R v Hugo Pires

Background and Submissions

1. The Defendant was charged on four counts including murder, manslaughter, burglary and fraud.

2. The hearing of this appeal proceeded in the absence of a Respondent advocate after the Legal Aid Agency confirmed they were content to rely on the determining officer’s written reasons only.

3. The litigator Appellant is represented by Ms Krudy, Solicitor Advocate, who relies on the Appellant’s Form A and additional submissions document filed on 24 March 2025. That document sets out the Appellant’s submissions as follows: “It is our submission that, contrary to the findings of the DO the justification provided was sufficient for her to allow the claim in full. It is not possible for a lawyer to communicate with a client who does not speak English without the assistance of an interpreter. This client was charged with murder and we have clearly set out that we could not instruct a Portuguese interpreter for the lesser rates payable by the LAA. This falls within exceptional circumstances and specifically (3)(b) above and we do not know what stronger justification could be provided. It is our submission that this claim should be paid in full. In case it is thought that this is a trifling sum to bother the SCCO with it is our view that it is an important principle that Firms prepared to carry out publicly funded work should not be expected to pay such fees from their own pockets.”

4. Ms Krudy explained that the fees associated with interpreters can become a substantial burden to carry for those firms handling large volumes of cases. She submits that if those firms are prevented from ever exceeding the prescribed rates for interpreters then it results in accumulated losses which such firms have to stand as shortfall costs.

5. For remuneration purposes, an interpreter is treated as an expert. Ms Krudy relies on “Guidance on the Remuneration of Expert Witnesses in Family Cases”, the latest version of which is dated April 2025 (version 11), referred to further below as “the guidance”.

6. The guidance encompasses the changes brought about by version 7, “To outline the expert fee rates for Criminal Cases; including the new rates for cases that began on or after 30 September 2022. The rates have been increased in line with recommendations made during the Criminal Legal Aid Independent Review. See Annex 7”.

7. Annex 7 is “Expert rates for Criminal Cases” and provides that in the case of “Expert rates on Criminal cases started on or after 30 September 2022” the “Rates are laid out in Schedule 5, Regulation 16 Criminal Legal Aid (Remuneration) Regulations (amended 2022)”.

8. The Appellant is a London-based firm and so the relevant hourly rate for an interpreter, when the fees were incurred, is £29 per hour.

9. This appeal concerns underpayments related to two invoices raised by an interpreter concerning one visit to the Defendant in prison (12/09/2024) and one further engagement via the cloud video platform (CVP) service (16/10/2024).

10. Thus it is important to understand that this is not an appeal concerning the litigator’s remuneration, nor has the interpreter used been underpaid. Instead the appeal concerns a point of principle intended to deal with the question of in what circumstances, if any, can the prescribed rates for interpreter fees be exceeded.

11. The Appellant’s case is that they accept that the prescribed rate for London-based firms is £29 per hour for an interpreter, but that on occasions where availability and time constraints mean a suitable interpreter is not available at the rate provided for, it falls to the litigator practice to make the necessary arrangements regardless and then foot the cost of any shortfall between the payable rate and the actual rate charged.

12. Ms Krudy, for the Appellant, explained that the alternative of a fixed fee is very much dependent on how the interpreter chooses to charge for their work. They cannot be compelled to charge a fixed fee, and so usually an hours based invoice is submitted for remuneration purposes.

13. Ms Krudy also explained that even where a fixed fee was agreed, a litigator cannot make an application for prior approval if the sum sought is less than £100, which it often is (where the fee is calculated on an hourly rates basis).

14. Further, Ms Krudy explained the process of arranging a prison visit is far from straightforward. She described booking the visit as “the hardest part” in terms of coordinating prisoner contact for the purpose of taking instructions and providing advice. She explained that the prison visit had to be arranged first, and then one seeks to locate a suitable interpreter who is available for the specific booked time and date.

15. In the index matter, a suitable interpreter could not be located at the prescribed interpreter rate, and so an available interpreter (charging marginally more than the prescribed rate) was engaged so as to avoid delays.

