The Criminal Defence Service (Funding) Order 2007

Citation and commencement

1.  This Order may be cited as the Criminal Defence Service (Funding) Order 2007 and shall come into force on 30th April 2007.

Interpretation

2.  In this Order—

“the Act” means the Access to Justice Act 1999;

“advocate” means a barrister, a solicitor advocate or a solicitor who is exercising their automatic rights of audience in the Crown Court;

“appropriate officer” means—

(a)

in the case of proceedings in the civil division of the Court of Appeal, the head of the civil appeals office;

(b)

in the case of proceedings in the criminal division of the Court of Appeal, the registrar;

(c)

in the case of proceedings in the Crown Court, the Commission;

(d)

in respect of advice or assistance as to an appeal from the Crown Court to the Court of Appeal, (except in the case of an appeal under section 9(11) of the Criminal Justice Act 1987(1)(preparatory hearings)) where, on the advice of any representative instructed, notice of appeal is given, or application for leave to appeal is made, whether or not such appeal is later abandoned, the registrar;

(e)

in respect of advice or assistance as to an appeal to the Courts-Martial Appeal Court, the registrar;

(f)

in respect of advice or assistance as to an appeal from the Court of Appeal to the House of Lords, where the appeal is not lodged with the House of Lords, the registrar; and

(g)

in any other case, the Commission,

and, in any case, includes an officer designated by the appropriate officer to act on his behalf for the purposes of this Order;

“assisted person” means a person in receipt of funded services;

“CDS Regulations” means the Criminal Defence Service (General) (No.2) Regulations 2001(2);

“class 1 offence”, “class 2 offence” and “class 3 offence” have the meanings given in paragraph III.21.1 of the Practice Direction (Criminal Proceedings: Consolidation)(3);

“the Commission” means the Legal Services Commission established under section 1 of the Act;

“fee earner” means a litigator, or person employed by a litigator, who undertakes work on a case;

“funded services” means services which are provided directly for an individual and funded for that individual as part of the Criminal Defence Service under sections 12 to 18 of the Act;

“instructed advocate” means

(a)

where a representation order provides for a single advocate, the first barrister or solicitor advocate instructed in the case, who has primary responsibility for the case; or

(b)

where a representation order provides for more than one advocate, each of—

(i)

the leading instructed advocate; and

(ii)

the led instructed advocate;

“leading instructed advocate” means the first leading barrister or solicitor advocate instructed in the case, who has primary responsibility for those aspects of a case undertaken by a leading advocate;

“led instructed advocate” means the first led barrister or solicitor advocate instructed in the case, who has primary responsibility for those aspects of the case undertaken by a led advocate;

“litigator” means the person named on the representation order as representing an assisted person, being a solicitor, firm of solicitors or other appropriately qualified person;

“registrar” means the registrar of criminal appeals;

“related proceedings” means—

(a)

two or more sets of proceedings involving the same defendant which are prepared, heard or dealt with together; or

(b)

proceedings involving more than one defendant which arise out of the same incident, so that the defendants are charged, tried or disposed of together;

“representation order” means a document granting a right to representation;

“representative” means a litigator or an advocate, including, where appropriate, an instructed advocate;

“senior solicitor” means a solicitor who, in the judgement of the appropriate officer, has the skill, knowledge and experience to deal with the most difficult and complex cases;

“solicitor advocate” means a solicitor who has obtained a higher courts advocacy qualification in accordance with regulations and rules of conduct of the Law Society;

“solicitor, legal executive or fee earner of equivalent experience” means a solicitor, Fellow of the Institute of Legal Executives or equivalent senior fee earner who, in the judgement of the appropriate officer, has good knowledge and experience of the conduct of criminal cases;

“trainee solicitor or fee earner of equivalent experience” means a trainee solicitor or other fee earner who is not a Fellow of the Institute of Legal Executives, who, in the judgement of the appropriate officer, carries out the routine work on a case; and

“Very High Cost Case” is a Crown Court case where if the case proceeds to trial, that trial would be likely to last for 41 days or longer, and any question as to whether the case fulfils this criterion must be determined by the Commission.

Scope

3.—(1) Article 10 of this Order applies to proceedings in magistrates’ courts only.

(2) Article 12 of this Order applies to proceedings in magistrates’ courts and to proceedings in the Crown Court.

(3) Articles 5, 6, 14 to 24, and 29 to 31 of, and Schedules 1 and 2 to, this Order apply to proceedings in the Crown Court only.

