10.1 CDS-Funded Costs

A Judge of the Crown Court or Court of Appeal Criminal Division, dealing with proceedings for which CDS Funding has been granted, may make observations for the attention of the appropriate authority, if of the view that work may have been unreasonably done by the funded person’s solicitor or advocate, or that the case may have been conducted unreasonably so as to incur unjustifiable expense, or that costs may have been wasted by failure to conduct the proceedings with reasonable competence or expedition. Such observations should be as precise as possible and identify the item or items which the determining officer should consider with particular care. The precise terms of the observations must be entered on the court record.

10.2 Where a legal representative would be entitled to payment by way of standard fees a trial Judge dissatisfied with the solicitor’s conduct of the case, or for other ‘exceptional’ reasons may under paragraph 1 of Part 2 of Schedule 1 of the Criminal Defence Service (Funding) Order 2001 http://www.legislation.hmso.gov.uk/si/si2001/20010855.htm
direct that the fees should be determined other than as standard fees.

10.3 Where a Judge or court is minded to make such an order, the Judge should not do so without first informing counsel or the solicitor of the precise terms of the proposed order and informing them of their right to make representations to the appropriate authority and to be given a reasonable opportunity to show cause why the observations or directions should not be made. Where the solicitor or counsel wishes to make representations the court must afford them the opportunity to do so.

10.4 Whether or not the Judge or court has made the observations in accordance with paragraph 10.1 above the appropriate authority may consult the Judge or court as to any matter concerning the allowance or disallowance of fees or expenses. If the observations then made are to the effect mentioned in paragraphs 10.1 and 10.2 the solicitor or counsel concerned should be given the opportunity to make representations.

10.5 Very high-cost cases (VHCC)

These are defined in Regulation 2 of the Criminal Defence Service General (No.2) Regulations 2001 http://www.legislation.hmso.gov.uk/si/si2001/20011437.htm
as cases in which:

(a) if the case proceeds to trial, that trial would be likely to last for 25 days or longer; or

(b) the defence costs with regard to any one defendant (or group of defendants represented by the same firm of solicitors) are likely to amount to £150,000 or greater (such sum to include the solicitors fees and disbursements, advocates fees, and VAT).

In every VHCC the Judge or court should, at the first opportunity ask the representative of the CDS-funded person whether they have notified the LSC of the case in accordance with Regulation 23 of the above Regulations. If they have not done so, they should be warned that they may not be able to recover their costs. If the VHCC is one of fraud or serious financial impropriety, the Judge or court should warn the representatives that a case can only be conducted by a firm that is a member of the relevant Specialist Fraud Panel, and that non-panel firms and counsel instructed by such firms may not be able to recover their costs.