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potkettleblack
Hi folks

I have received an assessment back from the National Taxing Team on the expenses I submitted after the case against me was dismissed. They have reduced the claim significantly under the following rationale:

* 9p per sheet for printing is too expensive as photocopying can be purchased for 5p
* the mileage rate for defendents and witnesses is the public transport rate of 25p/mile, not the solicitor rate fo 45p/mile
* some of my trips were not necessary
- the video could have been posted so no need to go see it
- the site could have been visited at first appearance in court
* my claim for PNC Subject Access was after the trial so not applicable

In a surprise move, they accepted my ppp subscriptions. I should have gone for lifetime biggrin.gif

I will be writing back to object of course, but I don't know the legislation or process.
Are the rates set in some legal document, or just an HMCS policy?
They say "Any request for re-determination must be made in accordance with the relevant regulations". Which?
Is there some time limit for objecting?
What is the escalation process?

Cheers.

the1952gunslinger
shame you're not an MP................

bama
from the files
"The principal statutes underlying costs in criminal cases are the Prosecution of Offences Act 1985 (the 1985 Act) and the Access to Justice Act 1999 (the 1999 Act) The Regulations made under the 1985 Act referred to in the text include the Costs in Criminal Cases (General) Regulations 1986 (the General Regulations), which also deal with costs out of Central Funds, allowances to witnesses and related matters. Cases funded out of the Criminal Defence Service Fund are governed by Regulations that include: the Criminal Defence Service Funding Order 2000; the Criminal Defence Service (General) (No.2) Regulations 2001 and the Criminal Defence Service (Recovery of Defence Costs Orders) Regulations 2001. The Practice Direction Costs in Criminal Cases http://www.hmcourts-service.gov.uk/cms/fil...s_pd_180504.pdf made on 18 May 2004 is of central importance."
jeffreyarcher
QUOTE (potkettleblack @ Fri, 18 Dec 2009 - 19:51) *
* 9p per sheet for printing is too expensive as photocopying can be purchased for 5p

AFAIK, the test is not whether you got a good deal, or not, but whether the expenses were actually incurred, and, if so, were they wholly for the instant case.
I can't remember the case, but it was the vexatious litigant (Edwards? or something like that).

QUOTE (potkettleblack @ Fri, 18 Dec 2009 - 19:51) *
- the video could have been posted so no need to go see it

Knowing how difficult it is to get a video out of the scammers at all, is this actually true?
Also see first answer.

QUOTE (potkettleblack @ Fri, 18 Dec 2009 - 19:51) *
- the site could have been visited at first appearance in court

See first answer.
andy_foster
QUOTE (jeffreyarcher @ Sat, 19 Dec 2009 - 03:40) *
I can't remember the case, but it was the vexatious litigant (Edwards? or something like that).


David Edgar?
jeffreyarcher
QUOTE (andy_foster @ Sat, 19 Dec 2009 - 04:40) *
David Edgar?

That's the one. thumbsup.gif

Some good reading there, pkb.

Although not an issue in the case, it would seem that 45p is the correct rate for witnesses(para. 4), so they're wrong on that count.
emanresu
Isn't the test here not whether the Taxing Office is correct in Law but whether they can keep their jobs for a little longer.

If they can create a little more work for themselves far in excess of the savings they can make, their budgets will go up next year. Or at least the cuts won't be as deep.

God, I must have waken jaundiced this morning.
potkettleblack
Fine leads and arguments as always, thank you gents. I too believe that an expense system should be neither profit or loss and apply to expenses specifically incurred for the purpose of ...

I am expecting some rebuttal about the rates for defendents being those for witnesses. I found the main SI and basis for this here:
http://www.hmcourts-service.gov.uk/cms/fil...lations1986.doc
QUOTE
Prosecutors and defendants
23. A person in whose favour an order is made under section 16, 17 or 19(4) of the Act may be allowed the same subsistance allowance and travelling expenses as if he attended as a witness other than a professional or expert witness.
24.(5) A witness who travels to or from court by private vehicle may be allowed an appropriate private vehicle allowance not exceeding the relevant amount.

so if Edgar is the latest authority on 'relevant amount' then I think the 45p point is proven.

