20.—(1) A litigator may make a claim to the appropriate officer for an interim payment in respect of attendance at court where a Crown Court trial lasts for a qualifying period.
(2) Where a claim is made in accordance with this article, an interim payment must, without prejudice to the final determination of the fees payable, be allowed where a litigator or a fee earner representing him has attended at court on each day of the relevant qualifying period.
(3) For the purposes of this article, the qualifying period is 20 days, and a day shall qualify as part of the relevant qualifying period, whether or not the days within the qualifying period are continuous, 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 is—
(a) where the hearing begins before and ends after the luncheon adjournment, five times the hourly rate for a trainee solicitor or fee earner of equivalent experience attending court where more than one representative is instructed as prescribed in Part 1 of Schedule 2; or
(b) 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 sub-paragraph (a).
(5) A claim for an interim payment may be made in respect of a qualifying period and must be submitted in such form and manner as the appropriate officer may direct.
(6) Further interim payments under this article may be claimed if the trial lasts for further qualifying periods.
(7) A litigator 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 article, 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 article).
(8) A claim under paragraph (7) must be submitted in such form and manner as the appropriate officer may direct, and must be supported by such evidence of the expense claimed as he may require.
(9) Articles 29 to 31 do not apply to a payment under this paragraph.
21.—(1) Subject to paragraphs (4) and (5), the appropriate officer may allow a hardship payment to a representative in the circumstances set out in paragraph (2).
(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 related proceedings if he was instructed in those proceedings earlier than in the proceedings to which the application relates;
(c) is unlikely to receive final payment in respect of the proceedings, as determined under Schedules 1 or 2, within the three months following the application for the hardship payment; and
(d) satisfies the appropriate officer that, by reason of the circumstance in sub-paragraph (c), he is likely to suffer financial hardship.
(3) Every application for a hardship payment must 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 is at the discretion of the appropriate officer, but must 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) A hardship payment must not 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 VAT).
(6) Where the appropriate officer allows a hardship payment under paragraph (1), he must authorise payment accordingly.
(7) Where the application for a hardship payment is made by an advocate other than an instructed advocate, and the appropriate officer allows a hardship payment under paragraph (1)—
(a) payment must be made to the leading instructed advocate or the led instructed advocate, as appropriate; and
(b) the appropriate officer must notify the advocate who made the application that payment has been made to the instructed advocate.
22.—(1) At the conclusion of a case in which one or more payments have been made to an instructed advocate or a litigator under articles 17 to 21, he must submit a claim under article 5 or 6 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 an instructed advocate or litigator under article 5 or 6—
(a) the appropriate officer must deduct the amount of any payment made under articles 17 to 21 in respect of the same case from the amount that would otherwise be payable; and
(b) if the amount of the interim payment is greater than the amount that would otherwise be payable, the appropriate officer may recover the amount of the difference, either by way of repayment by the instructed advocate or litigator or by way of deduction from any other amount that may be due to him.
23.—(1) Having determined the fees payable to each instructed advocate, in accordance with Schedule 1, the appropriate officer must notify each instructed advocate of the fees payable and authorise payment accordingly.
(2) Where, as a result of any redetermination or appeal made or brought pursuant to articles 29 to 31—
(a) the fees payable under paragraph (1) are increased, the appropriate officer must authorise payment of the increase; or
(b) the fees payable under paragraph (1) are decreased, the instructed advocate must repay the amount of such decrease.
(3) Where the payment of any fees of an instructed advocate is ordered under article 30(12) or article 31(8), the appropriate officer must authorise payment.
(4) This article does not apply to a Very High Cost Case which is the subject of an individual contract for the provision of funded services.
24.—(1) Having determined the fees payable to a litigator in accordance with Schedule 2, the appropriate officer must authorise payment accordingly.
(2) Where, as a result of any redetermination or appeal made or brought pursuant to articles 29 to 31—
(a) the fees payable under paragraph (1) are increased, the appropriate officer must authorise payment of the increase; and
(b) the fees payable under paragraph (1) are decreased, the litigator must repay the amount of such decrease.
(3) Where the payment of any fees of the litigator is ordered under article 30(12) or paragraph 14(5) of Schedule 2 or article 31(8), the appropriate officer must authorise payment.
(4) This article does not apply to a Very High Cost Case which is the subject of an individual contract for the provision of funded services.
25. For the purposes of an order which is made under section 17 of the Act, except where the proceedings are in a magistrates’ court only, having determined the fees payable to a representative in accordance with this Order, the appropriate officer must notify the court before which the proceedings are heard of the amount determined.
