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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71128
Experience:  Over 5 years in practice
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I am an expert witness and following a recent Criminal Trial

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I am an expert witness and following a recent Criminal Trial my costs under Part V Costs in Criminal cases (General) Regs were reduced by the amount of the travel time involved (20 hours over 2 separate Days totally £1200.00). Unusually this decision was made after my invoice was put before the trial judge rather than by the determining officer at the Court. The initial reason given was that, the mileage allowance was generous although that is based on the distance travelled and the mileage allowance with the Regs and hence has no element of generosity.
A second expert witness in the same case was paid travelling time despite the fact that he did not give evidence.
I wrote to the Court setting out the Regulations and Notes of Guidance and pointed out that the other expert was paid for his travelling time and seeking clarification why my claim is treated differently both on the grounds of the Regulations and fairness.
Following review the Judge is still refusing to pay my travelling costs stating the "{The other Expert's} claim is not detirmative in my ruling which I have made on the merits. No further review of my decison."
Is my only recourse to seek a Judical Review and is this a suitable case for such action.
Thank you for your question. My name is ***** ***** I will try to help with this.
I presume this is a Crown Court Judge?
Did he quote any other reasons?
I can look up the routes of appeal for you.
Customer: replied 2 years ago.

Yes - Crown Court

The only reason for initial refusal was as quoted - mileage rate generous.

and following my letter seeking review that the other experts claim was not determinative of his ruling.

It isn’t a particularly helpful judgment.
I imagine the reason the trial judge reviewed it was that the determining officer had referred it to him because of the concern.
‘Generosity’ is not very clear here. Either it was accurate or it was not. Since it is possible to do an exact check on sites like that is always open to challenge.
I don’t know whether the argument is that the parties should have used a more local expert? If so, the Judge should really have made that clear.
You are right. S24[5] governs the amount you can claim by private vehicle. Unless they are arguing that the miles were not covered it is not generous. Or that you should have stayed overnight?
The Regulations are actually silent upon the routes of appeal. However, following general legal method, if this has already been appealed and is not a point of law arising from the trial itself, the route of appeal should be judicial review.
Judicial review is a high test and it is not all that cheap I’m afraid. You have to show that there was either procedural irregularity, bias or Wednesbury unreasonableness - which is hard. This would seem to fall into Wednesbury unreasonableness which means that no reasonable Judge would have come to that decision if he were properly directed.
The trouble with Wednesbury unreasonableness is that it is always very difficult to advise upon when you are not clear about the reasons for the ruling. That tends to be a helpful point when you are actually in court because a decision can only be justified if the reasons for it are set out but at the time of advise it is much harder.
I think, overall, it is probably worth a challenge.
Judicial review does cover just over a thousand to issue. Representation is obviously much more but you might find that the Bar Pro Bono Unit would find an interested barrister to help with this as it is a point of public interest.
Also, you can always seek a public access barrister. This case is eminently suitable as there is no need for a litigator at all. That would cost you about 10% of the cost of a solicitor.
Can I clarify anything for you?
Customer: replied 2 years ago.

Sorry I should have explained.

The trial was due to start on a Wednesday for 3 days and was delayed due to a previous trial running over and did not start until the Thursday.

I had a previous family commitment on the Friday and therefore unavailable, my instructing sols and the Court were aware.

As usual the trial did not commence on time on the Thursday and I did not give my evidence. I was order to return on the Monday (hence the travel time of 20 hours over two journeys) and a stop over was impractical.

IF I did take action for Judical Review are my costs recoverable if I succeed? If not there seems little point as the loss is only £1200.00.

Yes, and that happens. If courts want to avoid that then they need to give us fixtures and remove warned lists as ultimately the warned list assists nobody but the court. Everybody else hates the warned list.
Costs are recoverable if you win.
Nobody can guarantee anything obviously but actually I'm not sure what the Judge meant here. A claim is either accurate or not.
You can get advise on papers from the Pro Bono Unit if they can find an interested barrister but it sounds as though there is potential here.
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