Lord Chancellor v Ian Henery Solicitors Ltd

For the graduated fee schemes under the Criminal Defence Service (Funding) Order 2007, a case proceeds to trial only when it has begun in a meaningful sense. The swearing, selection or formal charging of a jury is relevant but not conclusive. A trial has plainly begun where the jury is sworn and the prosecution opens the case, even briefly, or evidence is called. Conversely, swearing a jury solely for administrative convenience does not make the case a trial where no substantive trial process follows. A trial may begin before a jury is sworn if substantial submissions form a continuous process leading to the jury, opening and evidence. Administrative guidance must reflect that fact-sensitive test.

The respondent solicitors represented a defendant charged on indictment in the Crown Court. A jury was empanelled and sworn on the first listed day, but was sent home without being put in charge. Before the prosecution opened the case or called evidence, the prosecution accepted guilty pleas to an added lesser count and the jury was discharged.

The Legal Services Commission paid the solicitors a cracked-trial fee. Costs Judge Gordon-Saker allowed their appeal, holding that the case had proceeded to trial once the jury was sworn. The Lord Chancellor appealed. The central issue was whether the case had proceeded to trial, rather than remaining a cracked trial, for the litigators’ graduated fee scheme.

1. Appeal allowed. The Costs Judge had erred in treating the swearing of the jury as determinative. The case was a cracked trial because it had not proceeded to trial in the required meaningful sense.

2. The definition of cracked trial in paragraph 1(1) of Schedule 2 to the Criminal Defence Service (Funding) Order 2007 turns on whether the case did not proceed to trial. That is a fact-sensitive inquiry. The presence, selection, swearing or formal charging of a jury is not a rigid trigger.

3. The court approved the analysis in R v Bullingham. A trial plainly begins where a sworn jury hears an opening and evidence, and it also begins where the prosecution opens the case, even for a short time: see R v Maynard, R v Karra and Meek and Taylor v Secretary of State for Constitutional Affairs. A trial can also begin before a jury is sworn where substantial preliminary submissions form a continuous process leading to the empanelling of a jury, opening of the case and evidence.

4. Here, however, no substantial legal argument, evidential hearing, opening or evidence occurred. The jury was sworn for the convenience of the jurors and court administration, with a clear intention that the substantive trial would start the following day. There was therefore no trial in a meaningful sense.

5. The purported definition of trial in the Litigators’ Graduated Fee Scheme Guidance was inaccurate and incomplete. Days spent on disclosure, admissibility, abuse of process or public-interest-immunity matters may form part of a trial, depending on the circumstances. The solicitors’ costs order below was nevertheless left undisturbed.

• High Court (Queen’s Bench Division): The Lord Chancellor’s appeal was allowed in [2011] EWHC 3246 (QB). The court held that the case had not proceeded to trial for the graduated fee scheme.
• Costs Judge: Master Gordon-Saker had allowed the solicitors’ appeal from the Legal Services Commission and held that the case was a trial because the jury had been sworn.