This week the Legal Aid Agency (LAA) agreed to reverse their original refusal to grant a higher rate for instructing a QC on an ongoing appeal case.

GT Stewart had been arguing for 18 months that an ongoing appeal case merited the use of a QC at the normal higher hourly rate to reflect the exceptional nature of the case. They pointed out to the LAA they had misapplied their internal guidance and that was repeated by the Independent Costs Assessor who failed to apply the test assessing what is ‘exceptional’ set out in R v The Legal Aid Board ex parte RM Broudie & Co [1994].

The LAA and the ICA agreed the case was exceptional in many ways but argued that it was not sufficiently so to justify a higher hourly rate. They pointed out many cases of murder were complicated. This misapplied the Broudie test which requires the notional comparison to be with the generality of criminal cases not murder cases as that would mean it would have to exceptional for an already exceptional case – quite a high, if not impossible bar to clear as pointed out in Broudie by Rose LJ.

The paper application came before Ouseley J who queried the rationale of the LAA’s approach. The claim was due for a hearing this week and on further reflection the Ministry of Justice legal department intervened and agreed to reverse the LAA’s earlier decision and pay the Claimant’s reasonable legal costs of the challenge.

The case was handled by Greg Stewart assisted by Katie Knafler and Rachel Pain from our specialist Appeals & Reviews team. The instructed advocate was Lindsay Johnson from Doughty Street Chambers.

This was an important challenge to establish that the higher hourly rate paid to external advocates in exceptional cases should continue in Criminal Appeals & Reviews cases as it had before.