R v Muhibur Rahman

For the purposes of hardship payments under the Criminal Legal Aid (Remuneration) Regulations 2013, remuneration must reflect the work actually done up to the application. A case is not a cracked trial merely because a not guilty plea has been entered and a trial has been listed, where the trial is subsequently adjourned and the advocate withdraws before the main hearing.

Where an interlocutory advocate has received an incorrectly calculated hardship payment, the trial advocate is not responsible for recovering the overpayment. The Legal Aid Agency must recalculate the case fees and pay the trial advocate the proper amount, deducting only the standard appearance fees properly due to the earlier advocate.

Mr Robert Smith, counsel, appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency’s determination of his graduated fee claim.

The proceedings concerned five defendants charged with kidnapping and assault-related offences. Mr Patrick Cassidy initially represented the defendant and obtained a hardship payment calculated by reference to a cracked trial fee. He withdrew before the substantive hearing. Mr Smith later represented the defendant at the hearing at which the defendant pleaded guilty and was sentenced.

The issues were whether Mr Cassidy’s hardship payment had been calculated correctly and whether Mr Smith should bear responsibility for recovering any overpayment.

1. The appeal was allowed. The case fees were to be recalculated and paid to Mr Smith, with the value of the standard appearance fees payable to Mr Cassidy deducted. Mr Smith was also awarded the £100 appeal fee.
2. Under paragraph 21(5) of the Criminal Legal Aid (Remuneration) Regulations 2013, a hardship payment must not exceed reasonable remuneration for the work done by the representative up to the date of the application. Mr Cassidy’s payment was therefore not properly calculated by reference to a cracked trial fee.
3. The case had not become a cracked trial. Although a not guilty plea had been entered and a trial had been listed, the trial was adjourned and Mr Cassidy withdrew before the main hearing took place.
4. Mr Smith was the trial advocate who conducted the main hearing and was accordingly entitled to the main payment. His fee could not properly be limited to £126 plus VAT.
5. Where the Legal Aid Agency has incorrectly paid an interlocutory advocate, the trial advocate is not required to recover the overpayment. Any recovery from Mr Cassidy was a matter for the Respondent.

The appeal was brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against a determination by the Legal Aid Agency’s Determining Officer. The High Court (Senior Court Costs Office) allowed the appeal and directed recalculation and payment of the case fees.