Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 193 of 2012

The Queen on the application of McAllister Hanchell and ors. v. The Registrar of the Supreme Court (CL 193 of 2012) [2012] TCASC 4 (14 December 2012);

Law report citations
Media neutral citation
[2012] TCASC 4
Coram
Smith, J

IN THE SUPREME COURT OF

THE TURKS AND CAICOS ISLANDS

Action No. 193/12

BETWEEN:

THE QUEEN on the application of —

1. MCALLISTER HANCHELL

2. FLOYD HALL

3. LILIAN BOYCE

4. THOMAS CHALMERS MISIK

5. MELBOURNE WILSON

6/ SAMUEL BEEN

7. QUINTIN HALL

8. EARLSON ROBINSON

 

AND

 

THE REGISTRAR OF THE SUPREME COURT

Alan Newman QC and Ms. Lara Maroof for applicants

Patrick Patterson for the Respondent Andrew Mitchell QC — Amicus Curiae

Heard 7, 8 and 9 November 2012

SMITH, J.

1. On October 3, 2012, pursuant to the grant of leave to apply for Judicial Review of the Registrar's proposal in respect of Legal Aid rates, the applicants filed a Notice of Originating Motion in the Supreme Court. By this Notice of Motion the applicants seek an order of certiorari to quash the Registrar's proposal of 24 July 2012 and an order of mandamus requiring the Registrar to formulate proposals in respect of legal aid rates which give effect to the Chief Justice's letter dated April 30, 2012.

2. The grounds on which relief is sought are:

(1) On a proper construction of the Supreme Court Ordinance Ch 2.02 the power to make Rules concerning Legal Aid vests in the Chief Justice alone. Pursuant to such power, and in particular the power set out in section 16(2) (g) of the Supreme Court Ordinance, the Chief Justice made the Legal Aid Rules 1999. In those Rules. the Chief Justice created a structure whereby the decision to grant Legal Aid must be made administratively by the Chief Justice (Rule 3 (1)). The function of the Registrar is to fix the level of attorney's fees in accordance with the Chief Justice's decision respecting the grant of Legal Aid (Rule5(1)).

(2) The grant of Legal Aid in a complex case such as the criminal charges which the Applicants face, is not simply a question of the Chief Justice saying "I grant Legal Aid", but also a matter of establishing the basis of the grant, thereafter leaving it to the Registrar to decide the financial nuts and bolts in accordance with the basis set out by the Chief Justice.

3. In the case of the Applicants, the Chief Justice set out clearly the basis of the grant of Legal Aid in his decision letter dated 30 April 2012 sent to all affected persons (exhibit LM/7 to the accompanying affidavit of Lara Maroof). In that letter the Chief Justice stated:

"It is clear that the standard rates payable are not appropriate for a trial of this magnitude and significance. This case, because of that, will be treated differently to other cases before the Supreme Court. To the extent that it is practical and possible this case will be governed by rules similar to Very High Cost Cases in England and Wales. If this case took place within that jurisdiction, I have little doubt that it would be classified as such there. I also note the equality of arms argument, which causes me no difficulty."

4. Thereafter it was for the Registrar to implement that decision by applying a applying a scheme, and setting rates of pay on a basis akin to English VHCC provisions, in accordance with the Chief Justice's decision. This she has failed to do in the Registrar's Proposal dated 24 July 2012 (exhibit LM/14). For that reason the Applicants seek to quash the Registrar's Proposal dated 24 July 2012 and to require the Registrar to formulate Proposals which give effect to the Chief Justice's decision letter dated 30 April 2012.

Further or in the alternative:

5. The Registrar, insofar as authority was delegated by the Chief Justice to her under the Rules, had to take into account the Chief Justice's clear mandatory words as set out in his decision letter dated 30 April 2012.This would involve considering an hourly rate, in accordance with VHCC principles. There is no evidence that the Registrar did so.

Further or in the alternative:

6. The Registrar in defining her Proposal dated 24 July 2012 failed to consider properly or at all the factors set out in Rule 5(1) Legal Aid Rules 1999, or came to a decision which no reasonable Registrar could have reached, in that the level of fees proposed by the Registrar is such that it is too low to attract practitioners with the requisite experience to handle cases of such complexity.

Further or in the alternative:

7. The Registrar does not provide any reasons for the level of fees that she is proposing. They do not appear to have any discernible rational justification, and on that basis fall to be quashed.

8. The Registrar's failure to provide in the Proposal dated 24 July 2012 any reasons for her decision as to the level of Legal Aid rates amount to a procedural impropriety.

For all or any of the grounds set out above, the Applicants seek orders quashing the Proposal dated 24 July 2012 and ordering her to formulate proposals which give effect to the Chief Justice’s letter dated 30 April 2012

 

Signed

Dated

19.9.2012

 

Background

3. Arising from a Commission of Inquiry, the applicants and others were charged with criminal offences involving allegations of fraud and corruption. There are about 20,000 pages of evidence and approximately 300,000 pages of unused material. The applicants submitted applications for the grant of legal aid to fund their defence.

4. The legal aid certificates issued so far indicate the current rate to be $1,200 for brief (preparation and first day of trial) and $600 per day thereafter. These fees, the applicants claim, are unrealistic and will not allow them to retain lawyers to represent them.

5. On 13 April 2012, counsel for the applicants submitted to the Chief Justice a document entitled "Proposal for Legal Aid Structure". In that document counsel for the applicants stated that they and other attorneys-at law were of the view that the current legal aid system was not fit for the purpose of a case of this magnitude and importance. In this submission the attorneys proposed the adoption of a scheme akin to the Very High Cost Cases(VHCC) system used in England and Wales. However, the attorneys suggested that because of the unique nature, particular

 importance and gravity of this case the hourly and daily rates payable should be higher than those applicable to the United Kingdom.

