England and Wales High Court (Senior Courts Costs Office) Decisions

Neutral Citation Number: [2024] EWHC 1979 (SCCO)

 

Case No: T2021 7458

 

SCCO Reference:  SC-2024-CRI-000055

 

IN THE HIGH COURT OF JUSTICE

SENIOR COURTS COSTS OFFICE

 

Thomas More Building

Royal Courts of Justice

London, WC2A 2LL

 

Date:   29 July 2024

 

Before:

 

COSTS JUDGE Brown

 

IN THE MATTER OF:

 

 

            R v   Jamadar

Judgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013

 

 

 ASHCOTTS SOLICITORS

Appellants

 

 -and-

 

 

 

THE LORD CHANCELLOR

 

Respondent

 

The appeal has been  successful  to the extent that the Applicant has accepted an increased PPE count offered by the Respondent. It has otherwise been unsuccessful.     

 

REASONS FOR DECISION

1.                There   appeared  initially  to be two issues  in this appeal arising in respect of the Graduated Fee Scheme (under the Criminal Legal Aid (Remuneration) Regulations 2013). The first  issue was whether the claim should have be   dealt was as  a ‘Before trial transfer - trial (new litigator)’ as provided for under the Table to  Regulation 13 in Schedule 2 of the 2013 Regulations (which provides for 100% of a  “full fee”)  or, if, as has been  allowed,      a  ‘Transfer before retrial (new litigator)’ fee.  (which provides for 50% of a “full fee”). The second issue was as to the allowance of  the number of pages of prosecution evidence  (‘PPE’).

 

2.                At the hearing on 4 July 2024 the Appellants were represented by counsel Mr Montgomery; the Defendants  were represented by Ms Quarshie, an employed barrister.

 

3.                At that hearing the Appellant argued what seemed to me to be  a new  point which was that that  in the course of the Defendant’s instruction there was a  a new “case” so that further fees were payable.    

 

4.                Despite directions having been sent out, I did not received any written case on the second issue (the PPE issue), as might have been anticipated under the directions. Although I indicated that I would be willing to adjourn this   issue,   at the hearing the  Appellant withdrew this element of the appeal on the basis that they would have the benefit of the some concessions made by the Respondent.

 

Background

 

5. The Defendant, Zara Jamadar, faced trial on an indictment which contained two counts of  counts of conspiracies   to supply class  B drugs (cannabis  and  spice), two counts of  Conspiracy to supply class A drugs (crack cocaine) (heroin);  and   a fifth count of Possessing criminal property (cash).He pleaded not guilty to these counts at the plea and trial preparation hearing (PTPH)  on 4 October 2021.  The trial started before Her Honour Judge Lloyd on 15 May 2023, but had to be stopped after three days due to the original defence team withdrawing on the grounds of professional embarrassment. Legal aid was in effect transferred  to the Appellants  in court on 17 May 2023 I would assume by the grant of   fresh Representation Order  to the Appellants), and the trial was relisted in November 2023.  

 

6. As some point  before the second trial an additional  charge was raised against  the Defendant of being  concerned in the supply of class A drugs. Mr. Montgomery says this occurred by the staying of an old indictment and  the preferring of a new indictment  with this additional charge  as a further count.   

 

7. I understand  that at a hearing on 23 October 2023 the Defendant pleaded guilty to the first two counts, but the prosecution proceeded on other counts. The relisted trial started on 13 November 2023, and concluded on 16 November when the defendant pleaded guilty to the  added count 6. This  together with the guilty pleas already entered, was acceptable to the prosecution.  The Defendant was sentenced on 14 February 2024 to 5 years 4 months imprisonment.

 

8. The Appellants were concerned that they were not allowed the correct  fee  asserting, as  I understand  it, that the Respondent has  refused to pay this claim as a "new trial”. Reference  has been made in the appeal to a note of  counsel which indicated that the matter was raised before the judge on the second trial in which counsel wrote:    "Judge was emphatic that it was a fresh trial. Inconceivable that anyone at the LAA would think otherwise.” There is a written communication   to similar effect from the  same judge.