Nothing about printing so that seems an open argument.
ford poplar
Fortunately, MPs do not claim expenses but agreed allowances

Dated receipts usually help.
Ask them for the basis of their assessment and rebut if possible
Attending for video viewing is less work/cost for Authority with opportunity for defendent to view relevent original footage in it's entirety.
Info from site visit may have been part of defence for first hearing (case prep time) or needed to be inspected at rel time/similar road conditions.

It would be interesting to see your detailed claim for expenses, inc distance & vehicle type for mileage
potkettleblack
Dated receipts were provided. I did attend to view the video, that's one of the mileage claims they reject as 'it could have been posted'. No response to my rebut as yet. I'll put up the details and arguments when we're finished.

It seems there is some argument for payment of hours spent, and I read cases from circa 2004/5 where £9.25 was paid.
SI 1986/1335:
http://www.hmcourts-service.gov.uk/cms/fil...lations1986.doc
“7(2) In determining costs under paragraph (1) the appropriate authority shall take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved.”

Prosecutors and defendants
“23. A person in whose favour an order is made under section 16, 17 or 19(4) of the Act may be allowed the same subsistence allowance and travelling expenses as if he attended as a witness other than a professional or expert witness.”

A witness is compensated for trouble and loss of time:
“PART V
ALLOWANCES TO WITNESSES

Definitions
15. In this Part of these Regulations—
‘expenses’ include compensation to a witness for his trouble or loss of time and out of pocket expenses;”

I didn't put in any claim for hours but based on the case link posted previously it's maybe current practice not to pay rather than legally defined. Is there a specific case where paying LIP time was overturned?



jeffreyarcher
QUOTE (potkettleblack @ Sat, 9 Jan 2010 - 13:07) *
I didn't put in any claim for hours but based on the case link posted previously it's maybe current practice not to pay rather than legally defined. Is there a specific case where paying LIP time was overturned?

I don't know what case link that you mean, but Edgar (from 2007), which I posted earlier, is quite specific, at 14, 15 & 16. 16 makes the point that he is still not entitled, even if he is his own expert.
potkettleblack
Thanks. I don't know of such a case, but 15 implies there is one:
"There is ample authority for the proposition that a litigant in person in criminal proceedings is not entitled to claim costs in respect of the amount of hours he has expended in labouring to defeat a claim. Harsh though that conclusion may seem, it has now been the authority of this court for many years."
I'm wondering whether a mistake was made in light of the SI quoted. All progress depends upon the unreasonable man.

Putting that aside for a moment, to whom and how do I request a review/appeal? No response to my reminder. It was naive of me to think that NTT would be fair. I was lulled into a false sense of reasonableness by prior emails.
potkettleblack
Hi folks.

What is the process to get an independent arbiter to review defence expenses?

I took my case to court and after several hearings over several years (seriously) it was dismissed. During this time I incurred out of pocket expenses. I put in a reasonable claim for mileage and printing. Because the total was more than £500 the Judge sent me to the National Taxing Team for compensation. They believe the test is whether, in hindsight, they can find a cheaper method. For example rather than paying 15p/sheet for printing, when an independent Kodak report says my printer actually costs 57p/sheet, they want to pay 9p for the first sheet and 5p thereafter, the latter being the cost of a photocopy.

Having spent my 2009 holiday (uncompensated) travelling at the behest of HMCS, I am in no mood to accept this. Has anyone challenged expenses through the courts, and how is it done? We are many months past the hearing now due to NTT delay. Can I make a small claims court claim against NTT?

As things stand, even though I won, the 'fine' against me is many times the fixed penalty notice.

