R v Kieran Tongue

For remuneration purposes, a trial may begin in a meaningful sense before the jury is selected or sworn and before the prosecution opens its case. The decisive question is what factually took place. Where a substantive evidential application is made at the outset, legal argument is heard, and the trial judge is asked to give guidance or make a ruling material to the trial’s outcome, the trial has begun. Such an application may also amount to substantial case management. The court should avoid an interpretation that discourages constructive cooperation or best-practice conduct merely to secure a trial fee.

The appellant solicitor appealed against the redetermination of remuneration for work undertaken in criminal proceedings. The defendant had pleaded not guilty and a trial was listed. At the outset of the listed trial, the prosecution made a bad character application. The judge heard full submissions and ruled that evidence concerning the defendant’s previous conviction, drug markers on a vehicle, and related telephone messages was admissible. Following a short adjournment, the defendant was re-arraigned and pleaded guilty.

The determining officer considered that the trial had not begun and allowed only a cracked trial fee. The issue was whether the proceedings on the trial date amounted to a trial for remuneration purposes.

1. Appeal allowed. The proceedings amounted to a trial for remuneration purposes. The appellant’s appeal costs were summarily assessed at £750, including counsel’s fee and the £100 appeal fee.
2. The absence of a jury, and the fact that the prosecution had not opened its case, did not determine the issue. The court had to examine what factually took place and decide whether the trial had begun in a meaningful sense.
3. A bad character application was advanced at the outset of the trial. It involved contested legal argument and required a ruling on the admissibility of evidence said to link the defendant with the offence. The judge’s ruling was material to the outcome of the trial.
4. Where judicial guidance is sought and provided, and the trial judge makes a determination material to the proceedings, the trial may be treated as having begun in a meaningful sense. The admissibility ruling also amounted to substantial case management.
5. The court concurred with the guidance in Lord Chancellor v Ian Henery Solicitors Limited, R v Desmond Kelville, R v Dale and R v Gordon Lamonby. An e-mail from a court clerk was neither necessary nor determinative; the court had to consider the events themselves.
6. The interpretation should not penalise constructive and pragmatic advocacy, or encourage parties to seek direct judicial intervention merely to establish entitlement to a trial fee. The defence’s cooperative conduct therefore did not prevent the proceedings from constituting a trial.

The judgment records an appeal against a determining officer’s redetermination, which had allowed only a cracked trial fee. The High Court (Senior Court Costs Office) allowed the appeal and assessed the appellant’s appeal costs at £750.