(4) Articles 4, 7, 11, 13, 25 to 28 and 32 of, and Schedule 3 to, this Order apply to proceedings in the Crown Court and to proceedings in the Court of Appeal.

(5) Article 8 of, and Schedule 4 to, this Order apply to proceedings in the Court of Appeal only.

(6) Article 9 of this Order applies to proceedings in the House of Lords only.

(7) For the purpose of this Order any reference to the Court of Appeal includes a reference to—

(a) the criminal division of the Court of Appeal;

(b) the civil division of the Court of Appeal;

(c) the Courts-Martial Appeal Court; and

(d) a Divisional Court of the High Court.

Funding of Services

4.—(1) Where a representation order is granted on or after 30th April 2007 for proceedings in the Crown Court or Court of Appeal—

(a) the Commission must fund representation in accordance with its duty under section 14(1) of the Act; and

(b) the provisions of this Order apply.

(2) Where a representation order is granted on or after 1st April 2003, but before 30th April 2007 for proceedings in the Crown Court or the Court of Appeal—

(a) the Commission must fund representation in accordance with its duty under section 14(1) of the Act; and

(b) the provisions of the Criminal Defence Service (Funding) Order 2001(4) apply.

(3) Where a representation order is granted before 1st April 2003 for—

(a) criminal proceedings in the House of Lords;

(b) proceedings in the Court of Appeal; or

(c) proceedings in the Crown Court,

the duty of the Commission under section 14(1) of the Act has effect as a duty of the Lord Chancellor and the provisions of the Criminal Defence Service (Funding) Order 2001 apply.

(4) Where a representation order is granted before 1st April 2003 for—

(a) any proceedings in the Crown Court which are prescribed under section 12(2)(g) of the Act;

(b) any Very High Cost Case which is the subject of an individual contract for the provision of funded services; or

(c) any proceedings in which representation is provided by a person employed by the Commission for that purpose,

the Commission must fund representation in accordance with its duty under section 14(1) of the Act and the provisions of the Criminal Defence Service (Funding) Order 2001 apply.

Claims for fees by advocates – Crown Court

5.—(1) Claims for fees by an instructed advocate in proceedings in the Crown Court must be made and determined in accordance with the provisions of Schedule 1 to this Order.

(2) A claim for fees under this article and Schedule 1 must be made by each instructed advocate.

(3) Subject to article 32, a claim by an instructed advocate for fees in respect of work done under a representation order must not be entertained unless he submits it within three months of the conclusion of the proceedings to which it relates.

(4) An instructed advocate must submit a claim for fees to the appropriate officer in such form and manner as he may direct.

(5) An instructed advocate must supply such further information and documents as the appropriate officer may require.

(6) Where a confiscation hearing under Part 2 of the Proceeds of Crime Act 2002(5) (Confiscation: England and Wales), section 2 of the Drug Trafficking Act 1994(6) (confiscation orders) or section 71 of the Criminal Justice Act 1988(7) (confiscation orders) is to be held more than 28 days after—

(a) the conclusion of the trial to which the representation order relates; or

(b) the entering of a guilty plea,

an instructed advocate may submit any claim for fees in respect of the trial or guilty plea as soon as the trial has concluded or the guilty plea has been entered.

(7) Where a representation order provides for representation by—

(a) a single advocate other than a QC, and a QC agrees to appear as the single advocate; or

(b) two or more advocates other than QC, and a QC agrees to appear as a leading junior,

that QC must be treated for all the purposes of this Order as having been instructed under that representation order, and his remuneration must be determined as if he were not a QC.

(8) 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.

Claims for fees and disbursements by litigators – Crown Court

6.—(1) Claims for fees by litigators in proceedings in the Crown Court must be made and determined in accordance with the provisions of Schedule 2 to this Order.

(2) Claims for disbursements by litigators in proceedings in the Crown Court must be made and determined in accordance with the provisions of articles 14 to 16.

(3) Subject to article 32, a claim by a litigator for fees in respect of work done under a representation order must not be entertained unless he submits it within three months of the conclusion of the proceedings to which it relates.

(4) Subject to paragraph (5), a claim for fees in proceedings in the Crown Court must be submitted to the appropriate officer in such form and manner as he may direct and must be accompanied by the representation order and any receipts or other documents in support of any disbursement claimed.

(5) A claim must—

(a) summarise the items of work done by a fee earner in respect of which fees are claimed according to the classes specified in paragraph 2(1) of Schedule 2;

(b) state, where appropriate, the dates on which the items of work were done, the time taken, the sums claimed and whether the work was done for more than one assisted person;

(c) specify, where appropriate, the level of fee earner who undertook each of the items of work claimed; and

(d) give particulars of any work done in relation to more than one indictment or a retrial.

