R v Lee

Under the Litigators’ Graduated Fee Scheme, a trial begins when the jury has been sworn and the prosecution has opened the case to any extent. The fact that the jury is later discharged does not permit a second full trial fee in the same case.

Schedule 2 provides for one full trial fee and, where appropriate, a lesser retrial fee. Following a transfer of legal aid after the first trial has begun, the new litigator is therefore entitled to the fee applicable to a transfer during trial or, if the later proceedings constitute a retrial, the fee applicable to a transfer before retrial. Neither route permits a second full trial fee.

Garrick Law represented the defendant in Crown Court proceedings under legal aid. The defendant’s first jury was sworn on 15 April 2024, and the prosecution began its opening. The jury was discharged on 18 April. Legal aid was transferred to Garrick Law on 23 April, and a new jury was sworn on 25 April.

The Legal Aid Agency allowed a 50% trial fee for a new litigator on a transfer during trial. Garrick Law appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013, seeking a 100% fee on the basis that the trial began only on 25 April, or that a new trial began after the transfer.

1. Appeal dismissed. The fee allowed by the determining officer was upheld.
2. Costs Judge Leonard held that the court was bound by Lord Chancellor v Henery, [2011] EWHC 3246 (QB). A trial begins when the jury has been sworn and the prosecution has opened the case to any extent, even for a very short time. The trial therefore began on 15 April, when the prosecution opened its case.
3. The construction of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 also precluded the appeal. The definition of a case in paragraph 1(1) means that only one set of fees is payable for each case. The scheme provides for one trial fee and, where appropriate, a lesser retrial fee. It does not provide for two full trial fees in the same case.
4. If the proceedings commencing on 25 April were treated as a continuation of the original trial, the transfer was a transfer during trial. If they were treated as a new trial after an abortive trial, the correct characterisation would be a transfer before retrial. In either event, the fee payable to the new litigator was the same.
5. R v Nettleton, [2013] 1 Costs L.R. 186, illustrated when a sufficient procedural and temporal break may give rise to a new trial, but did not support payment of a second full trial fee. R v Jamadar, [2024] EWHC 1979 (SCCO), reflected the established approach. R v Charlie George, [2023] EWHC 2187 (SCCO), was distinguishable because it concerned the Advocates’ Graduated Fee Scheme in Schedule 1, which uses different terminology.

Legal Aid Agency: The determining officer allowed a 50% trial fee for a new litigator on a transfer during trial. The High Court (Senior Court Costs Office) dismissed the appeal.