Acquitted defendants can claim the full cost of private legal fees, after the Ministry of Justice admitted there is a drafting error in the regulations intended to implement its controversial policy to cap awards.
The admission came in documents submitted by the MoJ in connection with the Law Society’s judicial review of the policy, which was introduced in October 2009 to ensure that acquitted defendants who paid privately for their defence cannot claim back more than legal aid rates for their legal fees, regardless of how much they actually paid.
The Law Society contends that the policy to cap the costs award is unlawful and ultra vires for the purposes of the Prosecution of Offences Act 1985, which requires that acquitted defendants are compensated sufficiently for expenses incurred. The Society says that limiting the sum recovered to legal aid rates would not provide sufficient compensation. The High Court heard the case last week and has reserved judgment.
In its defence papers, the MoJ accepted there was a drafting error in the 2009 regulations, which meant the new rule could not be applied where recovery is awarded by the court.
The MoJ papers said: ‘Such a result was not intended by the lord chancellor when he made the 2009 regulations. Accordingly, the lord chancellor intends to amend those regulations as soon as reasonably practicable.’
The Law Society has issued a practice note advising firms to lodge with the court a written application for full costs together with supporting documentation.
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