(6) Where the litigator claims that paragraph 6(1) of Schedule 2 applies in relation to an item of work, he must give full particulars in support of his claim.

(7) The litigator must specify any special circumstances which the litigator considers should be drawn to the attention of the appropriate officer.

(8) The litigator must supply such further information and documents as the appropriate officer may require.

(9) 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.

Very High Cost Cases

7.  Where services are provided in a Very High Cost Case which is the subject of an individual contract for the provision of funded services—

(a) the provisions of Schedule 3 to this Order apply; and

(b) fees for that case must be paid—

(i) in accordance with the terms of the individual contract; and

(ii) at rates no higher than those set out for the appropriate category and the appropriate level of representative set out in Schedule 3.

Proceedings in the Court of Appeal

8.  Claims for fees by representatives in proceedings in the Court of Appeal must be made and determined in accordance with the provisions of Schedule 4 to this Order.

Proceedings in the House of Lords

9.—(1) In proceedings in the House of Lords, the fees payable to a representative under sections 13 or 14 of the Act must be determined by such officer as may be prescribed by order of the House of Lords.

(2) Subject to paragraph (1), this Order does not apply to proceedings in the House of Lords.

The General Criminal Contract

10.—(1) Where the Commission funds services as part of the Criminal Defence Service under section 13(2)(a) or 14(2)(a) of the Act, remuneration must be at rates no higher than those set out in Part E of the Specification to the General Criminal Contract, published by the Commission in February 2001, as amended(8).

(2) Paragraph (1) does not apply to a Very High Cost Case which is the subject of an individual contract for the provision of funded services.

Payments from other sources

11.  Where a representation order has been made in respect of any proceedings, the representative, whether acting under a representation order or otherwise, must not receive or be a party to the making of any payment for work done in connection with those proceedings, except such payments as may be made—

(a) by the Lord Chancellor or the Commission; or

(b) in respect of any expenses or fees incurred in—

(i) preparing, obtaining or considering any report, opinion or further evidence, whether provided by an expert witness or otherwise; or

(ii) obtaining any transcripts or recordings,

where an application under CDS Regulations for an authority to incur such fees or expenses has been refused by a committee appointed under arrangements made by the Commission to deal with, amongst other things, appeals of, or review of, assessment of costs.

Indictable-only offences

12.—(1) Where a case is sent for trial to the Crown Court under section 51 of the Crime and Disorder Act 1998(9) (No committal proceedings for indictable-only offences), any fees in relation to work carried out in the magistrates’ court must be assessed and paid—

(a) at the same time as the Crown Court fees for that case; and

(b) at the rate set out in the General Criminal Contract, published by the Commission in February 2001, as amended, as appropriate to that category of work.

(2) Paragraph (1) does not apply where the case is remitted to a magistrates’ court.

Proceedings for contempt

13.—(1) Where representation is provided in proceedings referred to in section 12(2)(f) of the Act (proceedings for contempt in the face of a court), the Commission may only fund services as part of the Criminal Defence Service under section 13(2)(b) or 14(2)(b) of the Act.

(2) The provisions of Schedules 1, 2, 3 and 4 do not apply to proceedings referred to in section 12(2)(f) of the Act.

(3) Subject to paragraphs (4) to (11), remuneration for advocates in proceedings referred to in section 12(2)(f) of the Act must be at the rates specified in the table following this paragraph.

Category of advocate	Payment rates (£ per day)
QC	300
Leading junior	225
Led junior or junior acting alone	150

(4) Where an advocate and a litigator are instructed in proceedings referred to in section 12(2)(f) of the Act, remuneration must be at the rates specified in the table following this paragraph, as appropriate to the category of advocate.

Category of advocate	Advocate’s payment rates(£ per day)	Litigator’s payment rates (£ per day)
QC	175	125
Leading junior	125	100
Led junior or junior acting alone	100	50

(5) A litigator, or, in the Court of Appeal, an advocate, may, where he claims remuneration for work done in respect of proceedings referred to in section 12(2)(f) of the Act, claim that there are exceptional circumstances which justify remuneration greater than the standard fee specified in paragraph (3) or paragraph (4).

(6) If the appropriate officer considers that there are such exceptional circumstances, he may allow the litigator, or, in the Court of Appeal, the advocate, such fee as appears to him to be reasonable (having regard to the standard fee) for such work as appears to him to have been reasonably done.

