Law Report: Other side's counsel's fees relevant: Lord Chancellor v Wrigh - Queen's Bench Division (Mr Justice Garland), 21 May 1993

A taxing master is entitled to take prosecuting counsel's fees into account when determining the fees of defence counsel.

Mr Justice Garland dismissed an appeal by the Lord Chancellor from the decision of Master Prince, a taxing master, to increase the respondent's brief fee.

The respondent, Gerard Wright QC, and a junior were instructed to defend a man who, with two others, faced a single count of conspiracy to rob. Witness statements ran to 312 pages with over 100 pages of additional evidence. The interviews amounted to 500 pages. The trial ran for 18 days. The jury could not agree a verdict and there was a retrial which lasted six days.

The respondent claimed a basic fee of pounds 20,000 and refreshers of pounds 400 per day. The appropriate authority determined a fee of pounds 10,500 with refreshers of pounds 360. The respondent sought a redetermination under regulation 14 of the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989 (SI no 343).

The redetermining officer decided that, although the Queen's Counsel for the Crown was allowed a fee of pounds 20,000 with refreshers of pounds 350, and the junior for the Crown received two-thirds of his leader's fee, the fee of pounds 10,500 provided reasonable remuneration. On appeal, Master Prince increased the respondent's brief fee to pounds 15,000.

Richard Drabble (Treasury Solicitor) for the Lord Chancellor; Peter Birts QC (General Council of the Bar) for the respondent.

MR JUSTICE GARLAND said that the regulations did not preclude an appropriate authority, determining officer or taxing master from looking at the fees paid to prosecuting counsel. Prosecuting counsels' fees were part of the material on which the exercise of judicial discretion was based in determining 'reasonable remuneration' or 'a reasonable amount'.

There was no reason why the appropriate authorities, determining officers and taxing master should not know the amount of fees paid to an opposing party provided that they had first assessed a reasonable fee in accordance with the regulations without reference to such fees, and when they were known, to have regard to them and consider whether there was such disparity for which there was no explanation, that it would be fair and reasonable to reconsider their own assessment. They would be astute to remember that prosecution fees were assessed by others in respect of different duties and burdens and take those into account.

The defence here involved a heavy and complex burden, although a somewhat lesser one that than borne by the prosecution. That justified Master Prince's reassessment and he came to a correct answer.