Court rules on legal aid remuneration in Nguyen case

Introduction

The High Court, specifically the Senior Courts Costs Office, recently delivered a ruling in the case of Rex vs Tan Cong Nguyen, addressing a significant dispute over the calculation of prosecution evidence pages under the Criminal Legal Aid (Remuneration) Regulations 2013. The case was presided over by Costs Judge Whalan and involved Tyler Hoffman Solicitors ('the Appellants') contesting a decision by the Legal Aid Agency ('the Respondent').

Background

The case arose from Tyler Hoffman Solicitors' representation of Tan Cong Nguyen, who was charged with producing a Class B drug, cannabis, alongside three co-defendants. The legal dispute centred on the number of pages of prosecution evidence ('PPE') that should be accounted for in the Appellants' Litigator's Graduated Fees Scheme ('LGFS') claim.

The Appellants argued for a PPE count of 10,000 pages, while the Respondent allowed only 882 pages. The evidence in question primarily derived from a Samsung mobile phone seized during a police raid, which contained a total of 28,872 pages of data.

The Appeal

The appeal was initiated after the Respondent's decision to reduce the PPE count. The Appellants contended that the entire data set from the mobile phone should be included in the PPE count, subject to the 10,000-page cap stipulated by the regulations. The Respondent, however, only conceded to a limited number of pages based on specific categories of evidence.

Legal Framework

The case was adjudicated under the Criminal Legal Aid (Remuneration) Regulations 2013. These regulations dictate the criteria for counting pages of prosecution evidence, including witness statements, exhibits, and electronic documents served in the case.

Authoritative guidance was referenced from the case of Lord Chancellor v. SVS Solicitors [2017] EWHC 1045 (QB), which outlined the principles for determining what constitutes served evidence and its inclusion in the PPE count.

Submissions and Analysis

The Appellants argued that the prosecution relied on the mobile phone data as a whole to refute the Defendant's modern slavery defence. They emphasised that the prosecution used the phone's data to demonstrate the Defendant's ability to contact authorities, thus undermining the defence's argument of restricted liberty.

The Respondent maintained that the Determining Officer's categorisation of the evidence was reasonable, excluding certain voluminous categories from the PPE count.

Judgment

Costs Judge Whalan concluded that the Determining Officer's assessment was overly conservative and that a greater portion of the electronic data should be included in the PPE count. However, the Judge did not agree to include all the electronic data, excluding certain categories like metadata and some images.

The Judge directed that 10,000 pages of electronic data should be included in the PPE count, making a total of 10,131 PPE. Consequently, the appeal was allowed, and the Appellants were awarded costs of £750, in addition to the £100 paid on lodging the appeal.

Conclusion

This ruling provides significant clarification on the application of the Criminal Legal Aid (Remuneration) Regulations 2013, particularly in cases involving large volumes of electronic evidence. It underscores the importance of accurately assessing the relevance and inclusion of evidence in legal aid claims.

Learn More

For more information on legal compliance and business practices in the context of data handling, see BeCivil's guide to English Data Protection Law.