R v Horsfall

For criminal legal aid remuneration, the existence of multiple indictments does not by itself establish multiple cases or entitle solicitors to multiple graduated fees. The court must examine whether the indictments were merely administrative iterations or represented genuinely freestanding cases. Where an earlier indictment concerned a distinct charge, existed for several months, required separate work and could have proceeded independently if the later proceedings had failed, it may constitute a separate case. The fact that the indictments might have been joined, or that one was described as subsumed into the other, does not determine entitlement where joinder did not occur.

IMS Law Limited appealed under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The determining officer had refused a further cracked-trial fee in respect of an indictment charging possession of a firearm and ammunition, in addition to the graduated fee paid for later conspiracy proceedings. The possession indictment was stayed after the later conspiracy indictment was brought forward. The central issue was whether the appellant’s client had faced two separate cases, or only one case represented by successive or overlapping indictments.

1. The appeal was allowed. The solicitors were entitled to the appropriate additional payment, together with £750 exclusive of VAT for the appeal costs and the £100 paid on appeal.
2. The mere existence of more than one indictment is insufficient to justify more than one fee. Indictments that are administrative versions or contain only minor amendments do not ordinarily constitute separate cases.
3. The possession indictment and conspiracy indictment were, however, freestanding indictments. The possession indictment was the only indictment for several months, and work undertaken during that period related solely to it. Its underlying evidence could have supported a separate prosecution if the conspiracy proceedings had been abandoned or had resulted in acquittal.
4. The intended joinder of the indictments, and the prosecution’s description of the possession indictment as subsumed into the conspiracy counts, did not alter the result because joinder never occurred. If joinder had occurred, only one fee would have been payable under the Criminal Legal Aid (Remuneration) Regulations 2013.
5. The graduated-fee schemes involve risks and benefits for litigators. The fortuitous origin of the separate indictments did not justify treating them as one case after the proposed joinder failed to take place.

• High Court (Senior Court Costs Office): Costs Judge Rowley allowed the appeal against the determining officer’s decision under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013.