26.—(1) This article applies where a representative is entitled to be paid a certain sum (“the amount due”) by virtue of the provisions of Schedules 1, 2 or 4 and, for whatever reason, he is paid an amount greater than that sum.
(2) Where this article applies, the appropriate officer may—
(a) require immediate repayment of the amount in excess of the amount due (“the excess amount”) and the representative must 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 Schedules 1, 2 or 4.
(3) The appropriate officer may proceed under paragraph (2)(b) without first proceeding under paragraph (2)(a).
(4) Paragraph (2) applies notwithstanding that the representative to whom the excess amount was paid is exercising, or may exercise, a right under articles 29 to 31.
27.—(1) Where in any proceedings to which Schedule 1, 2, 3 or 4 applies, the court makes adverse observations concerning a representative’s conduct of the proceedings, the appropriate officer may reduce any fee which would otherwise be payable in accordance with Schedule 1, 2, 3 or 4 by such proportion as he considers reasonable.
(2) Before reducing the fee payable to a representative in accordance with the provisions of paragraph (1), the appropriate officer must give the representative the opportunity to make representations about whether it is appropriate to reduce the fee and the extent to which the fee should be reduced.
28.—(1) Subject to 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(12) (costs against legal representatives etc.), the appropriate officer, in determining fees in respect of work done by the representative against whom the wasted costs order was made, may deduct the amount in the wasted costs order from the amount otherwise payable in accordance with this Order.
(2) Where the appropriate officer, in accordance with this article, is minded to disallow any amount of a claim for work done to which the wasted costs order relates, he must disallow that amount or the amount of the wasted costs order, whichever is the greater.
29.—(1) Where—
(a) an advocate in proceedings in the Crown Court is dissatisfied with the decision not to allow any 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 14 of Schedule 1; or
(ii) a wasted preparation fee under paragraph 15 of Schedule 1; or
(b) an instructed advocate in proceedings in the Crown Court is dissatisfied with—
(i) the decision not to allow an hourly fee in respect of attendance at conferences or views at the scene of the alleged offence under paragraph 16 of Schedule 1, or with the number of hours allowed in the calculation of such a fee;
(ii) the calculation by the appropriate officer of the fee payable to the instructed advocate in accordance with Schedule 1; or
(iii) the decision of the appropriate officer under paragraph 3(3) of Schedule 1 (reclassification of an offence not specifically listed in the relevant Table of Offences and so deemed to fall within Class H); or
(c) a litigator is dissatisfied with—
(i) the fees determined in accordance with Part 1 of Schedule 2; or
(ii) the decision to allow standard fees in accordance with Part 2 of Schedule 2,
the advocate, instructed advocate or litigator, as the case may be, may apply to the appropriate officer to redetermine those fees, to review that decision or to reclassify the offence, as appropriate.
(2) An application under paragraph (1) may not challenge the quantum of—
(a) any of the fixed or graduated fees set out in Schedule 1; or
(b) the standard fees set out in Part 2 of Schedule 2.
(3) Subject to article 32, an application under paragraph (1), or paragraph 15(1) of Schedule 4, must be made—
(a) within 21 days of the receipt of notification of the fees payable under article 23, article 24 or paragraph 15 of Schedule 4, as appropriate;
(b) 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
(c) in such form and manner as the appropriate officer may direct.
(4) The notice of application must be accompanied by the information and documents supplied under article 5, article 6 or Schedule 4, as appropriate.
(5) The notice of application must state whether the applicant wishes to appear or to be represented and, if the applicant so wishes, the appropriate officer must notify the applicant of the hearing date and time.
(6) The applicant must supply such further information and documents as the appropriate officer may require.
(7) The appropriate officer must, in the light of the objections made by the applicant or on his behalf—
(a) redetermine the fees, whether by way of confirmation, or increase or decrease in the amount previously determined;
(b) review the decision to allow standard fees under Part 2 of Schedule 2, and confirm it, or allow fees in accordance with paragraph 8(1) of Schedule 2;
(c) confirm the classification of the offence within Class H; or
(d) reclassify the offence,
as the case may be, and must notify the applicant of his decision.
(8) Where the applicant so requests, the appropriate officer must give reasons in writing for his decision.
(9) Subject to article 32, any request under paragraph (8) must be made within 21 days of receiving notification of the appropriate officer’s decision under paragraph (7).