6. On 30 April 2012 the Chief Justice replied to the defence attorneys' submissions. In his response the Chief Justice referred to the various representations he had received from the attorneys as well as details of legal aid rates in England and Wales, the Cayman Islands and Bermuda. The Chief Justice then went on to say:

"It is clear that the standard rates payable are not appropriate for a trial of this magnitude and significance. This case because of that will be treated differently to other cases before the Supreme Court. To the extent that it is practical and possible this case will be governed by rules similar to those applied to Very High Costs Cases in England and Wales. If this case took place within that jurisdiction / have little doubt that it would be classified as such there. I also note the equality of arms argument, which causes me no difficulty.

 

In the transition to the application of those rules it will be necessary to put in place mechanisms to make that work. In the present as there is a resumed Sufficiency Hearing scheduled for midday May 2012. I propose to make an order increasing the present Brief Fee and Daily Fee payable and thereafter make further and more wide ranging orders to deal with the situation immediately after the Sufficiency hearing if such orders remain necessary. Now I will increase the brief fee payable from $1,200 for one lawyer to $1,500 for counsel and $600 per day for instructing attorney. When the necessary infrastructure is in place to apply VHCC rules further decisions will be necessary to reflect those rules ".

7. No mechanism to facilitate the application of the VHCC system has been put in place. The defence attorneys were of the view that the proposals made by the Chief Justice "require further consideration and clarification". Consequently by letter dated 8 May 2012 they wrote requesting a meeting with the Chief Justice "to allow representations to be made with all interested parties present".

8. On 21 May 2012, attorney-at-law Mark Fulford received a letter from Deputy Registrar on behalf of the Chief Justice. In that letter it was stated that:

"The Chief Justice agrees with the suggestion that advantage be taken of the availability of counsel attending for the Sufficiency hearing to hold a meeting to discuss hourly rates and other aspects of the VHCC scheme and its application here. That meeting can be taken by the Registrar who holds the responsibility under the relevant Rules to initially fix the fees payable. The response sent out to counsel by the Registrar indicated that this is a matter for the Registrar not the Chief Justice. I refer you to the Legal Aid rules 1999.

The Chief Justice having looked at the Legal Aid Rules and the subsequent practice direction of 2008, stated that it is in the first instance for the registrar to set a fee payable and to nominate the attorney to whom legal aid is granted".

9. On June 7 the defence attorneys wrote the Chief Justice "expressing concern about the delay in setting up a legal aid scheme. In that letter the attorneys proposed a number of ways forward and asked for the Chief Justice's prompt consideration.

10. On June 10 the Chief Justice in his letter of response made it clear that he would not be entering into any further correspondence on the matter. He stated that he had sent his advice to the Registrar and invited her comment on whether the VHCC scheme could be implemented and asked for any other suggestion she wished to make. He continued:

"In that advice and in subsequent correspondence it was made clear that in accordance with the Legal Aid Rules which were provided at some point, the initial decisions as to legal aid rates is that of the Registrar, not the Chief Justice".

11. At the request of the Registrar, defence attorneys resubmitted their proposals and on July 16, 2012 they received a proposal from the Registrar. The attorneys were of the view that the Registrar's proposed fees were inadequate and the scheme inappropriate.

12. On July 20, attorney-at-law Ms. Maroof met with the Registrar and explained why they were of the view that a fixed fee scheme was inappropriate and why they claimed that the rate for preparation was insufficient for a case of this nature.

13, On July 24, the applicants' attorneys received the Registrar's final proposal. Except for one, all of the attorneys were of the view that the final proposal was inadequate and unacceptable. Consequently the proceedings referred to at the outset were instituted.

14. Of critical importance to these proceeding are two documents. One is from the Chief Justice's Chambers and is dated Monday 30 April, 2012- see para 6 supra. The other is from the Registrar. It bears the date 24 July, 2012(LM14) and is reproduced below:

"Legal Aid Rates for Trials Arising From the Commission of Inquiry. Further to the publication of my proposal on legal aid approximately two weeks ago, I have been asked to review my decision by Ms. Lara Maroof on behalf of the Attorneys involved for the following reasons which are outlined in the document. This meeting was held on Friday 20 July, 2012 at 3:00 pm at the Registrar's Chambers in Providenciales.

-Although it is the view of the Defence Attorneys that the rates that I have set for trial are generous, the amount proposed for preparation in their opinion is not sufficient to justify the amount of preparation that is necessary.

-The overseas Attorneys requested a per diem once they are within jurisdiction.

-I have prescribed a rate of $250 per day for the reading and sifting of the material, the Attorneys do not want this, they want hourly rate per person doing the reading and preparation.

-I have been informed and have listened to arguments about equality of arms with respect to the preparation of these trials. The view being expressed by the Defendants' Attorneys is that since SIPT is being paid $15.5 million to prosecute these matters, the Defence must be paid on those same terms or very similar terms in order to defend their clients. I have listened carefully to the view and it is my opinion that the Defence should demonstrate the reasonable costs necessary to properly defend their clients. Although parties have expressed the view that this matter is so complex that they need to retain the services of a QC, JC etc., at least one person has expressed a contrary view and I must take that into account.

As mentioned in my previous document, if Counsel consider that the preparation rates are insufficient then I may have to adjust and reduce the daily rates, I have explained this to Ms. Maroof at our meeting held on Friday 20 July, 2012 and she has assured me that if the daily rates have to be reduced in order for the proper preparation rates ( in her opinion) to be paid, then that is fine since my proposed daily rates are so much more generous than what would normally be paid for trials under the VHCC scheme. I now adjust the maximum daily rates accordingly. These rates are made maximum depending on the role parties will be playing on the legal team.

The maximum daily rates payable for trial hearing will be (Monday to Friday):

Queen's Counsel - $1200.00

Junior Counsel - $800.00

Instructing Local Attorney - $600.00

Provided that the total daily rate is not exceeded, there is flexibility for payments to be made at a higher rate for Junior or Queens counsel as long as a corresponding reduction is made in the other rate.

