R v O'Brien

Under the Criminal Legal Aid (Remuneration) Regulations 2013, a new trial in the advocates’ scheme and a retrial in the litigators’ scheme describe a separate further trial within the same case. A temporal or procedural break, or a judge’s description of proceedings as a new trial, does not create a new case unless the indictment has materially changed. Where there is one case and legal aid is transferred after an earlier trial but before a retrial, Schedule 2 provides a 50% fee for the new litigator, not a full trial fee. The mechanistic scheme gives the court no discretion to award more.

This was an appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 by Hodge Jones and Allen, solicitors who took over representation shortly before the October 2025 trial. The defendant had previously faced several listed or unfinished trials on the same indictment. The October trial proceeded after a substantial break, receipt of further evidence and a change of legal team, and ended in acquittal when the prosecution offered no evidence.

The Legal Aid Agency’s Determining Officer treated the proceedings as one case and allowed the appellant a 50% retrial fee. The appellant claimed a full trial fee, relying on the trial judge’s description of the hearing as a new trial. The central issue was whether the later trial was a new case attracting a full fee, or a retrial within the existing case.

Appeal dismissed. The Determining Officer had correctly allowed a 50% retrial fee.

1. Meaning of case. The court proceeded on the basis that there had been one case within paragraph 1(1) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013. A case concerns proceedings against one assisted person on one or more counts of a single indictment. The indictment had not materially changed. An entirely new indictment might plausibly create a new case, but that issue did not arise on these facts.
2. Trial and retrial. The terms new trial in Schedule 1 and retrial in Schedule 2 describe the same concept: a separate further trial ordered after an earlier trial, rather than a continuation of that trial. The relevant considerations are whether the court ordered a further trial and whether there was a sufficient breach in the temporal and procedural matrix. The October 2025 hearing was a separate new trial or retrial, but it remained part of the same case.
3. Fee consequence. Where there is one case, the advocate or litigator receives the graduated fee structure applicable to that case, not two full trial fees. A litigator who acts at a first trial and a retrial receives a trial fee and a retrial fee. Where a new litigator takes over after an earlier trial but before a retrial, paragraph 13 of Schedule 2 provides a 50% fee. It does not provide a 100% trial fee merely because the later hearing is called a new trial.
4. Application. The late transfer, additional evidence, substantial work and trial judge’s message did not alter the statutory classification. The court treated R v Curtis Howarth [2024] EWHC 310 (SCCO) and R v Curtis Howarth [2026] EWHC 249 (SCCO) as illustrating the distinction between a new trial and a new case. The Regulations operate mechanistically, so the court had no discretion to depart from the prescribed fee.

1. High Court (Senior Court Costs Office): On appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013, the court dismissed the appeal and upheld the allowance of a 50% retrial fee. The judgment is reported at [2026] EWHC 2410 (SCCO) .
2. Legal Aid Agency Determining Officer: Treated the proceedings as one case and allowed a 50% retrial fee. No separate citation was stated.