Case No. T2008 7609, SCCO Ref: 10/10 
Neutral Citation Number: [2010] EWHC 90172 (Costs)
ON APPEAL FROM REDETERMINATION
KINGSTON CROWN COURT
Date: 1 June 2010

B e f o r e :
C. CAMPBELL
COSTS JUDGE
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Between

APPEAL PURSUANT TO THE COSTS IN CRIMINAL CASES (GENERAL) REGULATIONS 1986 (AS AMENDED)

REGINA v ZACHARIA
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APPLICANT: SOLICITORS /COUNSEL McCARTY & CO, SOLICITORS DX 32006 WALTHAMSTOW
DATE OF NOTICE OF APPEAL: 	18 DECEMBER 2009
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JUDGMENT

The appeal has been successful (in part) for the reasons set out below.
The appropriate additional payment, to which should be added the sum of £210 (exclusive of VAT) for costs and the £100 paid on appeal, should accordingly be made to the Applicant.

REASONS FOR DECISION

1.	This appeal concerns the claim of the Appellant, McCarty & Co, for a fee for special preparation under the Litigator Fee Scheme.
2.	The Appellant had acted for Zakey and Tony Zacharia in the Kingston Crown Court on a multi-hander in which, with six or seven others. The Defendants faced charges of supplying class A drugs over a period of 18 months. The trial lasted two to three weeks and had resulted in the conviction of all Defendants; those who pleaded guilty received terms of imprisonment of between ten and twelve years, and those who were convicted following trial faced terms of 15-18 years.
3.	On 16 July 2009, the Appellant lodged his litigator fee claim in form LF1. This sought total costs of £119,410.51 plus VAT, which included 155 hours, 54 minutes for special preparation in relation to consideration of audio evidence. This had been relied on by the Crown and had been obtained using a probe which had been hidden within the Defendant family's work place over a period of six months. Extracts from the audio evidence had been transcribed and 2,250 (approximately) pages had been served as transcribed evidence from the probe. In addition, the Crown had served a hard drive of which the entirety of the audio evidence was stored. As this was the only evidence relied upon against Zacharia Snr, the Appellant firm took a view that it was essential to listen to the probe, and also to check that where transcripts had been served, these had accurately recorded the conversations.
4.	The claim for special preparation amounted to £14,043.10 plus VAT which the Legal Services Commission refused in its entirety. Dissatisfied, the Appellant lodged LFA1 and thereafter requested written reasons for the disallowance These were dated 24 November 2009 and said this:-
"In respect of your special preparation claims, I can confirm that our original decision stands.
The reason why your special preparation claim has been unsuccessful is because audio evidence is not defined as PPE [pages of prosecution evidence]. For prosecution evidence to fall within the ambit of Paragraph 15 of Schedule 2 of the Criminal Defence Service (Funding) Order 2007 ("the Order"), and be assessed as special preparation, it must mean that definition was set out in Paragraph 1(2) of Schedule 1 of the Order:
"For the purpose of this Schedule, the number of pages of prosecution evidence served on the Court includes all (a) witness statements, (b) documentary and pictorial exhibits, (c) records and interviews with the assisted person, and (d) records and interviews with other Defendants which form part of the committal served prosecution documents or which are included in any Notice of Additional Evidence, but does not include any document provided on CD-rom or by other means of electronic communication".
That definition expressly refers to "pages" of prosecution evidence and "documents" provided by way of electronic communication. It is therefore impossible to equate all the evidence of documents or pages of evidence. Additionally, the pre-enactment history of the Order makes it clear that the intention was expressly to exclude additional payment for work such as listening to audio evidence. Payment for this work is included in the initial fee payable pursuant to paragraph 7 and 8 of the Order"
5.	On the appeal, Mr Dawnay represented his firm. He submitted that audio evidence is always intended to be reduced to transcript form. By way of example he gave transcripts of interview evidence, where that evidence is initially tape recorded but then reduced to written form when transcribed and served. The position was no different here where the Crown had relied on audio evidence, some, but not all, of which had been transcribed and served as prosecution documents. Mr Dawnay accepted that where transcripts are served with taped interviews with the Defendant, the cost of listening to the audio tape does not form part of the page count, merely when the accuracy of the transcript is being checked against the tape recording. The position here, was different. The Crown had transcribed those parts of the evidence upon which they relied without indicating where that material appeared on the probe. In these circumstances it was necessary for the fee-earner to listen to the entirety of the tape; this was not "checking" which would have been included by analogy within the page count, had these been transcripts of interviews. On the contrary, the fee-earner had been involved in original work, namely listening to the probe which was capable of being converted into a written document in transcript form.