Please note that if Junior Counsel is acting alone, there is also flexibility for an increase from the $800 to a more appropriate rate.

Non Hearing Days: During trial on a weekday when the Court does not sit the rates payable shall be:

Queens Counsel

$400

Junior Counsel                   -

$250

Instructing Local Attorney -

$NIL

 

I have considered the view expressed on the preparation and have adjusted those as follows below:

Preparation for each stage

PDH                           -

$10,000.00

PTRs/Directors

$ 5,000.00

Trial

$90,000.00

 

One fee is paid here per defendant being represented.

Accommodation is at the approved TCIG standard of $150 per day for Providenciales payable when it is necessary for counsel from outside of TCI to be present in TCI.

I have considered the issue raised concerning the request for a per diem by the overseas attorneys and I find that that request is not justified.

I agree payments at intervals of three months once the work is properly justified and invoiced accordingly. At intervals, I expect that counsel will agree with the Registrar if the need for additional work rates arises.

No payments will be made in advance of work done or disbursements incurred.

I request that once a legal aid certificate has been issued to a Defendant that the legal team for the relevant Defendant meets with the Registrar upon the agreement of the rates and inform and justify as to the composition of the legal team and the appointment of a Queens Counsel and /or Junior Counsel (if necessary) on the said legal team

Shanta Narinesingh Registrar

24 July, 2012

Judicial Review

15. Judicial Review is a procedure in English Administrative Law by which the Courts supervise the exercise of public power on the application of an individual. In general review is confined to the activities of the executive or public bodies which are governed by public law. It has been said that the constitutional position of judicial review is dictated by the need to prevent the abuse of power by the executive as well as to protect individual rights. In the Council of Civil Service Unions v. Minister of Civil Service [1985] AC374 lord Diplock summarized the grounds for judicial review as:

Illegality

Irrationality and

Procedural Impropriety

16. The Legislative Framework

The Constitution

Section 6(2) (d) of the Constitution of Turks and Caicos Islands provides: 6(2) Every person who is charged with a criminal offence

(d) shall be permitted to defend himself or herself before the court in person or, at his or her own expense, by a legal representative of his or her own choice or, when the interests of justice so require, by a legal representative at the public expense;

Section 6(2) (d) of the Constitution is a virtual restatement of Article 6 (3) (c) of the European Convention on Human Rights which applies to Turks and Caicos Islands.

 

17. The Supreme Court Ordinance Section 5(1) of the Ordnance reads:

(1) "The Chief Justice shall be the only Judge, subject to the provisions of subsection 3 of this section, empowered to exercise any functions conferred upon the Chief Justice by this Ordinance"

 

(Subsection 3 deals with any person designated as Acting Chief Justice, and is not relevant to these proceedings.)

Section 9(1)(h) provides:

(1) "The Registrar shall perform the following duties, that is to say

(h) shall perform all the duties performed by the Registrar of the Supreme Court prior to the coming into operation of this Ordinance, and shall transact all such ministerial business of the Supreme Court and perform such other duties as are assigned to him by any Rules of Court or by direction of the Chief Justice."

Section 16(1) and 16(2) g

"(1) The Chief Justice may, from time to time make, and when made, revoke, and to or alter, Rules of Court for any of the purposes here in after mentioned:

Provided that such Rules shall be published as a Government Notice, and shall come into operation on the date mentioned in the Notice.

(2) The purpose for which Rules of Court may be made are as follows:

(a)....

(g) for the provisions of legal aid at public expense for poor persons committed for trial before the Court on criminal charges, ..."

Section 17 provides:

"Until Rules of the Court are made for the purposes mentioned in Section 16, any of the matters which might be regulated by such Rules may be regulated by the special or general orders of the Chief Justice."

 

18.       The Legal Aid Rules

Pursuant to section 16 (1) and (2) (g) of the Ordinance the Legal Aid Rules 1999 were made by the Chief Justice. Of particular importance to these proceedings are Rules 3 and 5 which govern the grant of legal aid and fees to be paid to the attorneys.

Rule 3 provides:

"(1) The decision whether or not to grant Legal Aid to an applicant shall be made administratively by the Chief Justice, without a hearing.

(2)....

Rule 5 reads:

(1) The fee to be paid at public expense to an attorney for representing a poor person under these regulations shall be established on a case by case basis at the outset by the Registrar, taking into account:

(a) the nature of the charges involved;

(b) 

the anticipated length of the case;

i

(c) ts difficulty or otherwise;

(d) the proposed plea; and

(e) 

any other relevant circumstances.(2) ........

(2) ...

(3) In addition to the fee fixed under paragraph (1), the Registrar may allow the payment of such reasonable and necessary expenses as are in fact incurred by the attorney and before approving the payment of such expense may require them to be substantiated in such manner as he may direct."

Submissions

19.    In support of the applicants' claim for an order of certiorari to quash the Registrar's proposal of 24 July 2012, Mr. Newman Q.C. submits that the Registrar's decision is illegal and irrational.

The Issue of illegality

The issue says Mr. Newman Q.C, is based on the Registrar's failure to follow the mandatory instructions of the learned Chief Justice. Learned Queen's Counsel contends that illegality in this case is twofold:

(i) The applicants are alleging that the Registrar has failed to complywith the statutory scheme, that is to say, the Supreme Court Ordinance and the Legal Aid Rules 1999 setting out the respective roles of the Chief Justice and the Registrar. Under the Rules, he argues, it is the exclusive role of the Chief Justice to decide that legal aid shall be granted on the VHCC basis. The policy decision is made by the Chief Justice and the working out of the details is by the Registrar, says Mr. Newman Q.C.

(ii) If in fact the whole VHCC scheme or a scheme akin to it is not really covered by the Legal Aid Rules 1999, then S. 17 of the Ordinance would apply.