(7) If the appropriate officer considers that there are no such exceptional circumstances, the standard fee must apply.

(8) The fee payable to a litigator under this article must not exceed the rates set out in Schedule 2 as appropriate to the type of work, the court in which the proceedings took place, the grade and the situation of the office of the fee earner who did the work.

(9) In the application of paragraph (8), the rates appropriate to the Crown Court shall apply to proceedings in all courts other than a magistrates’ court.

(10) The fee payable to an advocate in the Court of Appeal under this article must not exceed the maximum basic fee for a junior counsel set out in the Table following paragraph 10 of Schedule 4.

(11) The provisions of articles 5, 6, 19, 23, 24, 29, 30 and 31 apply with the necessary modifications to the remuneration payable to a representative under this article.

Interim payment of disbursements

14.—(1) A litigator may submit a claim to the appropriate officer for payment of a disbursement for which he has incurred liability in proceedings in the Crown Court in accordance with the provisions of this article.

(2) A claim for payment under paragraph (1) may be made where—

(a) a litigator has obtained prior authority to incur expenditure of £100 or more under CDS Regulations; and

(b) he has incurred such a liability.

(3) Without prejudice to articles 16(4) and 16(5) a claim for payment under paragraph (1) must not exceed the maximum amount authorised under the prior authority.

(4) A claim for payment under paragraph (1) may be made at any time before the litigator submits a claim for fees under article 6.

(5) A claim for payment under paragraph (1) must be submitted to the appropriate officer in such form and manner as he may direct and must be accompanied by the authority to incur expenditure and any invoices or other documents in support of the claim.

(6) The appropriate officer must allow the disbursement subject to the limit in paragraph (3) if it appears to have been reasonably incurred in accordance with the prior authority.

(7) Where the appropriate officer allows the disbursement, he must notify the litigator and, where the disbursement includes the fees or charges of any person, that person, of the amount payable, and must authorise payment to the litigator accordingly.

(8) Articles 29 to 31 do not apply to a payment under this article.

Interim disbursements and final determination of fees

15.—(1) On a final determination of fees, articles 6(2) and 16 apply notwithstanding that a payment has been made under article 14.

(2) Where the amount found to be due under article 16 in respect of a disbursement is less than the amount paid under article 14 (“the interim payment”), the appropriate officer must deduct the difference from the sum otherwise payable to the litigator on the determination of fees, and where the amount due under article 16 exceeds the interim payment, the appropriate officer must add the difference to the amount otherwise payable to the litigator.

Determination of litigators’ disbursements

16.—(1) Subject to paragraphs (2) to (5), the appropriate officer must allow such disbursements claimed under article 6(2) as appear to him to have been reasonably incurred.

(2) If the disbursements claimed are abnormally large by reason of the distance of the court or the assisted person’s residence or both from the litigator’s place of business, the appropriate officer may limit reimbursement of the disbursements to what otherwise would, having regard to all the circumstances, be a reasonable amount.

(3) No question as to the propriety of any step or act in relation to which prior authority has been obtained under CDS Regulations may be raised on any determination of disbursements, unless the litigator knew or ought reasonably to have known that the purpose for which the authority was given had failed or had become irrelevant or unnecessary before the disbursements were incurred.

(4) Where disbursements are reasonably incurred in accordance with and subject to the limit imposed by a prior authority given under CDS Regulations, no question may be raised on any determination of fees as to the amount of the payment to be allowed for the step or act in relation to which the authority was given.

(5) Where disbursements are incurred in taking any steps or doing any act for which authority may be given under CDS Regulations, without such authority having been given or in excess of any fee so authorised, payment in respect of those disbursements may nevertheless be allowed on a determination of disbursements payable under article 6.

Interim payments in cases awaiting determination of fees

17.—(1) The appropriate officer must make an interim payment in respect of a claim for fees in proceedings in the Crown Court in accordance with this article.

(2) Entitlement to a payment arises in respect of a claim for fees—

(a) in the case of an instructed advocate, where the graduated fee claimed in accordance with Schedule 1 is £4,000 or more (exclusive of VAT);

(b) in the case of a litigator, where the total fees claimed in accordance with Schedule 2 are £4,000 or more (exclusive of VAT); and

(c) in the case of a litigator or an instructed advocate, where the claim for fees is for less than the amounts mentioned in (a) or (b) but is related to any claim for fees falling under (a) or (b).

(3) For the purposes of this article, the following claims for fees are related to each other —

(a) the claims of representatives acting in the same proceedings for a defendant; and

(b) the claims of any representative acting for any assisted person in related proceedings.