30.—(1) Where the appropriate officer has given his reasons for his decision under article 29(8), a representative who is dissatisfied with that decision may appeal to a Costs Judge.
(2) Subject to article 32, an appeal under paragraph (1) or paragraph 15(2) of Schedule 4 must 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 must send a copy of any notice of appeal given under paragraph (2) to the appropriate officer.
(4) The notice of appeal must be accompanied by—
(a) a copy of any written representations given under article 29(3);
(b) the appropriate officer’s reasons for his decision given under article 29(8); and
(c) the information and documents supplied to the appropriate officer under article 29.
(5) The notice of appeal must—
(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 must, 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 must inform the Senior Costs Judge and the appellant.
(8) Any written representations made on behalf of the Lord Chancellor under paragraph (7) must be sent to the Senior Costs Judge and the appellant and, in the case of oral representations, the Senior Costs Judge and the appellant must be informed of the grounds on which such representations will be made.
(9) The appellant must be permitted a reasonable opportunity to make representations in reply.
(10) The Costs Judge must inform the appellant (or the person representing him) 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 article, 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 may be received on the hearing of the appeal and no ground of objection may be raised which was not raised under article 29.
(12) The Costs Judge has the same powers as the appropriate officer under this Order and, in the exercise of such powers, may alter the redetermination of the appropriate officer in respect of any sum allowed, whether by increase or decrease, as he thinks fit.
(13) The Costs Judge must communicate his decision and the reasons for it in writing to the appellant, the Lord Chancellor and the appropriate officer.
(14) Where he increases the sums redetermined under article 29, the Costs Judge may allow the appellant a sum in respect of part or all of any reasonable costs incurred by him in connection with the appeal (including any fee payable in respect of an appeal).
(15) In proceedings in which standard fees are payable to litigators in accordance with Part 2 of Schedule 2, the provisions of paragraph 14 of Schedule 2 apply.
31.—(1) A representative who is dissatisfied with the decision of a Costs Judge on an appeal under article 30 may apply to a Costs Judge to certify a point of principle of general importance.
(2) Subject to article 32, an application under paragraph (1) or paragraph 15(3) of Schedule 4 must be made within 21 days of receiving notification of a Costs Judge’s decision under article 30(13).
(3) Where a Costs Judge certifies a point of principle of general importance the appellant may appeal to the High Court against the decision of a Costs Judge on an appeal under article 30, and the Lord Chancellor must be a respondent to such an appeal.
(4) Subject to article 32, an appeal under paragraph (3) must be instituted within 21 days of receiving notification of a Costs Judge’s certificate under paragraph (1).
(5) Where the Lord Chancellor is dissatisfied with the decision of a Costs Judge on an appeal under article 30, he may, if no appeal has been made by an appellant under paragraph (3), appeal to the High Court against that decision, and the appellant must be a respondent to the appeal.
(6) Subject to article 32, an appeal under paragraph (5) must be instituted within 21 days of receiving notification of the Costs Judge’s decision under article 30(13).
(7) An appeal under paragraph (3) or (5) must—
(a) be brought in the Queen’s Bench Division;
(b) subject to paragraph (4), follow the procedure set out in Part 52 of the Civil Procedure Rules 1998(13); and
(c) be heard and determined by a single judge whose decision will be final.
(8) The judge has the same powers as the appropriate officer and a Costs Judge under this Order and may reverse, affirm or amend the decision appealed against or make such other order as he thinks fit.
32.—(1) Subject to paragraph (2), the time limit within which any act is required or authorised to be done under this Order may, for good reason, be extended—
(a) in the case of acts required or authorised to be done under article 30 or 31, 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 article, 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 must consider whether it is reasonable in the circumstances to reduce the fees payable to the representative under articles 5, 6 or 8, provided that the fees must not be reduced unless the representative has been allowed a reasonable opportunity to show cause orally or in writing why the fees should not be reduced.
(3) A representative may appeal to a Costs Judge against a decision made under this article by an appropriate officer and such an appeal must 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.
33. Subject to article 4, the Criminal Defence Service (Funding) Order 2001 is revoked.
Signed by authority of the Lord Chancellor
Vera Baird,
Parliamentary Under Secretary of State
Department for Constitutional Affairs
3rd April 2007
1985 c.23. Section 19A was inserted by s.111 of the Courts and Legal Services Act 1990 (c.41). Back [12]
S.I. 1998/3132. There are relevant amendments in S.I. 2000/221, 2003/2113, 2003/3361, 2004/2072, 2005/3515, 2006/1689 and 2006/3435. Back [13]