6.	In principle, I consider that Mr Dawnay's submission is correct. I put to him the decision of the Lord Chancellor v Michael Reed [2009] EWHC 2981 (QB) in which Mr Justice Penry-Davey had considered the legislative scheme which applies, and in particular whether the listening of tapes can be paid as "special preparation". At paragraph 9(d) the Learned Judge said this:-
"In my judgment the appeal must be allowed and the special
preparation fee .... must be set aside. My reasons are as follows:-
(e)	The clear fact of paragraph 1(2) is to exclude from the calculation of prosecution pages of evidence any DVD, CD-rom, audio or video tape or other electronically stored material. The definition excludes or, to use the words of the Order, "does not include any document provided on CD-rom or by any other means of electronic communication" ....
(f)	Paragraph 15 also excludes any preparation fee being awarded in respect of such material, unless the material is within the definition in paragraph 1(2) if (only if) such material is served in electronic form only, and it consists of "any document" can the additional material so served qualify for a special preparation fee in excess of the fee payable under part 2 if the appropriate officer considers it reasonable to make such a payment. The words "any document" in my judgment in context mean a still image, rather than moving footage (whether in the form of a DVD, CD-rom or video or audio tape, or some other electronic form) not intended for conversion to still images, or which can not so be converted".
7.	Mr Dawnay addressed this difficulty, correctly in my view, by pointing to the fact that the audio tape served here, namely the hard drive of the entirety of the six months probe, was capable of conversion; not only that, but conversion had happened in this case because the Crown had, selectively, served in document form part of the probe evidence.
8.	In my judgment, having regard to Mr Dawnay's reasons, I consider that the Legal Services Commission ought not to have disallowed the claim for special preparation in its entirety. The written reasons contend that it has always been the case that special preparation claims can only be made for viewing electronic evidence, that is defined as PPE; therefore it is specifically restricted to evidence that can be put into pages and that, in effect, any evidence that is audio visual is excluded. In my view, that is not the situation here. No audio visual evidence is being relied on. On the contrary, the Crown simply transcribed some but not all of the audio evidence obtained by the probe. Had the entirety of the probe evidence been transcribed, this would have formed part of the page count because the claim for those items was paid by the LSC upon receipt of the LF1. In short therefore, I start from the proposition that because the audio probe evidence could be put into pages (and indeed in part, that was done), it is capable of attracting a fee for special preparation.
9.	So far as the amount is concerned, this is more difficult. As I have said, the Appellant has already been paid for the probe evidence which was converted into a document having been transcribed. In my view, this should not attract an additional fee where the work involved was checking. Mr Dawnay and I did the best we could to separate out that aspect of the work and came up with about 75 hours. Having separated out that figure, and doing the best I can, I would allow a further 75 hours for considering the probe evidence that had not been transcribed and converted into document form, but was capable of being so converted. At one point, I took the view that this should be at Grade C but Mr Dawnay persuaded me that the complexity of the case justified a Grade A in view of the fact that the probe was the entirety of the evidence relied upon against Zacharia Senior. He also explained that where the Grade C had been involved, this was at Court when Leading Counsel had required him to listen to the probe during the course of the trial. I am satisfied, therefore, that the 75 hours should be Grade A. As to the rate, the Legal Services Commission allowed enhancement on preparation. This was important work. Having been satisfied that the case merited enhancement, there was no justification in my view, for not extending this for the probe evidence so the appeal will succeed to the extend that 75 hours at Grade A will be allowed uplifted by 100%.

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