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SECTION 31  
31.1   Introductory
  
(a)   Costs Judges have jurisdiction to hear appeals from the decisions of Determining Officers of the Crown Court, the Divisional Court of the Queen's Bench Division, the Administrative Court and the Court of Appeal (Criminal Division) in each of the following cases:
  
(i)   Appeals by parties awarded costs out of Central Funds (as to which see the Costs in Criminal Cases (General) Regulations 1986.
(ii)   Appeals by solicitors and advocates entitled to remuneration under the Legal Aid Act 1988 (as to which see the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989).
(iii)   Appeals by solicitors and advocates entitled to remuneration under the Access to Justice Act, 1999 and the Criminal Defence Service (Funding) Order 2001.
(iv)   Appeals by solicitors and advocates entitled to remuneration under the Criminal Procedure Rules 2005 (formerly the Crown Court Rules 1982 Part IV).
(v)   Appeals by litigants in person having the benefit of costs orders under any of the above enactments.
(b)   Under certain agreements made between interested bodies and the Senior Costs Judge, Costs Judges also determine fees payable to prosecution counsel in cases referred to the SCCO by the Crown Prosecution Service, the Serious Fraud Office, the Department of Social Security and H.M. Customs and Excise.
31.2   The Criminal Costs Practice Directionpdp-43
   Detailed guidance as to the SCCO practice on criminal fee appeals and the procedure on further appeals to a High Court Judge is set out in the Practice Direction (Criminal Proceedings: Costs) [2004] 1 WLR 2657; [2004] 2 All ER 1070; [2004] 2 Cr App R395 (the "Criminal Costs Practice Directionpdp-43).
31.3   Nominated Masters
   At present there are five Costs Judges who deal with criminal fee appeals, namely Chief Master Hurst (Senior Costs Judge), Master Rogers, Master Campbell, Master Simons and Master Gordon-Saker.
31.4   The Notice of Appeal
  
(a)   The Notice of Appeal must be in writing and must be lodged with the Clerk of Appeals, together with the fee (currently £100) and the additional material referred to in the Criminal Costs Practice Directionpdp-43 within 21 days of receipt of the reasons given for the decision or within such longer time as the Costs Judge may direct; (under the Criminal Procedure Rules 2005 the period is 14 days). Papers are lodged with the Clerk of Appeals in Room 2.14.
(b)   The Notice of Appeal should follow the Form A in Schedule 3 to the Criminal Costs Practice Directionpdp-43 and illustrated in the Appendix (para A-9, below). It is important that the Notice of Appeal should clearly identify (i) the matters which are being appealed to the Costs Judge and (ii) the amount in dispute in relation to each item.
(c)   Notices of Appeal must be signed by advocates personally or by a partner in the appellant firm of Solicitors.
(d)   It occasionally happens that appellants fail to serve the Determining Officer with a copy of the Notice of Appeal. The Regulations are mandatory in this respect and failure to do so may result in the appeal being dismissed without the merits being considered.
31.5   The Grounds of Appeal
  
(a)   The Grounds of Appeal should correspond with the Notice of Appeal. Points raised in the Notice of Appeal which are not supported by grounds may be dismissed and conversely matters included in the Grounds of Appeal which are not mentioned in the Notice of Appeal may not be separately decided.
(b)   The Grounds of Appeal are an integral part of the Notice of Appeal and should be submitted at the same time. If for some reason the Grounds of Appeal cannot be prepared within the time allowed for lodging Notice of Appeal an application for an extension of time should be made.
(c)   It is important to be both concise and specific in the Grounds of Appeal. Particular attention should be paid to the provisions of the Criminal Costs Practice Directionpdp-43.
(d)   Uncertified decisions of Costs Judges are not binding on Costs Judges or Determining Officers and will rarely if ever be of any assistance.
(e)   Only in exceptional cases will a Costs Judge consider material not before the Determining Officer (leave is required in Schedule 1 to the 2001 Funding Order para 21(11) of Reg. 15(11) of the 1989 Regs; Reg. 9(11) of the 1986 Regs) or Reg 78.5(5) of the Criminal Procedure Rules 2005. Requests to consider such material should always be included in the Notice of Appeal.
31.6   Supplementary Grounds of Appeal
   Occasionally the Determining Officer does not give written Reasons in respect of all matters upon which the appellant wishes to bring before the Costs Judge. In that situation, provided the appellant has raised them at the re-determination stage, and in his/her request for written Reasons, the appellant should ask the Determining Officer for supplementary written Reasons and may then lodge supplementary Grounds of Appeal.
31.7   Lodging of Documents in Support of Appeal
  
(a)   It frequently happens that far more material is lodged in support of the appeal than is either necessary or desirable. For instance in a case of a multi-handed appeal by a number of Counsel it is not normally necessary to lodge more than one set of depositions etc. Liaison between appellants is important.
(b)   Before lodging substantial volumes of papers it is advisable to contact the Clerk of Appeals who will if necessary liaise with the Costs Judge as to what documents are required.
(c)   The relevant documents should be lodged no more than 10 days prior to an oral hearing. In the case of appeals to be dealt with on paper only and without an attendance, all relevant papers should be lodged with the Notice and Grounds of Appeal.
31.8   Appeals on Paper Only
  