20. In developing his argument Mr. Newman contends that the Registrar's proposal does not comply with the Chief Justice's instructions contained in the latter's letter of 30 April 2012- see para 6 supra.

He argues that the Chief Justice, by virtue of S.3 of the Legal Aid Rules or alternatively by s17 of the Ordinance, was entitled to give directions for adoption of VHCC scheme or one akin to it. The fees, he points out, were not calculated on an hourly basis as is required under the VHCC system. Contrary to the method applicable to the VHCC scheme, the Registrar, he claims proposed a fixed fee. He submits that the Registrar did not comply with the Chief Justice's directions in document dated 30 April 2012 (see para 14 supra) and accordingly her proposal dated 24 July 2012( at ara 14 supra ) is illegal. Other aspects of the Mr. Newman's submission will be referred to later.

21. Mr. Patterson for the respondent submits that the responsibility for determining the basis as well as the mechanism and level of legal aid is in the first instance that of the Registrar and not the Chief Justice. The responsibility of fixing the level of fees is part and parcel of setting the scheme or the mechanism to determine how those fees should be arrived at or what the fees should be and this is the role of the Registrar, he contends. In any event, he argues, it is wrong to interpret the Chief Justice's advice in document of 30 April 2012 as mandating the implementation of the VHCC scheme.

Section 17, of the Ordinance, he stresses, does not apply where Rules of Court are in place. Further the proviso to S. 16 (1) applies to any special or general orders made by the Chief Justice pursuant to S. 17.

22. Mr. Andrew Mitchell Q.C., who appears amicus curiae, submits that:

(i)   The Chief Justice is only authorized by the Legal Aid Rules 1999 to make a decision under Rule 3 as to whether or not to grant legal aid. He is not authorized by the rules to have any role in respect of the level of expenditure or the scheme for payment. Under Rule 5 such powers are given to the Registrar. The Chief Justice may advise her as to the basis on which her decision is to be made. It is the responsibility of the registrar to establish the basis and the amount of fees. Any direction by the Chief Justice to the Registrar as to how legal aid is to be administered would be ultra vires.

(iii)   The 30 April 2012 note from the Chief Justice to the Registrar which was sent by the Registrar to defence attorneys is not a decision letter. The note is not a direction to the Registrar and cannot be regarded as imposing a mandatory obligation on the Registrar to comply. The Rules do not permit the Chief Justice to direct the Registrar as to how legal aid must be administered. The note, he contends, is an advisory from the Chief Justice and is no more than aspirational. Learned Queen's Counsel referred to several documents and the Rules to support his contention.

Analysis of the law, evidence and submissions on Issue of Illegality

23. Since no objection was taken as to the validity of the Legal Aid Rules 1999, I will proceed on the basis that they have been published as a Government Notice and have come into operation as required by the proviso to section 16 (1) of the Supreme Court Ordinance.

Grounds I, 2, 3 and 4

(Ground 1 is not an issue.)

24. There is no dispute that the Chief Justice and the Registrar have been given distinct roles by the Rules. It is the role of the Chief Justice to decide whether or not to grant legal aid to an applicant (Rule 3). The responsibility of the Registrar is to establish the fees to be paid on a case by case basis at the outset.

The distinctive nature of the roles seems quite clear to me. However, learned Queen's Counsel for the applicants is contending that "the grant of legal aid implies the basis on which legal aid is granted." He relies on Rule 3 (2) in support. Subsection (2) provides that in deciding whether or not to grant Legal Aid to an applicant the Chief Justice shall take into account the seriousness of the charges; the likelihood or otherwise of the applicant being sentenced to a term of imprisonment if convicted; the nature of the case including its complexity or lack of it; the age and background of the applicant and any other matters which appear to him relevant.

The logic in the structure of the Rule, he says, would not allow the Chief Justice simply to say "legal aid granted".

It seems to me that the contention of the applicants is not tenable. As Mr. Mitchell QC says, to hold that the Chief Justice may determine the basis on which legal aid fees are arrived at would be reading something into Rule 3, which would substantially change or affect the role of the Registrar under Rules 5.

The conditions set out in subsection (2) of Rule 3, which the Chief Justice shall take into account all touch and concern the question as to whether, in the interest of justice legal representation should be provided, at public expense, in order to secure the applicants' constitutional right to the protection of law as guaranteed in Section 6 of the Constitution.

Subsection (3) of the Rule 3 is also instructive it reads:

"(3)       The Chief Justice shall not grant Legal Aid unless satisfied, on the basis of the applicant's statement of means and of any other information available to him, including but not limited to any report by a probation or welfare officer or any other government agency that the applicant is unable to afford legal representation out of the financial resources available to him."

In my opinion it is clear that the provisions of subsections (2) and (3) of Rule 3 are aimed at ensuring that an applicant who, in the interests of justice should have legal representation and who cannot afford it, is granted legal aid. Rule 3 does not in my view authorize the Chief Justice to direct the Registrar as to the basis or the mechanism for the determination of the legal aid fees to be paid to an attorney. Accordingly, Rule 3 does not impose any legal obligation on the Registrar to comply with any such direction. An authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person. See, for example, McLaughlin v. Minister for Social Welfare [1958]I.R.1,27 referred to in DeSmith's Judicial Review of Administrative Law. The Registrar may not abdicate her duty.

25. As stated earlier Rule 5 (1) concerns the fees to be paid to an attorney. Once the Chief Justice has granted legal aid to an applicant it then becomes the responsibility of the Registrar to establish the quantum of fees to be paid to the attorney assigned. I emphasize the word "establish". The Concise Oxford English Dictionary defines "establish" as follows: "1. set upon a firm or permanent basis; 2. initiate or bring about; 3 ...." Applying the dictionary meaning of the word 'establish', Rule 5 may be construed simply as providing that it is the duty of the Registrar to set up the basis for determining fees to be paid to the assigned attorney in each case for representing a poor person to whom legal aid is granted. The considerations which the Registrar must take into account in fixing the fees are clearly set out in subsection (1). These considerations are unquestionably relevant to the process of arriving at the level of fees to be paid in each case.

