R v Kabir Hussain

For graduated criminal legal aid fees, a trial may begin before a jury is sworn where the court undertakes substantial matters of case management in a meaningful and continuous trial process. Routine pre-trial preparation is insufficient. A comparatively short hearing may qualify where the judge determines a genuinely contested application that materially affects the proceedings, including an abuse of process application. The assessment is fact-sensitive and may require consideration of how the hearing unfolded as a whole.

Belgravia Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency’s determination of their claim under the Litigator’s Graduated Fees Scheme. The issue was whether the hearing on 4 October 2023 attracted the fee for a trial or only the lower fee for a cracked trial.

The defendant had initially intended to proceed to trial. During the hearing, the court determined a contested abuse of process application and related evidential issues. The defendant later entered a guilty plea to an alternative indictment. The central issue was whether the court had dealt with substantial matters of case management so that the trial had begun in a meaningful sense.

1. Appeal allowed. The hearing fee was to be paid as a trial fee, together with repayment of the £100 appeal fee.
2. The governing guidance was summarised in Lord Chancellor v Ian Henery Solicitors Ltd [2011] EWHC 3246 (QB). Whether a trial has begun does not depend conclusively on the swearing of a jury, opening of the prosecution case or calling of evidence. A trial may begin without those events where substantial case-management matters are undertaken as part of a meaningful trial process.
3. Routine pre-trial preparation concerning bundles and evidence does not, without more, amount to substantial case management. The assessment remains fact-sensitive, and the court may need to examine how events unfolded.
4. On the facts, events before 12:21 did not constitute substantial case management. Between 12:41 and 13:15, however, the judge heard and determined a contested abuse of process application, together with submissions concerning CCTV, medical records and mobile-phone downloads. That application was determinative of the subsequent plea agreement. It therefore amounted to substantial case management and meant that the trial had begun in a meaningful sense.
5. The reasoning in R v Cox [2023] EWHC 270 (SCCO) supported the conclusion that a trial can effectively begin during a comparatively short hearing. No additional costs were awarded because there had been no oral hearing.

• Senior Courts Costs Office: The Determining Officer allowed the hearing fee as a cracked-trial fee.
• High Court (Senior Court Costs Office): On appeal under regulation 29, the appeal was allowed and the fee was directed to be paid as a trial fee: [2025] EWHC 646 (SCCO).