16. Ms Krudy sought to stress the point that the Defendant was facing a murder charge and as such the relevant attendances requiring the presence of an interpreter were of the utmost importance given the gravity of the crime and the significant custodial sentence that would follow a successful conviction, even on the lesser charge of manslaughter.

17. The Appellant is surprised that the Legal Aid Agency had not elected to compromise this appeal, on the basis that they have apparently exercised past discretion to allow claims for interpreter fees at rates well in excess of £29 per hour in other cases involving the same litigator Appellant.

18. I observe that not only have the Legal Aid Agency elected not to attend this appeal, they have also elected to stand by their written reasons dated 21 January 2025, and not submit any additional written submissions from one of their in-house advocates (as is otherwise often the case).

19. The Appellant therefore felt compelled to proceed to this appeal hearing, faced with not only the absence of any compromise or exercise of discretion from the Respondent, but also taking into account the wider implications a decision in the Appellant’s favour may bring (in terms of clarity as to approach). Analysis and Decision

20. Section 2 of The Guidance on the Remuneration of Expert Witnesses in Family Cases (version 11) is titled “How the rates work” and paragraphs 2.1 to 2.5 covers “Rates in excess of the prescribed rates”. The starting point is that the Legal Aid Agency will not pay fees or rates in excess of those listed in the Regulations unless certain criteria are satisfied.

21. In terms of the court’s authority, I note that section 2.1(c) states “ The Legal Aid Agency LAA will not pay fees or rates in excess of those listed in the Regulations unless: “It is justified (on assessment by the LAA) why prior authority was not applied for and why the fees needed to exceed the maximum rates e.g. an urgent instruction was required. Applications will be assessed on a case-by-case basis. Note that where it is the court undertaking the detailed assessment of the bill the court has no delegated authority from the Lord Chancellor to authorise rates higher than those prescribed in regulations .”

22. I find two things flow from section 2.1(c). Firstly, there is clearly a mechanism under the guidance for the maximum rate to be exceeded. Secondly, the court cannot “authorise” higher rates where it is “undertaking the detailed assessment”.

23. This matter has come to me as an appeal, not to conduct a first instance detailed assessment. I am therefore satisfied that I have the discretion to consider whether the Respondent gave the required level of consideration as to why no application for prior authority was made, and thereafter the required level of consideration why a departure from the maximum rates was justified.

24. I therefore turn to the chronology of the remuneration claim before me, whilst doing my best to ensure the Respondent’s position through their written communications is fairly reflected in the absence of a Respondent advocate today.

25. Upon initial rejection of a departure from the prescribed hourly rate for an interpreter, the Appellant set out their explanation citing attempts to contact an available approved Portuguese interpreter at the prescribed rate, and that “Due to the nature of the offence it was imperative we had one and we choose (sic) the interpreter that had availability and closest to LAA rates we could find.”

26. The Respondent replied that “The higher rate has not been allowed for the invoices which exceed the maximum amount payable by the LAA as the maximum rates payable are firm.”.

27. As such, I observe the claim was not refused based on the absence an application for prior authority, but rather a blanket refusal to entertain a claim for a rate in excess of the prescribed rate (and without making any reference to the circumstances explained by the litigator Appellant).

28. The Appellant therefore requested written reasons. The written reasons quote extensively from The Criminal Legal Aid (Remuneration) Regulations 2013 (in particular sections 14 to 17 of the same) an the Crown Court Fee Guidance (sections 1.14 to 1.17).

29. The Respondent’s explanation thereafter, and without reference to the 2013 regulations or guidance (sections of which are quoted fully in the written reasons), is: “The issue is that the solicitors have provided some justification for the expert, but insufficient justification or clarification as to why a higher rate has been claimed than what would be granted on Prior Authority as per the LAA rates. We can only authorise the maximum rate per hour for an expert as stated in the Regulations and Guidance, the Disbursement rates can be found in the Remuneration Regulations. It can also be found in Guidance on the Remuneration of Expert Witnesses. Therefore, the disbursement has been assessed correctly, our assessment is in line with the relevant sections of the Regulations and Guidance as stated above. We have reviewed the claim again and having taken into account all previous assessments and all redetermination request, we are of the opinion the disbursement has been assessed correctly. In conclusion, the claim remains as assessed, thus redetermination request has been refused and written reasons have been provided.”

