A2 Solicitors v The Lord Chancellor

Under the Litigators Graduated Fee Scheme, work connected with the execution of a bench warrant ordinarily falls within the existing graduated fee and does not create a separate case or trial fee. The warrant provisions apply only where the case does not proceed in the defendant’s absence. An after-sentence hearing fee may nevertheless be payable where hearings are listed to consider alteration of sentence under the Sentencing Code 2020, even if the court ultimately lacks jurisdiction to vary the sentence. Private-law estoppel cannot create an entitlement absent under the self-contained statutory scheme.

The appeal concerned remuneration claimed by solicitors who had represented a defendant at trial in 2018. The defendant absconded before sentence, was sentenced in his absence, and was arrested more than three years later. The solicitors represented him at three subsequent hearings in 2021.

The determining officer rejected claims for further remuneration. The solicitors argued that the Regulations and Crown Court fee guidance entitled them to a second trial fee, and alternatively relied on representations by the Legal Aid Agency. The central issues were whether the hearings attracted a further trial fee, an after-sentence hearing fee, or an entitlement by estoppel.

1. Outcome. The appeal succeeded in part. The solicitors were entitled to three after-sentence hearing fees, but not to a second trial fee.
2. There was no separate fee for a hearing listed for execution of a bench warrant. Under paragraph 14(2) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, remuneration for work in a case covered by Part 2 was included in the applicable graduated fee. A hearing connected with execution of the warrant did not constitute a new case.
3. Paragraph 23 of Schedule 2 did not apply. Its condition that the case must not proceed in the assisted person’s absence was not satisfied where the defendant had been tried and sentenced in his absence. The provision addressed an interruption of proceedings caused by non-attendance, and provided for interim payment and subsequent adjustment where its conditions were met.
4. The three 2021 hearings fell within paragraph 16 of Schedule 2. That provision covered a hearing under section 385 of the Sentencing Code 2020. The hearings had been listed to consider whether the sentence should be varied. The fact that the court might lack jurisdiction because of the statutory time limit or its constitution did not prevent the hearings from being hearings under that enactment. The fee was therefore payable.
5. The estoppel argument failed. The 2013 Regulations formed a self-contained statutory code, and the appeal jurisdiction required the Costs Judge to apply them. Private-law estoppel could not create an entitlement where the Regulations provided none. Any public-law remedy arising from representations would more appropriately be pursued by judicial review. In any event, the representations did not establish reliance giving rise to entitlement to second trial fees.
6. The Crown Court fee guidance was guidance for administering the scheme and was not a source of law. The question of the precise fee consequences where a warrant remained unexecuted for more than fifteen months and the trial resumed was left undecided.

The parties had seven days to make representations on the costs of the appeal.

1. Determining Officer: rejected the claims for a further trial fee and other remuneration.
2. High Court (Senior Court Costs Office): allowed the appeal in part, awarding three after-sentence hearing fees but rejecting entitlement to a second trial fee.