 

9. Before turning the specific issues that arise, it is  important to note   that it is not said by the Respondent  there was one continuous trial . It appears that the Appellants were concerned that the Respondents have not acknowledged that there were two separate trials.  It is as I see it     common ground that there were two trials. There was a different judge, different counsel and   a different litigator representing the Defendant at the second trial.  The issue is not whether there were two trials.   As Costs Judge Rowley commented in R v Khan  [2022] EWHC 1274 (SCCO) regrettably  when judges speak of there being a new trial solicitors interpret this as being an entitlement to a full trial fee.   As the rules make clear (and I have set them out below)  just because there are two trials it does not mean that a full fee is payable for the second trial.

 

 

One or two cases? 

 

 

10.            Schedule 2 of the 2013  Regulations sets the remuneration to be paid  to a litigator under the Graduated Fee scheme.  The Schedule applies to “every case on indictment” [para. 2].  Fees are paid per case; thus where there are two cases, the litigators (the solicitors) would be entitled to two separate fees . Schedule 2, also provides the following definition of ‘case’:-

 

“1.—(1) In this Schedule— 

“case” means proceedings in the Crown Court against any one assisted person— 

        (a) on one or more counts of a single indictment;

 

 

11.            The question  as to whether there is a new case is a different one  from the question at  whether there was a new or fresh trial. If the Appellants were instructed on a  new case then there would as I understand be entitlement to full fee for that  new case. However it is plain to me that there was no new case  here. Even if it were right that the fresh count were introduced by  a process of staying an indictment and preferring  a fresh indictment, it does not follow that there is a new case for the purposes of the Regulations. Whilst  it  seems to me that  Mr. Montgomery may well also right to say that the addition of the new  count did add something in substance and indeed may have given rise to a wider factual enquiry, it does not follow from this either that there  was  a new case.   The mere addition of  new count by a process of staying an on old indictment and preferring a new one in order to achieve an amendment of this sort does not, in my judgment, give rise to a new case for the purposes of the Regulation. My reason for  this view  are set out in    R. v Mohamed (Sohidul) [2024] EWHC 308 (SCCO) and the preceding cases referred to in that decision; it is not necessary for me to rehearse them. I am not sure that  Mr. Montgomery really made a determined effort  to perusade me to take a different  approach from the one I had taken in Mohamed, nor was I  persuaded that I should do so. In this case the allegations after amendment of the indictment  were not  so substantially different  in nature to the allegations before it that it could be regarded  as a new case (see   [21] of Mohamed). It seems to me it would  be clearly wrong for a new fee to be payable for a new case. Presumably it would mean that if  the amendment were made after transfer, the Appellants would be entitled to  two fees  one for before the addition of the new charge and one for before. 

 

 

 

Before trial transfer - trial (new litigator) fee ?     12.            Schedule 2 of the 2013  Regulations provides as follows:     Retrials and Transfers   13.—(1) Where following a trial an order is made for a retrial and the same litigator acts for the assisted person at both trials the fee payable to that litigator is— (a) in respect of the first trial, a fee calculated in accordance with the provisions of this Schedule; and (b) in respect of the retrial, 25% of the fee, as appropriate to the circumstances of the retrial, in accordance with the provisions of this Schedule. (2) Where— (a) a case is transferred to a new litigator; or (b) a retrial is ordered and a new litigator acts for the assisted person at the retrial, the fee payable to the original litigator and the new litigator is a percentage of the total fee, calculated in accordance with the table following this paragraph, as appropriate to the circumstances and timing of the retrial, transfer or withdrawal of the section 16 determination.   (3) In sub-paragraph (2), “transfer” includes the making of a section 16 determination in favour of an individual who, immediately before the making of the section 16 determination— (a)had represented themselves; or (b)had been represented (otherwise than pursuant to a section 16 determination) by the litigator named in the order, and for the purposes of that sub-paragraph the litigator is to be treated as a new litigator.         ….   13.           The  Table referred to  sub regulation (2)  above is as follows (my italics):