30. In terms of the 2013 regulations, it seems to me that only section 16(2) is relevant in that “The appropriate officer may, in relation to a specific claim, increase the fixed fees or rates set out in Schedule 5 if that officer considers it reasonable to do so in exceptional circumstances.”

31. There are three points that flow from this. Firstly, there is a discretion to be exercised. Second is the notion of an “exceptional circumstances” test, which is reiterated at paragraph 1.16 of the Crown Court Fee Guidance. Thirdly, the regulations are not drafted in a manner which suggests this is the only means by which rates may be exceeded.

32. It is not clear from the written reasons if the Respondent actually applied an ‘exceptional circumstances’ criteria to the circumstances of this case in electing to allow for no increase to the prescribed rates.

33. However, I acknowledge that the citing of exceptional circumstances is not a feature of the Appellant’s Form A but rather a construction of the Appellant's written submissions document filed on 24 March 2025, i.e. after the Respondent’s written reasons document.

34. In so far that the Appellant cites the Guidance on the Remuneration of Expert Witnesses in Family Cases (version 11), I observe that section 2.3 of the same provides that “scarcity” may also be utilised as a reason to allow “rates in excess of those listed in the Regulations” (2.1).

35. Indeed when sections 2.1 and 2.3 are read together, “The Legal Aid Agency LAA will not pay fees or rates in excess of those listed in the Regulations unless.. Scarcity can be demonstrated by providing alternative quotes or evidence of attempts to secure alternative quotes.”

36. There is force and logic in this tool of discretion being available to a determining officer or caseworker. Where a legally aided person is on remand and facing very serious charges, it is in no one’s interest to delay necessary meetings at which instructions are taken and advice given.

37. For remuneration purposes interpreters are treated as experts, and where a defendant and their appointed litigator cannot meaningfully communicate without an interpreter present that is clearly both problematic and significant.

38. If exceptional circumstances was the only mechanism by which the prescribed rate for an interpreter could be exceeded, it would mean that either litigator firms would have to absorb the cost of any shortfall or otherwise delay seeing their defendant client to a date a prescribed rate interpreter was available.

39. Justice delayed is justice denied, and in my view the very reason the guidance includes a provision to permit more than the prescribed rate in instances of “scarcity” is to ensure that needless delays are avoided.

40. What I am left to wrestle with is the question of the extent to which the Appellant has actually “demonstrated” scarcity by “providing evidence of attempts to secure alternative quotes”, or indeed the extent to which, if any, the appeal is in fact brought on such a basis.

41. I note that the written reasons set out that “The issue is that the solicitors have provided some justification for the expert, but insufficient justification or clarification as to why a higher rate has been claimed”.

42. The Appellant’s reference to “3(b)” above is paragraph 16(3)(b) of the 2013 regulations and sets out exceptional circumstances as: “(3) For the purposes of paragraph (2), exceptional circumstances are where the expert’s evidence is key to the client’s case and either— (a) the complexity of the material is such that an expert with a high level of seniority is required; or (b) the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.”

43. In so far as the regulations treat an interpreter as an expert, I am satisfied that it can be said that the interpreter’s evidence was “key” to the Defendant’s case. However, the criteria in (a) or (b) is also necessary to satisfy the test of “exceptional circumstances”.

44. The Appellant relies on the criteria in (b), but I do not agree that acting as a Portuguese interpreter qualifies as being of “such a specialised and unusual nature that only very few experts are available to provide the necessary evidence”. I consider that would set the “exceptional circumstances” bar far lower than was intended.

45. In my view, this is less a question of specialism, and more a question of scarcity.

46. Thus strictly under the criteria under which this appeal is brought, i.e. exceptional circumstances, I dismiss the appeal.

47. However, in so far as it might assist, had the Appellant brought this appeal under the scarcity provision (outlined above), and demonstrated (via the provision of evidence) attempts to secure an interpreter at less than the £30 per hour claimed / or otherwise demonstrated that £30 per hour represented the best value quoted in the circumstances, then I would likely have allowed the appeal. Costs

48. There be no order as to the costs of the appeal. COSTS JUDGE NAGALINGAM