(4) Entitlement to a payment under paragraph (1) does not arise until three months have elapsed from the earlier of—

(a) the date on which the claim for fees is received by the appropriate officer for determination, except that where there are related claims for fees, the date on which the last claim is received by the appropriate officer; or

(b) three months after the conclusion of the last of any related proceedings.

(5) A litigator or an instructed advocate may submit a claim for an interim payment under this article where—

(a) no payment has been made under paragraph (1); and

(b) six months have elapsed from the conclusion of the proceedings against the assisted person.

(6) Subject to article 32, payment must not be made under this article unless the representative has submitted a claim for fees in accordance with article 5(3) or article 6(3), as appropriate.

Amount of interim payments in cases awaiting determination of fees

18.—(1) Where entitlement to an interim payment arises under article 17, the amount payable is 40 per cent of the total claim for fees, less any sum already paid.

(2) Articles 29 to 31 do not apply to an interim payment under this article.

Staged payments in long Crown Court proceedings

19.—(1) A litigator or an instructed advocate may submit a claim to the appropriate officer for a staged payment of his fees in relation to proceedings in the Crown Court.

(2) Where a claim is submitted in accordance with this article, a staged payment must be allowed where the appropriate officer is satisfied—

(a) that the claim relates to fees for a period of preparation of 100 hours or more, for which the litigator or instructed advocate will, subject to final determination of the fees payable, be entitled to be paid in accordance with Schedule 1 or Schedule 2, as appropriate; and

(b) that the period from committal, transfer or sending for trial (or from the date of the representation order, if later) to the conclusion of the Crown Court proceedings is likely to exceed 12 months, having regard, amongst other matters, to the number of defendants, the anticipated pleas and the weight and complexity of the case.

(3) In this article “preparation” means—

(a) in the case of advocates—

(i) reading the papers in the case;

(ii) contact with prosecutors;

(iii) written or oral advice on plea;

(iv) researching the law, preparation for examination of witnesses and preparation of oral submissions;

(v) viewing exhibits or undisclosed material at police stations;

(vi) written advice on evidence;

(vii) preparation of written submissions, notices or other documents for use at the trial; and

(viii) attendance at views at the scene of the alleged offence; and

(b) in the case of litigators—

(i) taking instructions;

(ii) interviewing witnesses;

(iii) ascertaining the prosecution case;

(iv) advising on plea and mode of trial;

(v) preparing and perusing documents;

(vi) dealing with letters and telephone calls which are not routine;

(vii) instructing an advocate and expert witnesses; and

(viii) attendance at conferences, consultations and views of the scene of the alleged offence,

and is limited to preparation done before the trial, except in proceedings in which a preparatory hearing has been ordered under section 8 of the Criminal Justice Act 1987 (commencement of trial and arraignment), in which case it is limited to preparation done before the date on which the jury is sworn (or on which it became certain, by reason of pleas of guilty or otherwise, that the matter would not proceed to trial).

(4) The amount allowed for preparation falling within paragraph (3)(a) must be computed by reference to the number of hours of preparation which it appears to the appropriate officer, without prejudice to the final determination of the fees payable, has been reasonably done, multiplied by the hourly rate for special preparation as set out in the table following paragraph 19 of Schedule 1, as appropriate to the category of advocate.

(5) The amount allowed for preparation falling within paragraph (3)(b) must be computed by reference to the number of hours of preparation which it appears to the appropriate officer, without prejudice to the final determination of the fees payable, has been reasonably done, multiplied by the relevant hourly rate prescribed in Part 1 of Schedule 2, as appropriate to the class of work and the grade and office location of the fee earner.

(6) A claim for staged payment of fees under this article must be made to the appropriate officer in such form and manner as he may direct, including such case plan as he may require for the purposes of paragraph (2)(a).

(7) A litigator or instructed advocate may claim further staged payments in accordance with this article in respect of further periods of preparation exceeding 100 hours which were not included in an earlier claim.

(8) Articles 29 to 31 do not apply to a payment under this article.

Interim payments for attendance at trial

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.

Hardship payments

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.

Computation of final claim where an interim payment has been made

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.

Payment of fees to advocates – Crown Court

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.

Payment of fees to litigators – Crown Court

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.

Notification of fees

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.

Recovery of overpayments

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.

Adverse observations

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.

Wasted costs orders

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(10) (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.

Redetermination of fees by appropriate officer

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).

Appeals to a Costs Judge

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.

Appeals to the High Court

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(11); 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.

Time limits

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.

Revocation

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