Thanks
desktop_demon
I was relatively lucky with my expenses - NTT didn't query them too much. But a lot of mine were professional expenses. The photocopying i charged a 10p per sheet and they paid those up - but only about 20 quids worth. No money was paid for my time or the cost of my books (Wilkinsons, etc) . I thought they had an internal review process that should be used first. But not sure what to do after that. It seems the government are cracking down on defendants court costs - but not doing so on the CPS costs to prosecute. So as one sided as it ever was.
peterguk
I was going to suggest checking out some posts by jeffreyarcher, but i found your previous thread on costs here:

http://forums.pepipoo.com/index.php?showtopic=47335

which he offered some info. on.
jeffreyarcher
There is no appeal against costs out of the mags., it has to be by JR. What difference it makes since your dispute is with the NTT, I don't know, for certain, but I assume that the JR would be against the NTT, with the mags. as an interested party.
potkettleblack
Oops! duplicate, sorry. Thought the other thread was hidden from me in BBnG.

Thanks JA. I rechecked Edgar and it is a JR. I have asked them their legal basis. I think it will come down to this from SI 1986 1335
QUOTE
Determination of costs
7.- (1) The appropriate authority shall consider the claim, any further particulars, information or documents submitted by the applicant under regulation 6 and shall allow such costs in respect of—

(a) such work as appears to it to have been actually and reasonably done; and

(b) such disbursements as appear to it to have been actually and reasonably incurred,

as it considers reasonably sufficient to compensate, the applicant for any expenses properly incurred by him in the proceedings.

It's that last sentence that I imagine they take as thier remit to make up numbers and what is, that comma doing there?
Also:
QUOTE
(3) When determining costs for the purpose of this regulation, there shall be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts which the appropriate authority may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved against the applicant.


I presume 'reasonable' is the man on the Clapham omnibus test, so we will be debating whether it is reasonable for a LIP to use his own printer, or whether he should just make one copy in the evening then take it all to the photocopy shop the next day.

Also whether it is reasonable to use a private car. Their argument is that because it is possible to use public transport, then a car is unreasonable. When the case started train took an extra 1.5 hours, but in 2008 Virgin opened up their faster service and made the time near quivalent. However the ticket still cost more than the petrol. I would also have to carry 3 bags across London to change trains (files/suit/laptop). In fact my partner came with me for moral support, so the train would have been double, but I doubt there is any allowance for that?
potkettleblack
I think I have found the regulations they are relying upon, from 1988 versus the ones I quoted from 1986.
http://www.opsi.gov.uk/SI/si1988/Uksi_1988...en_2.htm#mdiv10
QUOTE
(3) (b) travel by air was more economical in the circumstances (taking into account any savings of time resulting from the adoption of such mode of travel and its consequent effect in reducing the amount of allowances payable under other provisions of these Regulations).

(5) Where such person travels to or from such place by a private motor vehicle, other than one in respect of which reimbursement under this paragraph is claimed by another person in respect of the same journey, he shall be entitled to be reimbursed in respect thereof —
(a) in a case to which paragraph (6) below applies by payment of mileage at the "standard rate" determined under regulation 5 above and of any parking fee actually and reasonably incurred; and
(b) in any other case, by payment of mileage at the public transport rate' so determined.

(6) This paragraph applies where a journey to or from such place is necessarily undertaken by private motor vehicle or where the use of the vehicle is more economical in the circumstances (taking into account the factors mentioned in parenthesis in paragraph (3)(b) above) or is otherwise reasonable.

The name of this is 'The Crown Prosecution Service (Witnesses' etc. Allowances) Regulations 1988' and there are a couple of points where it states this is on behalf of the persecution
QUOTE
4(1) (b) any other person who, in the opinion of the appropriate officer, necessarily attends court or elsewhere for the purpose of the prosecution case otherwise than to give evidence


So I have a theory that they have conflated expenses for prosecution witnesses, and those for a defendant under SI 1986/1335
QUOTE
Prosecutors and defendants
23. A person in whose favour an order is made under section 16, 17 or 19(4) of the Act may be allowed the same subsistance allowance and travelling expenses as if he attended as a witness other than a professional or expert witness.

My argument is going to be that SI 1986/1335 applies.
I think their argument is going to be that 'as if a witness' incorporates SI 1988/1862 so public transport rate applies.
Anyone care to vote on the outcome?



potkettleblack
Scratch that previous post. Their argument is posted here:
http://www.hmcourts-service.gov.uk/cms/4290.htm#interest

QUOTE
Out of Pocket Expenses

Pursuant to regulation 23 of the Costs in Criminal Cases (General) Regulations 1986:

"A person in whose favour an order is made under section 16, 17, or 19(4) of the Act may be allowed the same subsistence allowance and travelling expenses as if he attended as a witness other than a professional or expert witness."