26. A close examination of subsections (2), (3) and {4) of Rule 5 will, in my view, show that the Chief Justice when he made the Rules, did not intend that in the administration of the legal aid system, he would have any responsibility in so for as the fixing of the attorney's fees and the approval of the payment of expenses incurred by the attorneys are concerned.

Subsection 2 speaks to the establishing of alternative fees in certain circumstances and of course, it is for the Registrar to establish such fees. Subsection 3 empowers the Registrar to allow the payment of reasonable expenses in addition to the fees fixed under subsection (1). In this regard the Registrar may require expenses to be substantiated in such manner as he may direct. Subsection 4 must be read in conjunction with Rule 4 which deals with the assignment of attorney.

 

Subsection 4 of Rule 5 states:

"(4) where the attorney chosen by the applicant is unwilling to undertake his representation at the fee established by the Registrar, then the Registrar may assign any other attorney who is willing to accept that fee to represent the applicant"

As suggested by Mr. Mitchell QC, the procedure would be as follows:

After legal aid is granted by the Chief Justice, the Registrar at the outset will decide the level of fees. If the applicant has chosen an attorney, the Registrar will speak to the attorney. Rule 5 (4) envisages that there will be a measure of discussion. If the attorney is unwilling to undertake the applicant's representation in light of the fees fixed then the Registrar may assign any other attorney. However, if the attorney chosen by the applicant wants to undertake his defence but refuses to accept the fees, he may ask the Registrar to review the fees proposed. Whether or not he may challenge the Registrar's proposal would depend on whether there is any sufficiently experienced attorney willing to accept such fees. Where the only issue is the quantum of fees, it seems to me that if it is shown that there is no experienced attorney willing to accept the fees fixed by the Registrar only then and in exceptional circumstances can the Registrar's proposal be challenged on review. What is reasonably clear is that these subsections do not authorize the Chief Justice to instruct or direct the Registrar to apply any mechanisms with a view to increasing the fees to be paid. As with Rule 3, Rule 5 does not place any legal obligation on the Registrar to comply with such directive from the Chief Justice. Accordingly grounds 2, 3 and 4 must fail.

Ground 5

27.       Notwithstanding my conclusion that the Chief Justice has no power under
the Legal Aid Rules 1999 to direct the Registrar to implement the VHCC system or any system akin to it, I propose nonetheless to treat with the issue as to the nature of the document of 30 April 2012 as much time was spent in argument on this issue in the light of s 9 (1)(h) of the Supreme Court Ordinance. According to Mr. Newman Q.0 the April 30 document is a decision letter from the Chief Justice giving directions or instructions to the Registrar. Mr. Mitchell Q.C. thinks otherwise. He says it is an advisory not a decision letter. Excerpts are repeated for ease of reference.

In that document the Chief Justice stated:

"It is clear that the standard rates payable are not appropriate for a trial of this magnitude and significance. This case because of that, will be treated differently to other cases before the Supreme Court. To the extent that it is practical and possible this case will be governed by rules similar to Very High Cost Cases in England and Wales. If this case took place within that jurisdiction, I have little doubt that it would be classified as such there."

This extract, counsel for the applicant says, is a clear decision taken by the Chief Justice that the VHCC scheme or one akin to it should be applied in setting the level of fees. It was for the Registrar, he claims, to implement such a scheme in accordance with the Chief Justice's decision. It is necessary to revisit the document under consideration.

28. In the 30 April document the Chief Justice expressed agreement with the attorneys for the applicants that the standard legal aid rates payable were not appropriate for the trial of this case.

The Chief Justice stated that:

"to the extent that it is practical and possible this case will be governed by rules similar to those applied to Very High Costs Cases in England and Wales".

He went on to state:

"In the transition to the application of those rules it will be necessary to put in place mechanisms to make that work." He continued "In the present... I propose to make an order increasing the present Brief and Daily fee payable... Now I will increase the brief fee payable from $1200 for one lawyer to $1500 for counsel and $1200 for instructing attorney and $600 per day for one lawyer to $800 per day for counsel and 600 per day for instructing counsel. When the necessary infrastructure is in place to apply VHCC rules further decisions will be necessary to reflect these rules"

In the penultimate paragraph the Chief Justice stated:

"presently I am minded to adopt the scale of rates payable in England and Wales... to make that decision I do require further information including details..."

I agree with Mr. Patterson that it would be wrong to construe the contents of this document as mandating the implementation of the VHCC system. At first blush it seems as if the Chief Justice had intended to have the VHCC system implemented and had actually taken it upon himself to fix the fees that should be paid to the defence attorneys. However this document must be seen in the context of the covering email and subsequent exchanges.

29. The covering email from the Chief Justice to the Registrar reads:

"Please find attached my note to counsel about Legal Aid. If you have the time you might consider it to make sure we can do what is envisaged and if you have any questions before it is released. Otherwise you can release it to those who are waiting for it, if possible all together."

It is important to note that in this email which accompanied and explained the document, the Chief Justice described it as "my note to counsel" and he invited the Registrar to "consider it to make sure we can do what is envisaged". In plain language, the Chief Justice is saying that the document contains what is conceived of as a possibility. He was certainly not directing the Registrar to implement the VHCC system or any other system for the purpose of fixing the fees. There is merit, I think, in the submissions of counsel for the respondent that the document merely reveals the aspirations of the Chief Justice.

30.  I will now look at some of the exchanges. By letter dated 8 May 2012 (LM8) defence attorneys acknowledged the Chief Justice's letter of 30 April. They stated "we are of the view that there are a number of aspects of the proposed VHCC style system which require further consideration and clarification. They suggested a meeting between the attorneys and the Chief Justice to allow representations to be made.

