This was a criminal appeal by solicitors who had submitted their bill of costs in which work was claimed at prescribed legal aid rates for grade A fee earner level, which was however accompanied by a letter, which started with the following paragraphs:
‘We are grateful for the kind extension of time granted to submit our bill of costs with the further extension allowing us to send our papers by DX on Monday 22 instant.
Enhancement is respectfully claimed in this case for the following reasons …’
No percentage enhancement however is actually mentioned in either this letter, or of course in the bill.
The Determining Officer refused to allow any enhancement, holding that what he had to consider was the bill and that any accompanying letter was a supporting document not to be read as part of the bill.
The Costs Judge affirmed the decision of the Determining Officer, but granted a certificate to allow the matter to proceed to a final appeal in the High Court.
On the facts the Judge decided the appeal against the solicitors, but he did lay down some general principles to be followed in future cases to ensure that decisions of Determining Officers were not ‘Wednesbury unreasonable’.
He apparently suggested that the Determining Officer could, in a situation such as arose here, either refer the whole bill back to the solicitors to make a proper claim to include enhancement; he could deal with it as if enhancement had been claimed; or he could make reasonable enquiries.
What seems to have been fatal to the solicitors’ appeal in this case is that they neither claimed enhancement in the bill itself, nor did they specify in the accompanying letter what rate of enhancement they were seeking. However in the light of the Judge’s comments summarised above it seems unlikely that this situation will recur.
The Judge made no order as to the costs of the appeal, although the Lord Chancellor’s Department was represented by counsel.
Mr Justice Butterfield sitting without Assessors
 EW Costs 12
England and Wales
Costs, Legal Aid
Updated: 29 April 2022; Ref: scu.185952