de Courcy v Secretary of State for the Home Department
Citation:  EWHC 3491 (QB)
The appellant ('A') had been the solicitor for the late Mr de Courcy ('C') in relation to an application to the Home Secretary to review the safety of C's convictions in respect of fraudulently inducing the investment of money, forgery, uttering forged documents and perjury. A acted under a legal aid certificate dated 23 August 1994 which was discharged on 2 October 1996. A applied under regulation 5(1) of the Legal Aid in Civil Proceedings (Remuneration) Regulations 1994 for an allowance of a 200% enhancement, the maximum permitted, on the prescribed hourly rates. A submitted that the requisite tests (under regulations 5(1) and 5(3)) were satisfied, namely that the work related to 'exceptionally complex matters', handled with 'exceptional competence or dispatch'. On assessment the costs judge made various disallowances of A's costs including disallowing in full unrecorded 'thinking time' and disallowing in part other unrecorded time. The costs judge held that the 'thinking time' was reflected in the enhancement that he was allowing. The costs judge allowed the 200% enhancement on the work undertaken on documents but did not allow any enhancement on most of the other work.
Allowing the appeal in part, this was a complex matter and an enhancement was justified in principle. If the appeal had been a re-hearing, a maximum enhancement of 150% would have been allowed. It may be that different work in a bill will attract different rates of enhancement. The costs judge erred in not allowing any enhancement in respect of various matters. An enhancement of 100% would be allowed in respect of various other items in particular conferences with counsel, some letters to C, attendances on various experts and some unrecorded time. Once that more substantial allowance was made for enhancement, A was not entitled to recover anything else by way of 'thinking time' and only limited other unrecorded time. The dicta of Walton J in Maltby v D J Freeman  1 WLR 431, 435 E, to the effect that recorded time will in all but the plainest of cases represent an undercharge, should be regarded with considerable caution in the modern context; dicta of Parker J in In re Frascati (2/12/1981), Evans J in Johnson v Reed Corrugated Cases  1 All ER 169, 187, and Brooke J in Brush v Bower, Cotton & Bower (a firm)  1 WLR 1328, 1339-1340 applied.
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