On 21 May 2012 the Deputy Registrar replied on behalf of the Chief Justice. The attorneys were told "The Chief Justice having looked at the Legal Aid Rules and the subsequent practice direction of 2008 states that it is in the first instance for the Registrar to set a fee payable and to nominate the attorney to whom legal aid is granted."

On 7 June 2012 defence attorneys again wrote the Chief Justice. They complained that neither "the payment rate itself nor the framework for payment as proposed thus far was adequate." They expressed the view that it would be difficult to implement a full VHCC scheme and proposed a number of ways forward. I must pause here to say that in light of this letter it is difficult to understand the legal basis for the applicants' claim for an order of mandamus requiring the Registrar to formulate proposals which will give effect to the Chief Justice's letter of 30 April.

On 10 June the Chief Justice replied. He referred to his letter of 30 April as an "advice ". He said "I sent my advice to the Registrar and invited her comment on whether such scheme equivalent could be implemented ..." He further said "In that advice and in subsequent correspondence it was made clear that in accordance with the Legal Aid Rules, which were provided at some point, the initial decision as to legal aid rates is that of the Registrar not the Chief Justice. It was my expectation after you received that advice that you would have acted upon it and sought a meeting with the Registrar to discuss." There was a meeting between the Registrar and Ms Maroof.

On 23 July 2012 Ms Maroof wrote the Registrar following on from the meeting. She stated "We appreciate that there would be significant additional costs if staff had to be recruited to manage the (VHCC) scheme". Pursuant to an undertaking she had given at the meeting she had consulted with the other attorneys and in this letter made suggestions as to an appropriate fixed fee for pre —trial preparation. This letter demonstrates that the defence attorneys recognized that the Chief Justice's letter did not mandate the Registrar to implement VHCC scheme and that it was open to the Registrar to propose a fixed fee arrangement as a means of dealing with the legal aid provision for the instant case. The covering email and the subsequent exchanges clearly show that the 30 April note was not a decision letter but was merely an expression of aspiration. In light of the foregoing ground 5, in my view, is misconceived.

31. Although not strictly necessary I will say a word on s17 of the Supreme Court Ordinance. Mr. Newman QC contends that if the Legal Aid Rules do not allow the Chief Justice to make policy decisions relating to the fixing of fees, then s17of the Supreme Court Ordinance would apply. He says that the VHCC scheme is a self contained scheme in the UK and if the 1999 Rules do not cover that scheme then s17 of the Ordinance becomes applicable. Now s17 read in conjunction with s16 (2)(g) of the Ordinance empowers the Chief Justice to regulate by special or general orders the provision of legal aid until Rules are made. There can be no dispute that this provision can only avail the applicants if:(a) no relevant Rules are in place; (b)the Chief Justice makes a special or general order as required ; and (c) such order has been published as a Government Notice in accordance with the proviso to s16(1) of the Ordinance. I entirely agree with Mr. Patterson that the Chief Justice having made the Legal Aid Rules 1999 the provisions of s17 cannot avail the applicants. Further, as I have found, the 30 April note from the Chief Justice is not a direction letter to the Registrar and thus is not an order such as to found the applicants' claim for mandamus.

32. In sum I find that the application for orders of certiorari and mandamus on the ground of illegality is based on a misunderstanding of the functions and roles of the Chief Justice and the Registrar under the Legal Aid Rules 1999. Further, as Mr. Patterson and Mr. Mitchell QC contend, the application is based on a misconstruction of the Chief Justice's expression of intent in the 30 April " note to counsel on legal aid ".

Irrationality (Grounds 6, 7 and 8)

33. I now turn to the issue of irrationality. The terms irrationality and unreasonableness are often used interchangeably. However irrationality is only one facet of unreasonableness - see DeSmith's Judicial Review of Administrative Law. Mr Newman QC in his submissions on this issue states that he is using the term in the sense of Wednesbury unreasonableness - making reference, of course, to the well known case of Associated Provincial Picture Houses Ltd. v Wednesbury Corp. [1948)1KB 223 Mr Newman's contention is that : (a) the Registrar failed to give adepquate reasons when reasons were needed; (b) the Registrar failed to take into account relevant factor; and (c) the Registrar came to a conclusion which no reasonable Registrar could have reached. Accordingly, he says, her proposal of 24 July 2012(LM14) is irrational. I will deal with these seriatim.

Failure to Give Reasons

34. The applicants complain that the Registrar failed to set out the basis on which or the process by which she arrived at the fees proposed,in particular the preparation fee of $90,000.Both Mr. Patterson and Mr. Mitchell QC argue that there was no duty on the Registrar to provide reasons, but in any event , they say, it is wrong to conclude that the Registrar did not give reasons.

35. I am inclined to the view that on a proper reading of the Registrar's proposal (LM14) it is not reasonable to say that she failed to give adequate reasons for her decision. The proposal of 24 July must be read in the light of the Registrar's first proposal (LM12) which was received by defence attorneys on 16 July 2012 — see paragraph 13 of Ms Maroof's affidavit. In her first proposal she sets out the maximum daily rates and the preparation fee for each stage. She advised the attorneys as follows: "I have tried to set a balance between the rates for preparation of trial and the daily trial rates. If counsel consider, for example, the preparation rates to be insufficient then I may have to revisit the whole proposal so as to adjust and reduce the daily rates to maintain a balance."After receiving this proposal, Ms Maroof said she liaised with other defence attorneys and then met with the Registrar. At this meeting she expressed the dissatisfaction of defence attorneys with a fixed rate scheme. The Registrar told her that a fixed rate scheme would be easier to manage and that she did not have the resources to oversee a VHCC style scheme. Ms Maroof agreed that the defence would consider whether there was a way to accurately estimate a reasonable fixed fee and the Registrar agreed to consider further written submissions. After consulting with the other defence attorneys, Ms Maroof made further submissions to the Registrar indicating what in their view an appropriate fixed fee was. It is against this background that the Registrar's final proposal must be examined with a view to determining whether there is any merit in the complaint that the Registrar did not provide any reasons for the level of fees that she proposed ( ground 7).