A loss allowance (regulation 18(1)(a)) including loss of earnings, is excluded by regulation 23 and these are not costs "incurred in carrying on the proceedings" within the terms of regulation 7.

...

As such expenses are dealt with under part V of the regulations, there is no formal appeal process against a determination.

The rates of car mileage allowed (regulation 24(5)) will be those specified in the current Guide to Allowances (regulation 17) i.e a standard rate of 45p per mile and a public transport rate of 25p per mile.

The standard rate of mileage is only paid where the use of a private motor vehicle was necessary (for example because no public transport was available), or where a considerable saving of time is made, or where the use of a private motor vehicle was otherwise reasonable (for example, in the case of elderly or disabled persons, or carrying exhibits). In all other cases the public transport rate of mileage will be applied. Car parking fees actually and reasonably incurred will be allowed, but only where standard rate of mileage has been allowed.


And going back to SI 1986/1335, we have:
QUOTE
17.- The Lord Chancellor shall, with the consent of the Treasury, determine the rates or scales of allowances payable out of central funds to witnesses, interpreters, intermediaries or medical practitioners and a reference in this Part of these Regulations to an allowance not exceeding the relevant amount means an amount calculated in accordance with the rates or scales so determined.


So they are using the Costs SI to point to a second document (link below) that contains the rationale about 2 rates on p16. That document is written by David Carter, Ministry of Justice, Legal Aid Strategy Directorate.

http://www.hmcourts-service.gov.uk/docs/in...ations-1986.pdf

I expect a court will find that this chap had the implied authority of Lord Falconer, the Lord Chancellor in May 07 when the MoJ was formed, or Jack Straw, the Lord Chancellor from Jun 07. But it seems to me he overstepped the mark when he took a task to determine rates or scales, and turned it into an interpretation guide. The effect of this guide is to take private vehicle mileage, a single rate non-contingent on public transport, and turn it into two rates with most people falling into the cheaper category. I think he has changed the nature of the Regulation as passed by Parliament?


potkettleblack
Hi Folks.

I served a letter before action onto NTT for a pending Judicial Review, and boiled the objections down to the following:

1. Printing costs as incurred not at the photocopying rate of 5p/page
2. Mileage as incurred from the defendant’s residence rather than a correspondence address
3. Mileage at the regulation rate of 45p/mile

In their response the following is quoted. Unfortunately I'm down to the wire on timing as I have to get on a plane tomorrow for a week in Germany on business, and I also need the response to go into the post on Monday. This is the first time NTT has identified law to justify their actions. Any assitance with analysis or finding cases gratefully received. I am not being lazy here, I'm just out of time, and I figure this is a 'team' issue getting expenses paid for LIPs help.gif

Here are the legal exerpts:

QUOTE
The test of what is reasonable is that laid down by Sach J in Francis v Francis and Dickerson (1955) 3 AER 836 at 840
"When considering whether the item in a bill is "Proper" - the correct viewpoint to be adopted by the taxing officer is that of a sensible solicitor sitting in his chair and considering in the light of his then knowledge is reasonable in the interests of his lay client.....the lay client.....Should be deemed a man of sufficient means adequate to bear the expense of litigation out of his own pocket - and by, "adequate" I mean neither "barely adequate" or "super-abundant"


Sorry, me no understand English. Is this a test of what is proper, or what is reasonable? The former I think of as a test of the item, the latter of the amount. Why does the ability of the client to pay change the position on what is proper?

QUOTE
A Determining Officers duty in unopposed taxations was laid down by Lord Denning MT in Storer v Wright (19810 2 WLR at 209 and 212

"Seeing that there is no one to oppose, it seems to me that on a legal aid taxation, it is the duty of the taxing officer to bear in mind the public interest. He should himself disallow any item which is unreasonable in amount or unreasonably incurred. In short, whenever it is too high he must tax down. Otherwise the legal aid system could be much abused by solicitors and counsel"
Although the judgement was in relation to a legal aid taxation, the same must be equally applicable to central funds determination, the burden upon the applicant being higher than in legal aid, where any doubts are resolved in favour of the applicant.


