R v Jamadar

Under the Graduated Fee Scheme, fees are payable per case, not per trial. A fresh indictment or an additional count does not create a new case where the allegations are not substantially different in nature. Where a first trial is followed by a retrial and the case transfers to a new litigator, the second trial is a retrial for remuneration purposes. The applicable fee is therefore the percentage prescribed for a transfer before retrial, even where the second trial involves a different judge, jury, legal team or indictment. The greater workload involved in preparing for the retrial cannot alter clear statutory wording.

The appellants, solicitors acting for a defendant in criminal proceedings, appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The defendant’s first trial was stopped after three days when the original defence team withdrew. The legal aid subsequently transferred to the appellants, and a second trial took place before a different judge and legal team. An additional charge had also been added.

The appellants sought remuneration on the basis that the second proceedings constituted a new case and a new trial, attracting a full fee. They also challenged the number of pages of prosecution evidence allowed. The central issues were whether the additional count created a new case and whether the second trial was a retrial for the purposes of the fee table.

1. Outcome. The appeal succeeded only to the extent that the appellants accepted an increased page count for prosecution evidence. It was otherwise unsuccessful.
2. Case or trial. Schedule 2 of the Criminal Legal Aid (Remuneration) Regulations 2013 provides remuneration per case. A case comprises proceedings in the Crown Court against one assisted person on one or more counts of a single indictment. The addition of a count, even through staying an indictment and preferring a new one, does not create a new case where the allegations after amendment are not substantially different in nature. The court followed the reasoning in R v Mohamed (Sohidul), particularly the approach identified at [2024] EWHC 308 (SCCO), para 21.
3. Retrial fee. Regulation 13 and its table distinguish a trial from a retrial within the same case. The first trial was the trial for these purposes, and the subsequent trial was the retrial. A transfer to a new litigator before the retrial therefore attracted the prescribed 50 per cent fee for a transfer before retrial, rather than the 100 per cent fee for a before-trial transfer leading to a new trial. The change of judge, jury, solicitors, counsel and indictment did not alter that construction. The decision in R v Khan [2022] EWHC 1274 (SCCO) was noted for the distinction between a judge describing proceedings as a new trial and an entitlement to a full trial fee.
4. Work undertaken. The fact that the appellants had to prepare substantially from the beginning could not affect the interpretation of clear regulations. The appeal costs were provisionally assessed by allowing £175 as a contribution, subject to further submissions within seven days.

• High Court (Senior Court Costs Office). Appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013; partially successful on the prosecution evidence page count and otherwise dismissed.