R v Michael Pipe

For the purposes of the Litigator’s Graduated Fees Scheme, a trial may have begun in a meaningful sense before a jury is selected or sworn and before the prosecution opens its case. Substantial case management may be sufficient.

The assessment depends on the substance of what occurred. Relevant considerations include the duration of the hearing and whether the parties dealt with significant evidential or legal issues. Detailed negotiations which produce an agreed reduction in the factual basis of the prosecution case may amount to substantial case management. That is materially different from routine preparation or amendments concerning only the admissibility of evidence.

Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency’s assessment of their Litigator’s Graduated Fees Scheme claim. The Determining Officer treated a two-day hearing as a cracked trial.

The defendant had initially faced a conspiracy charge involving a substantially larger quantity of amphetamine. During the listed trial hearing, the parties negotiated an agreed basis of plea which materially reduced the alleged criminality. The issue was whether the hearing should be remunerated as a trial or as a cracked trial.

1. Appeal allowed. The claim was directed to be assessed as a trial, rather than a cracked trial, with costs of £1,000 plus any applicable VAT and repayment of the £100 appeal fee.
2. Under paragraph 1(1)(a) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, the question was whether the listed hearing had become a trial in a meaningful sense. The guidance in Lord Chancellor v Ian Henery Solicitors Ltd [2011] EWHC 3246 (QB) established that the swearing of a jury is not conclusive. A trial may begin without a sworn jury where the court is dealing with substantial matters of case management.
3. The assessment is fact-sensitive. The length of the hearing may indicate whether the court dealt with substantial case management rather than ordinary pre-trial preparation. The qualitative nature of the work is also important.
4. Here, the hearing lasted almost two days. The parties engaged in detailed negotiations concerning an 89-page prosecution timeline containing maps, mobile-phone downloads, cell-site analysis and other material. The negotiations did more than adjust the evidence admissible on the existing charge. They resulted in an agreed change to the factual substance of the alleged criminality and a substantially reduced sentencing basis.
5. That outcome distinguished the case from the evidential preparation considered in R v Barnes [2022] SCCO EWHC 1539 (SCCO). The hearing therefore involved substantial case management and the trial had begun in a meaningful sense.

High Court (Senior Courts Costs Office): appeal under regulation 29 allowed. The Legal Aid Agency’s assessment was varied so that the hearing was remunerated as a trial rather than a cracked trial.