I don't see why the burden for a LIP is higher than a legal aid case? Also the expense regulations suggest any doubts are resolved *againt* the applicant?

QUOTE
Mileage can only be paid to the address that the court has as the home address.

The issue being that I gave them a correspondence address 370 miles nearer than where I was living. Anyone got expenses from their home whilst using a solicitor or elsewhere for correspondence? If so please PM me the case reference.

QUOTE
PRINTING COSTS
The National Taxing Team pays photocopying rates of 5 pence per copy.
I was using my printer instead. Anyone got more for printing? If so please PM me the case reference.

This from the NTT manager:
QUOTE
On the first substantive point about mileage rates, it is clear (as has heen recently confirmed by the Costs Judges) that allowances start with public transport rate and that standard rate will not be paid if public transport is "available and reasonably convenient" (R v Slessor) . Reference is made to reg 24(5), then reg 17, then the Guide to Allowances under Part V para 8.1/8.2, and in particular 8.6-8.8 which authoritatively supports the determining officer's position.

This MoJ 'Guide to Allowances', a self serving document for HMCS or something with legal authority?
R v Slessor anyone?

QUOTE
On the second substantive point about printing costs, this is a disbursement claimed under Part III of the regs. Allowance should be no more than commercial cost, but we can show defendants-in-person a bit of flexibility. Would refer to Judge Hallet's case of Landau & Cohen to justify the allowance at commercial rates only.
[1999] 2 CostsLR 5
(1) any specific expenditure in excess
of ordinary overheads can be a
disbursement, (2) in exceptional
circumstances in house photocopying
can be a disbursement, (3)
photocopying should be charged at
commercial rates (4p/page quoted), (4)
a trial judge's recommendation as to
costs could not in any way be binding
on the DO or Master


Once I'd stopped laughing about the claim to show LIPs flexibility... do you agree that
a) prints of law is ordinary overhead for a LIP?
b) in-house photocopying (or printing) is the norm?
Landau & Cohen v Lord Chancellor anyone?


Thanks for any help.
potkettleblack
My application for permission for Judicial Review has been approved, in only a week. The form to submit is attached, along with my Grounds argument. The full document bundle with copies needs to be submitted with the permissions form. Oh, the irony that I had to send a £50 cheque to HMCS for the permission and now another £180 for the application.
potkettleblack
Well, they folded biggrin.gif

It just goes to show that all you need to do to obtain justice is to spend 4 years fighting your case, 1000's hours in research, multiple court appearances, two weeks holiday in travel and attendance, suffer the stresses of plus and minus as the case waxes and wanes, generate the paperwork, write the letters to all, pay the fees, apply to drag their sorry butts infront of a senior Judge in London, and the British Justice System will come good.

The system relies on people giving up, and most would. It's a consideration over a £60 fine and 3 points, but I'm a principled SoB. There is a good degree of satisfaction that every little Napoleon I encountered on the way, from the person who posted the NIP to the person who assessed the expenses, was defeated. And there were many.

For those also arguing costs the legal argument seems quite clear. NTT's defence rests on R v Slessor from 1984 when a Taxing Master decided that the use of private cars is contingent on public transport being unreasonable. Parliament then reset the opinion of the MoJ with the main Statutory Instrument SI 1986/1335, which has no contingency for private cars, just for taxis and air fares. The MoJ then tried it on again with a Guidelines document that re-introduced contingency.


desktop_demon
Good work kettle! I suspect your thread will become a PPP standard reference for LiP costs applications.
The Rookie
Well done PKB, clearly justice hasn't been done in that as an innocent person wrongly accused, you are still worse off, but at least they know they picked on the wrong guy.

I note you mention you still have a 'prosecution pending', perhaps a letter of complaint to the CC of Airsix is now in order.

Simon
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