13.1 Appeals to a Costs Judge and to the High Court

This section deals with appeals pursuant to the Costs in Criminal Cases (General) Regulations 1986, the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989, the Crown Court Rules 1982 and the Criminal Defence Service (Funding) Order 2001 http://www.legislation.hmso.gov.uk/si/si2001/20010855.htm. In this section the term ‘appellant’ refers to the solicitor or counsel who is seeking to appeal against the determination of his fees.

13.2 If the solicitor or counsel is dissatisfied with the determination of costs under the above Regulations they may apply to the appropriate authority for a review of the determination. If still dissatisfied after review and written reasons, the solicitor or counsel may appeal to a Costs Judge of the Supreme Court Costs Office. The notice of appeal must be given within 21 days of receipt of the reasons for the decision, except under rules 16 and 17 of the Crown Court Rules where the period is 14 days. The Costs Judge may for good reason, extend the time.

13.3 The notice of appeal should be in Form A set out in Appendix 3 to the Practice Direction http://www.courtservice.gov.uk/cms/media/costs_pd_180504.pdf (adapted where appropriate) and should list, in separate numbered paragraphs, each fee or item of costs or disbursement in respect of which the appeal is brought, and, in every case, should show the amount claimed for the item, the amount determined and the grounds of objection to the decision on the assessment or determination.

13.4 The appellant must provide detailed grounds of objection in respect of each item and it is not sufficient to refer to accompanying or preceding correspondence or documents. Mere reference to such documents may well result in any appeal being dismissed.

13.5 The appeal must be accompanied by a cheque for the appropriate fee (currently £100) made payable to ‘HM Paymaster General’. The notice must state whether the appellant wishes to appear or to be represented or whether he will accept a decision given in his absence on the papers.

13.6 The following documents should be forwarded with the notice of appeal:

(a) a legible copy of the bill of costs (with any supporting submissions) showing the allowance made;

(b) the advocate’s fee note, together with any note or memorandum by the advocate submitted to the determining authority;

(c) a copy of the original determination of costs and a copy of the redetermination;

(d) a copy of the appellant’s representations made to the determining authority when seeking the determination;

(e) the written reasons of the Determining Officer;

(f) a copy of the representation order and any relevant prior authority given under the appropriate Regulations.

13.7 Supporting papers

Appellants who do not intend to appear at the hearing of their appeal should lodge all relevant supporting papers at the same time as the documents listed in the preceding section but those who do wish to attend should not lodge their supporting papers until directed to do so by the Supreme Court Costs Office. The duty is on the person appealing, even though the documents required may be in the possession of the Crown Court or other persons. Failure to provide the relevant papers may result in dismissal of the appeal.

13.8 Delays in counsel’s appeals can be avoided where, immediately on lodging with the court a request for redetermination, counsel’s clerk asks instructing solicitors to retain the relevant papers.

13.9 In complex or multi-handed appeals guidance should be sought from the Clerk of Appeals in the Supreme Court Costs Office before lodging large volumes of papers to avoid duplication and unnecessary reading by the Costs Judge.

13.10 Time limits

Appellants who consider they will be unlikely to lodge an appeal within the time limits should make an application to the Supreme Court Costs Office prior to the expiry of the time limit, seeking a reasonable extension, giving brief reasons for the request.

13.11 Permission to appeal out of time is required where the time limit for an appeal has expired and no prior application for an extension of time has been made. Applications for permission to appeal out of time should be in writing setting out all the circumstances.

Such applications will initially be considered by a Costs Judge on the papers but, if refused, the appellant has the right to renew the application at an oral hearing. Such oral hearings should not be necessary where all the relevant information is provided in the written application.

Lodging of appeals should not be held up because certain documents are not immediately available. Rather, an explanation for their non-availability should be lodged at the same time as the documents that are available, together with an undertaking to lodge the missing documents within a specified period, which will not normally exceed 28 days.

13.12 Appeals to the High Court

An appellant wishing to make a further appeal to a High Court Judge, from a decision of a Costs Judge must within 21 days of receiving the written reasons for the Costs Judge’s decision, request him to certify that a point of principle of general importance is involved, and should specify in the request what that point is. No appeal can proceed unless such a certificate is granted. Where a certificate is granted an appeal must be instituted by a claim under CPR Part 8 http://csi01/latestcpr/contents/parts/part08.htm in the Queens Bench Division within 21 days of receipt of the Costs Judge’s certificate, though those periods may be extended by either the Costs Judge or the High Court.

13.13 The claim form under which the appeal is instituted must contain full particulars of the item or items or the amount allowed in respect of which the appeal is brought. Upon issuing the claim form all documents used before the Costs Judge must at the same time be lodged with the clerk of appeals at the Supreme Court Costs Office.

13.14 The claim form should be served in accordance with the provisions of CPR Part 6 http://csi01/latestcpr/contents/parts/part06.htm and its Practice Direction. It is no longer necessary to endorse estimates of the length of hearing on the claim form. The clerk of appeals will obtain from the Judge a date for the hearing and will notify the parties.

13.15 Such appeals are final appeals and will be heard by a Judge of the Queens Bench Division who will normally sit with two assessors, one of whom will be a Costs Judge and the other a practising solicitor or barrister.

13.16 Further guidance on this section can be found in section 31 of the Supreme Court Costs Office Guide published in 2002 (see: www.courtservice.gov.uk).