsborough disaster inquiry has succeeded in an appeal against the Legal Aid Agency.
Peter Metcalf was instructed by the Municipal Mutual Insurance Company, the insurers of South Yorkshire Police, in relation to the inquiry and the civil proceedings brought against the police. He was charged with two counts of undertaking acts with the intention to pervert the course of justice. A judge concluded there was no case to answer and Metcalf was acquitted. An order was made that his costs should be paid out of central funds.
Metcalf claimed costs of £4,095,725. Initially, £1,014,214 was allowed but that was increased on redetermination by £199,455.
Metcalf appealed on a number of points. Most issues were resolved before the hearing, apart from the fees of a second junior counsel, Senghin Kong, in which £709,317 was claimed – 11,259 hours at £63 per hour.
Senior Costs Judge Gordon-Saker said the starting point in assessing costs out of central funds ‘is whether the defendant was reasonable in instructing the counsel which he did’. He added: ‘In approaching the correct test, the Determining Officer should look at the size, weight, complexity and all of the circumstances of the case.
‘An inescapable conclusion is that it was necessary for somebody to do at least some of the work done by Mr Kong. That was accepted by the Determining Officer.
‘In my judgment it was reasonable to instruct three counsel in this case, the third counsel being primarily responsible for reviewing, analysing and scheduling the disclosure. I would allow the fees of a second junior counsel for reading the disclosure, preparing the schedules and chronologies arising from that, ancillary work such as attending conferences and attending trial.’
Work done on skeleton arguments would not justify the instruction of three counsel, the judge added.
Finding in favour of Metcalf, the judge said: ‘The total fees of £375,000 do appear to be too much to be reasonable. In my judgment 5,000 hours, which would be equivalent to about 100 weeks, would be reasonable. That would give a fee for Mr Kong of £250,000 as against the £29,000 allowed for the notional paralegal. The appeal succeeds to that extent.’
Metcalf was awarded the assessed costs of £28,000, plus any VAT payable and the £100 court fee.
Allowing the costs of the appeal, the judge said £33,600, including VAT, would be reasonable. Metcalf had claimed £55,608.