36. It is fair to say that the defence attorneys seem to have no quarrel with the rates set for trial. Indeed in their view those rates are generous. Their disagreement is with the amounts proposed for preparation. They claim that these amounts were figures plucked out of the air and have no discernible rational basis.

In the Registrar's first proposal (LM12) the amount of $10,000 was proposed for preparation for trial. The maximum daily rates for trial were $1650 for QC, $800 for junior counsel and $600 for instructing counsel. These,she said, were arrived at after viewing all the correspondence and submissions from interested parties. She further stated that she had tried to set a balance between the rates for preparation of trial and the daily trial rates . However if defence attorneys consider the preparation rates to be insufficient she was willing to revisit her proposal so as to adjust and reduce the daily rates to maintain a balance. In LM 14 she said she explained this to Ms Maroof at their meeting on 20 July 2012. The Registrar had the benefit of further submissions from defence attorneys and thereafter made substantial increase in the proposed preparation fee.

In my view, there is no obligation on the Registrar to give a mathematical calculation as to how she arrived at the fees proposed. By using the words "maintaining a balance" no doubt the Registrar, as Mr. Patterson submitted, recognized the implications of the levels of legal aid and the limitations of finances and the need to keep her proposals within reasonable and workable limits so as to ensure that the ultimate objectives of the Rules and the need to deal with the exceptional circumstances of this case could be achieved.

The Registrar was asked to review her decision in LM 12.In her decision in LM 14 she stated that she took into consideration all the submissions made by defence attorneys. She had to approach these submissions in the light of Rule 5 (1) of the Legal Aid Rules 1999, s16(2)(g) of the Ordinance (provision of legal aid at public expense for poor persons) and, as said before," the severe financial constraints" as indicated by the Chief Justice in his Practice Direction of 2008 and his Note to Counsel dated 5 Dec. 2009. At the end she made a final proposal.

Bearing in mind that the obligation to give reasons is a part of the requirement of fairness, in the circumstances of this case, there is no merit in the complaint that the Registrar had failed to give adequate reasons for her decision in LM14. I may add that at para 5 of a letter dated 10 September 2012 sent to the Registrar on behalf of a number of defence attorneys there is a clear recognition of the fact that the Registrar did give reasons. That para begins with the words "In giving your reasons for your decision ..." the authors were referring to LM14.This is a clear recognition of the fact that the Registrar had indeed given reasons. But yet at the last paragraph of the same document the attorneys state: "If you are not willing to reconsider your decision we ask that reasons be provided for the decision in particular how the preparation fee was calculated in order that we can adequately prepare for a collective claim for Judicial Review on behalf of the relevant Defendants." This ,in my view ,supports the respondent's contention that this matter is all about the defence attorneys' dissatisfaction with the fees and not about the absence of reasons.

Failure to consider factors set out in Rule 5(1)

37. In ground 6 the applicants complain that the Registrar, in defining her proposal dated 24 July 2012, failed to consider properly or at all the factors set out in Rule 5 (1) of the Legal Aid Rules 1999.

This aspect of Ground 6 is, in my opinion, baseless. To start with, it was agreed by all concerned, that because of the magnitude, complexity and significance of the case, the standard rates payable were not appropriate. The anticipated length of the trial was stated by Ms. Maroof in her letter to the Registrar dated 23 July 2012 (LM 13). A draft Budget of Costs (LM 3), which was sent to the Registrar also refers to the estimated length of trial and the complexity of the charges — see page 2. And at page 1 of LM 14, the Registrar commented "Although the parties have expressed the view that this matter is so complex that they need to retain the services of a QC, JC etc, at least one person has expressed a contrary view and I must take that into account."

In my judgment, there can be no doubt that the Registrar considered the factors set out in Rule 5 (1) of the Legal Aid Rules 1999 (see para 18 supra).

Unreasonable Fees

38. Another aspect of ground 6, as I understand it, is that even if the Registrar had properly considered the factors set out in Rule 5 (1), she came to a decision which no reasonable Registrar could have reached. The heart of the complaint here is that the fees proposed by the Registrar are too low.

Equality of Arms

The applicants say that the level of payment to prosecution lawyers is relevant in arriving at a reasonable level of fees to be paid to defence lawyers. The concept of equality of arms, counsel for the applicants submits, requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place him/her at a substantial disadvantage vis-a-vis his opponent .

The applicants accept that it is not the law that defence costs should mirror those of the prosecution. However, they contend that the Registrar should take into account fees payable to the prosecution to assist her on the defence fees. In this regard, reference is made to the Lord Chancellor v John Charles Rees QC and Ors [2008] EWHC 3168. Had the Registrar taken into consideration the fees payable to the prosecution lawyers, she would not have arrived at the fees proposed, they contend.

39. Now, "equality of arms" means that a party is entitled to be in a position to present his case under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent.

It is a component of the broader concept of a fair trial. See The Queen on the application of Terrence Leslie Shields v. The Crown Court of Liverpool and The Lord Chancellor [2001] EWHC Admin 90 at para 17.

In LM 14 the Registrar said that she had been "informed and had listened to arguments about equality of arms with respect to the preparation of these trials." She made reference to the views expressed by the defence concerning the sum of money made available to the prosecuting attorneys and expressed her view that the defence should "demonstrate the reasonable costs necessary to properly defend their clients.' Thereafter she proceeded to make a substantial increase in the fees she had earlier proposed. In fact, she increased the fees proposed for preparation for trial from $10,000 to $90,000. There is no doubt in my mind that the Registrar did, as she said, take the applicants' submissions on equality of arms into consideration.

