Regina v Tariq Ajaib

Whether a trial has begun in a meaningful sense for the purposes of the graduated fee schemes requires a broad, pragmatic and case-specific assessment. The fact that a jury has been selected or sworn is relevant but not conclusive. Substantial case management may occur without formal contested argument or a judicial determination; however, attendance at court, negotiations and a change of plea will not necessarily amount to substantial case management. Where the trial has not begun in a meaningful sense, the claim is remunerated as a cracked trial rather than as a trial.

Mitchells Solicitors LLP appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency’s assessment of a graduated fee claim. The dispute concerned whether the hearing listed for trial on 7 June 2021 qualified as a trial or a cracked trial.

A jury had been selected and empanelled but not sworn. Following a co-defendant’s guilty pleas, the defendant pleaded guilty to one count before the jury was sworn. The central issue was whether the events of that day, including negotiations and directions by the trial judge, constituted substantial case management such that the trial had begun in a meaningful sense.

1. The appeal was dismissed. The Legal Aid Agency had correctly assessed the claim as a cracked trial rather than a trial.

2. The guidance in Lord Chancellor v Ian Henery Solicitors Limited [2011] EWHC 3246 (QB) required a broad and pragmatic assessment on a case-by-case basis. Whether a jury had been sworn was not conclusive.

3. The phrase substantial matters of case management was not confined to a formal voire dire or to contested submissions followed by a determination. A judge could oversee substantial case management with a comparatively light touch, as illustrated by the approach in R v Coles.

4. On the facts, the parties’ attendance for most of the day, the selection of the jury, the negotiations and the prosecution’s change of position did not amount to substantial case management. The change of plea by the co-defendant had precipitated the events, and the defendant’s plea was unexpected by the defence. The trial had therefore not begun in a meaningful sense.

• Senior Courts Costs Office: Appeal under regulation 29 from the Determining Officer’s assessment of the claim as a cracked trial. Appeal dismissed.