SVS Solicitors v The Lord Chancellor

For graduated criminal legal aid fees, a case is a trial only where proceedings have begun in a meaningful sense. Swearing a jury is not conclusive. A trial may begin before empanelment where legal submissions form part of a continuous process leading to empanelment, opening and evidence, or where substantial case management is undertaken in a long case. Ordinary pre-trial preparation, including agreement of evidence and jury bundles, does not by itself meet the threshold. The court must assess how events unfolded and whether the work was substantial and sufficiently connected with the trial process.

SVS Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s decision that the proceedings did not qualify for a trial fee. The defendant had been due to stand trial on attempted murder and related charges. On the listed trial date he pleaded guilty to the wounding and bladed-article counts. The prosecution then accepted those pleas and did not proceed immediately with the attempted-murder counts.

The issue was whether the case had proceeded to trial or was instead a cracked trial for fee purposes.

1. Appeal dismissed. The case did not proceed to trial in a meaningful sense, and the determining officer had correctly treated it as a cracked trial. There was no order as to the costs of the appeal.

2. The court adopted the guidance in Lord Chancellor v Ian Henery Solicitors Limited [2011] EWHC 3246 (QB). Whether a jury has been sworn is not conclusive. A trial may begin through opening and evidence, a continuous process leading to those stages, or substantial case management in a long case. Conversely, swearing a jury does not suffice where there has been no trial in a meaningful sense.

3. Ordinary case management is insufficient where trial has not opened. Work concerning witnesses, agreed facts, evidence and jury bundles will generally be pre-trial preparation unless it involves detailed and substantial issues requiring judicial resolution.

4. The discussions after the guilty pleas were limited. The parties were still considering whether any trial would take place, and substantial adversarial case management was absent. The events did not form part of a continuous process leading to empanelment, opening and evidence.

The appeal was brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s decision that the trial had not commenced in a meaningful sense. The High Court (Senior Court Costs Office) dismissed the appeal.