In any event, there is no evidence that the applicants would be deprived of their right to a fair trial by the level of fees proposed. Therefore, as Mr. Patterson submits, the issue of equality of arms properly does not arise.

40. The case below, cited by Mr. Patterson, is instructive. In McLean and Anor v. Procurator Fiscal (Scotland) [2001] UKPC D3 (24 May 2001) at para 38, Lord Hope of Craighead said:

"I am not persuaded that it has been shown that the fixed fee regime will give rise to any actual or inevitable prejudice at the applicant's trial. As I have already said, it would be wrong to assume that the solicitors who have been instructed in this case will reduce their standards of preparation simply because they consider that they will not receive adequate remuneration for their work when they are paid the fixed fee. The assumption must be, in the absence of any contrary evidence, that they will conduct the defence according to the standards which are expected of their profession as they are required to do by the codes."

41. Is the proposed preparation fee for trial demonstrably unreasonable? What I have said in paragraphs 35, 36 and 37 above is relevant to this question. The Registrar was criticised for failing to implement the VHCC scheme in the fixing of the fees. The applicants contend that if the Registrar had used an hourly rate system, she would not have arrived at the preparation fee suggested. However, the Registrar, at a meeting with Ms. Maroof, who represented the defence attorneys, "indicated that a VHCC style hourly rate system would be difficult to manage and administer here because of the high level of oversight that would be required by the Registry", see LM 13. The Registrar proposed a fixed fee for preparation. Ms. Maroof, in her letter (LM13) stated that it was their view that an hourly rate system based on the VHCC category 1 rates is the fairest and most appropriate scheme for preparation of this case. However, she appreciated that "there would be significant additional costs if staff had to be recruited to manage the scheme". Thus, it was agreed by all that a fixed fee system should be applied. With this in mind, I would venture to think that an application for an Order of Mandamus requiring the Registrar, in effect, to implement the VHCC system, is completely misconceived.

42. In arriving at a reasonable fixed fee the Registrar must consider the criteria set out in Rule 5 (1) and the limited fund allocated for the provision of legal aid in criminal cases as stated in the Chief Justice's Practice Direction No. 1 of 2008. In that direction, the Chief Justice said:

"The limited fund allocated for the provision of legal aid in criminal cases means that fees are relatively low but it is important that all attorneys should be willing to take on some legal aid work if requested. I am gratified that many attorneys do so despite the level of fees allowed."

Further, the Registrar would have in mind the Chief Justice's "Note to Counsel" dated 15 December 2009. In the first paragraph the Chief Justice stated:

"As everyone is aware, the present Administration is working under very severe financial constraints. The already limited legal aid fund is unlikely to be increased in the foreseeable future. I shall do all I can to ensure the overall fund is not reduced."

The assertions by the applicants that the level of fees proposed are too low to attract practitioners with the experience required, must be seen in light of the above statements of the Chief Justice. And the fact that at least one attorney-at-law had expressed a contrary view, is also relevant and was taken into account by the Registrar.

When all these factors are taken into account, the fee proposed by the Registrar, which is a substantial improvement on the fees earlier proposed, cannot be challenged on the ground that the Registrar came to a decision which no reasonable Registrar would have reached.

43. This Court has the benefit of a "Note To The Court", signed by Andrew Mitchell, QC, and Rob Rinder. This document sets out the three relevant "Very High Cost Case" categories for fraud cases. The criteria to determine into which category a case is to be considered are set out by reference to Blocks A and B and discussed by the authors. Thereafter, they provide a table of fees based on the current offer from the Registrar and compare the costs as if this were a category 1 or 2 case. Rough calculations were made on the basis of an average of two (2) minutes a page (20,000 pages), 60 day trial , 10 non-sitting trial dates, 6 hours per day in-trial preparation hours , expenses for trial in the Islands and 10 days of preparatory and directions hearings.

The table they provide sets out a rough comparator with England and Wales. It is interesting to note that the Registrar's proposal exceeds the respective amounts that would be paid under the VHCC categories 1 and 2 for fraud cases.

The authors of the document also researched the rates applicable in Jamaica, Barbados, Trinidad and Tobago and the Cayman Islands. It is sufficient to say that in none of these jurisdictions are the rates in anywise near those proposed by the Registrar.

This "Note To The Court" is certainly helpful in giving one an appreciation of what is reasonable in the circumstances of this case.

44. For the reasons given, grounds 6, 7 and 8 also fail.

45. Conclusion

(1) 

The Legal Aid Rules 1999 do not permit the Chief Justice to direct the Registrar to implement the VHCC scheme or any scheme akin to it for setting the level of legal aid fees.

(2) The responsibility of determining the level of legal aid fees under the Rules rests with the Registrar and the basis on which legal aid is granted is an aspect of the Registrar's responsibility.

(3) The role of the Chief Justice under Rule 3 of the Legal Aid Rules is only to decide whether or not to grant legal aid to an applicant. The grant of legal aid does not imply the basis or mechanism to determine how those fees are to be arrived at.

(4) The Registrar carried out her duty in accordance with the Legal Aid Rules and in recognition of the current financial constraints and in a manner that will ensure that the ultimate objective of S. 6(2) (d) of the Constitution and the need to deal with the particular circumstances of this case are achieved.

(5) The Registrar acted fairly and reasonably in arriving at the fees proposed in LM14.

(6) It is incorrect to say that the Registrar gave no reasons for her decision. There is certainly a discernible rational basis for her decision.

(7) The Chief Justice's letter of 30 April 2012 (LM 7) is not a decision letter. It is not a Rule or a change or alteration of the Rules. It does not mandate the implementation of the VHCC scheme. LM7 is not a direction or order to the Registrar within the contemplation of S. 9(1) (b) of the Supreme Court Ordinance.

Order

Application for Certiorari and Mandamus is dismissed. There shall be no order as to costs.

F. Algernon Smith,

Acting Judge of the Supreme Court of the Turks and Caicos Is.

14 December 2012