Lord Chancellor v Woodhall

Where a case is listed for trial before a plea and case management hearing, but that hearing is fixed to take place, discontinuance at or before the hearing must be treated as a guilty plea under the Criminal Defence Service (Funding) Order 2007. It does not qualify as a cracked trial merely because the hearing never proceeded to arraignment or case management. The Funding Order must be construed as a whole. Its provisions should, so far as possible, be read consistently and in a way that avoids anomalies. The scheme is rule-based and does not permit the court to award a fee by reference to the amount of work undertaken or perceived fairness of the remuneration.

The Lord Chancellor appealed under article 31 of the Criminal Defence Service (Funding) Order 2007 against a costs judge’s decision allowing Mr Woodhall, a barrister, a graduated fee for a cracked trial. Mr Woodhall had represented a defendant in a multi-handed drugs conspiracy case. A provisional trial date had been fixed, and a plea and case management hearing was later listed. Before that hearing could proceed, the prosecution discontinued the case. The central issue was whether the discontinuance fell within paragraph 2(9) of Schedule 1, requiring the case to be treated as a guilty plea, or within the definition of a cracked trial.

Appeal allowed. The fee payable was the fee for a guilty plea, not the fee for a cracked trial.

1. The appeal was limited to reviewing whether the costs judge’s decision was wrong. The High Court concluded that it was.
2. The hearing fixed for 24 January 2011 was, in substance, a plea and case management hearing. It had been designated and fixed as such. The defendant would have been arraigned and case-management directions would have been given had the prosecution not discontinued at the start of the hearing.
3. Alternatively, if the hearing was not treated as a plea and case management hearing, the case was discontinued before such a hearing. On the accepted facts, the hearing would have taken place that day if discontinuance had not occurred and the proposed dismissal application had failed.
4. Accordingly, paragraph 2(9) of Schedule 1 applied. The provision required a case on indictment discontinued at or before the plea and case management hearing, other than in the specified circumstances, to be treated as a guilty plea.
5. The definition of a cracked trial and paragraph 2(9) were consistent. The definition was ambiguous if read alone, but paragraph 2(9) made clear that a case listed for trial before a fixed plea and case management hearing was a guilty plea case if discontinued at or before that hearing. This construction avoided anomalies within the scheme.
6. The rule-based nature of the scheme meant that the court could not adjust the fee to reflect the substantial work undertaken or perceived unfairness. The principle in R v Grigoropolou [2012] 5 Costs LR 982 was relied on in support of that approach.

• High Court (Queen’s Bench Division): allowed the Lord Chancellor’s appeal from the costs judge. The case was to be treated as a guilty plea under paragraph 2(9) of Schedule 1 to the Criminal Defence Service (Funding) Order 2007.
• Costs Judge: allowed Mr Woodhall’s appeal from the Legal Services Commission and awarded a cracked-trial fee. The decision was reversed.