Retrials and Transfers

Scenario	Percentage of the total fee	Case type to be used to determine total fee	Claim period
Cracked trial before retrial, where there is no change of litigator	25%	Cracked trial
Retrial where there is no change of litigator	25%	Trial
[Transfer at or before the first hearing at which the assisted person enters a plea]4 (original litigator)	25%	Cracked trial
[Transfer at or before the first hearing at which the assisted person enters a plea]4 – guilty plea (new litigator)	100%	Guilty plea
[Transfer at or before the first hearing at which the assisted person enters a plea]4 – cracked trial (new litigator)	100%	Cracked trial
[Transfer at or before the first hearing at which the assisted person enters a plea]4 – trial (new litigator)	100%	Trial
Before trial transfer (original litigator)	75%	Cracked trial
Before trial transfer - cracked trial (new litigator)	100%	Cracked trial
Before trial transfer - trial (new litigator)	100%	Trial
During trial transfer (original litigator)	100%	Trial	Claim up to and including the day before the transfer
During trial transfer (new litigator)	50%	Trial	Claim for the full trial length
Transfer after trial or guilty plea and before sentencing hearing (original litigator)	100%	Trial, Cracked trial or Guilty plea as appropriate	Claim for the full trial length, excluding the length of the sentencing hearing
Transfer after trial or guilty plea and before sentencing hearing (new litigator)	10%	Trial	Claim for one day or for the length of the sentencing hearing if longer than one day
Transfer before retrial (original litigator)	25%	Cracked trial
Transfer before cracked retrial (new litigator)	50%	Cracked trial
Transfer before retrial (new litigator)	50%	Trial	Claim for the full retrial length
Transfer during retrial (original litigator)	25%	Trial	Claim up to and including the day before the transfer
Transfer during retrial (new litigator)	50%	Trial	Claim for the full retrial length
Transfer after retrial or cracked retrial and before sentencing hearing (original litigator)	25%	Trial or Cracked trial as appropriate	Claim for the full retrial length, excluding the length of the sentencing hearing
Transfer after retrial or cracked retrial and before sentencing hearing (new litigator	10%	Trial	Claim for one day or for the length of the sentencing hearing if longer than one day.

 

14.            Mr. Montgomery     argued   that  as matter of statutory  interpretation it was possible to accommodate the conclusion that in the  case   the  Appellants were entitled to 100% of the  fee on the basis that the second trial  was a new “trial” and not a “retrial” . Because of the change in judge, jury, solicitors, counsel, a new indictment, it would- he says- be inaccurate to describe  the  situation (and entitlement to fees) as  resulting from a transfer before “retrial”.

15.              It seems to me  however to be clear that  the term ‘retrial’ covers the situation here, even though  there  was, as here, a new trial.  The descriptions set out in the Table are derived from the provisions of Regulations 13 (1 and (2)  which make it  clear that in any one case  there may a trial followed by a retrial.  The  first trial in this case was the “trial” and,  and    at the risk of stating the   obvious, the  second trial must have been “retrial” for these purposes.  In   circumstance where there was a transfer to a new litigator it must follow  that the second trial   after  transfer was a retrial. There was nothing particularly unusual in a retrial  taking place before a different judge  and with different counsel; the fact that a  litigator  may change under this scenario  is plainly envisaged by the rules.    It seems to me that the Table, read more generally, only really  makes sense  if this is the right construction   of  ‘trial’ and “retrial’ even if these terms are not expressly defined.   

 

 

16.            I fully understand that in this case there may have been more work  than might  have been normal  for a retrial  because as I understand   none (or very   little) of the  papers held by the first litigator were    transferred over  to the Appellant. It is said that the Appellant  had to start from ‘scratch’. But I do not think this matter can affect the interpretation of the Regulations where they are clear. There plainly is a  basis for thinking that even where  there is retrial after transfer to a new litigator it could involve  less work than the original trial.

 

Costs of the appeal

 

17.            Some success has been achieved in this appeal but not on the points in issue at the hearing. I propose  allowing a fee of £175  by way of contribution the Appellant’s  costs to reflect  the partial success. If either  party   disagree with this then they should  email their submission to me within 7 days of receipt of this  decision. But in the  absence of any further submissions this should stand as my decision on the issue of costs of the appeal.

 

 

 

 

 

 

COSTS JUDGE BROWN