(a)   Appeals made on paper only and without an attendance may be dealt with more quickly than appeals dealt with by way of a hearing. All appellants should give careful consideration, at the stage of lodging their appeals, to the question of whether or not they consider it necessary to attend.
(b)   An appellant seeking the costs of an appeal to be dealt with on paper only, should specify the particular sum claimed in a document accompanying the Grounds of Appeal or in a covering letter. If no sum is claimed, the Master will normally only order refund of the appeal fee paid.
31.9   The hearing of an appeal
   All hearings may be attended by the counsel or representatives of the solicitors concerned in the matter or a duly authorised agent on their behalf, who may include another solicitor, another counsel or a costs draftsperson. Such oral hearings are informal and conducted in private. They are seldom of lengthy duration but where an appellant considers that an unusually lengthy hearing is necessary this should be indicated in a covering letter with the Notice and Grounds of Appeal.
31.10   Multi-Handed Appeals
   Wherever possible appeals in relation to the same case by all or many of the advocates and/or solicitors concerned are listed together or at short consecutive intervals on the same day. Where this presents problems to individual appellants, representations should be made to the Clerk of Appeals who will consult the Costs Judge as to whether an exception can be made to this general rule. It may however be possible to hear all the appeals of advocates in one particular case on the same day and all the appeals of solicitors in relation to the same case on another day.
31.11   Appeals by Same Advocate
   Where counsel, particularly from out of London, have a number of separate appeals every effort will be made to list these together to avoid unnecessary journeys.
31.12   Appeals by Telephone or Video Link
   All Costs Judges are prepared to hear criminal appeals by telephone or video link, especially where the sums involved are small or disproportionate to the costs of travel to London. Requests for any such hearing should be made to the Clerk of Appeals when lodging the appeal. Telephone appeals can usually be listed quite quickly but video appeals take longer because of pressure on the limited video facilities in the RCJ.
31.13   Procedure Subsequent to the Appeal
  
(a)   In every case the Regulations require that the Master should give his reasons in writing. There is inevitably a time lag between the oral hearing and the despatch of the written Reasons. Only rarely will the Costs Judge consider material submitted after the hearing.
(b)   A successful appellant is entitled to ask for his costs which are normally assessed by the Costs Judge at the end of the hearing. It is important that any appellant should submit details to the Costs Judge at the hearing of travelling expenses or any unusual expenditure in relation to the appeal.
(c)   In all cases where an appeal is successful the court fee paid (currently £100) is added to the sums allowed, unless the Costs Judge otherwise directs.
31.14   Further Appeal
  
(a)   The Department of Constitutional Affairs has an independent right of appeal against any decisions adverse to the LSC Fund or Central Funds and in those cases no leave from the Costs Judge is required.
(b)   In other cases, whether Central Funds or LSC funded cases, a further, and final, appeal is possible where the Costs Judge has certified that a point of principle of general importance is involved. It is necessary to apply within 21 days of receipt of the Master's written 158 Reasons (14 days in the case of proposed appeals under the Criminal Procedure Rules 2005) for a certificate to be granted by the Costs Judge and, in accordance with the Criminal Costs Practice Directionpdp-43, the form of certificate sought should wherever possible be submitted with the application.
(c)   If the Costs Judge grants a certificate, the appeal lies to a Judge of the High Court, Queen's Bench Division who will normally sit with two assessors one of whom will be another Costs Judge.
(d)   If the Costs Judge refuses a certificate no further appeal is possible.
(e)   The decision of the High Court Judge is final, and no further appeal is permitted.
31.15   Time Limits
  
(a)   The time limits laid down by the Regulations and the Practice Direction should always be complied with. It is not a sufficient reason for granting an extension of time that the Determining Officer has taken many months to produce his or her Written Reasons which are being appealed to the Costs Judge. Further it is not sufficient to justify an extension of time that all the papers needed to support the appeal are not immediately available.
(b)   It not infrequently happens particularly at Christmas, Easter and holiday times that it is difficult to comply with the strict 21 day time limit (14 days in the case of Criminal Procedure Rules 2005 appeals) laid down in the Regulations. In those situations, an appellant should always apply before the relevant time limit expires seeking a short extension and giving grounds in support of that application.
(c)   Where the 21/14 day time limit has expired an application for leave to appeal out of time should be mounted at the first possible opportunity thereafter and should initially be submitted in writing. The letter should always be signed by the appellant, not by his clerk, or 159 another solicitor within his office. It should give a full explanation for the delay and justification advanced for granting leave out of time.
(d)   Such applications are in the first instance dealt with by one of the Costs Judges on the papers. Where such an application is refused the appellant may renew his application by asking for an oral hearing before the Costs Judge. Permission is sometimes granted subject to a percentage penalty reducing the amount of any increase in costs which would otherwise have been obtained on the appeal.
(e)   Where such oral hearings take place the Costs Judge will try to dispose of the substantive appeal immediately after the leave application. Those attending such applications should come prepared to address the merits of the substantive appeal, having lodged all the relevant papers. An additional fee of £100 is payable, where such leave is granted.
31.16   Divisional Court/Administrative Court Central Funds Assessments
   All such determinations are currently dealt with by Costs Judge Rogers. He is treated as the Determining Officer in accordance with the 1986 Regulations. A dissatisfied party may ask him to redetermine those costs and thereafter to give his written reasons. Any party still dissatisfied may then appeal to the Senior Costs Judge who will follow the same procedure as in an appeal from a Determining Officer in the Crown Court or Court of Appeal. 160