R v Curtis Howarth

For the purposes of the Litigator’s Graduated Fee Scheme, where a first trial is terminated by discharge of the jury and a further trial is subsequently held, the second hearing is subject to the retrial fee provisions. The absence of a formal order expressly described as an order for a retrial does not prevent that result where the second trial necessarily follows the termination of the first. The practical distinction between a retrial and a new trial is not material where the relevant fee scheme provides a reduced fee for the second trial. An erroneous payment of the full second-trial fee may be recouped under the applicable repayment provisions.

JMW Solicitors LLP appealed against a Legal Aid Agency determination concerning remuneration for representing a defendant in criminal proceedings. The first trial began in June 2022 but the jury was discharged on the second day after a juror disclosed a pre-booked holiday. A further trial took place in May and June 2023 and ended in acquittal.

Following an earlier appeal, the court had determined that there were two trials rather than one continuous trial. The issue on this appeal was whether the fee for the second trial should be calculated at the reduced retrial rate under paragraph 13 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, or whether it should attract a full trial fee because no formal retrial order had been made.

1. The appeal was dismissed. The earlier determination that the proceedings comprised a trial followed by a new trial did not establish an entitlement to a second full trial fee.

2. The 2013 Regulations are unhelpfully ambiguous because Schedule 2 uses the term “retrial”, whereas Schedule 1 uses “new trial” for a second hearing. Both provisions nevertheless adopt a formula reducing remuneration for the second trial.

3. For a claim under the Litigator’s Graduated Fee Scheme, there was no material practical distinction between a second trial which followed necessarily from discharge of the jury and a retrial ordered after a jury failed to reach a verdict. The second hearing therefore fell within paragraph 13 of Schedule 2, notwithstanding the absence of a formal order expressly labelled an order for retrial.

4. The Respondent had correctly applied the reductive provisions to the second trial. The prior authorisation of a full second-trial fee was an error, and the resulting overpayment could be recouped under Regulation 25.

The court preferred the Respondent’s submissions and dismissed the appeal.

1. High Court (Senior Court Costs Office) — In the present appeal under Regulation 29, the appeal against the Legal Aid Agency determination was dismissed.

2. High Court (Senior Court Costs Office) — The earlier decision in R v Curtis Howarth, [2024] EWHC 310 (SCCO), had allowed the appellants’ appeal and directed assessment on the basis of a trial followed by a new trial. That decision did not determine that the second fee was payable at the full trial rate.