R v Freeman

Where the applicable rules reduce the “graduated fee” payable for a retrial, the reduction applies to the fee as a whole, including daily attendance fees, unless the rules provide otherwise. A previous scheme’s express exclusion of a fee component supported that reading of the current scheme.

An advocate’s attendance may justify a daily attendance fee where an official court list identifies a trial and indicates the defendant’s production, despite a prior judicial indication that no trial sitting is required. Whether the inconsistency justifies attendance depends on the circumstances.

Laurence Selby KC, the advocate for Harrison Freeman in R v Freeman, claimed fees for a trial and retrial. The Determining Officer applied the retrial percentage reduction to the whole graduated fee, including daily attendance fees, and disallowed a daily attendance fee for 23 October 2025.

Selby appealed both decisions. The first issue was whether the percentage reduction applied to daily attendance fees. The second was whether the court listing for 23 October, which conflicted with what the judge had said the previous day, justified counsel’s attendance and a daily attendance fee.

1. The appeal succeeded in part. The appeal against applying the percentage reduction to daily attendance fees was dismissed. The appeal concerning attendance on 23 October 2025 was allowed.
2. Under paragraph 2(3) of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013, the retrial fee is the graduated fee calculated under the applicable Part, reduced by the relevant percentage. Paragraph 4 of Part 2 treats the basic fee and daily attendance fee as components of the graduated fee. The words “the fee” did not indicate a narrower reduction limited to the basic fee. The judge considered it significant that the earlier scheme had expressly excluded the refresher element from its reduction. The possibility of some duplicated preparation for trial days also supported applying the reduction to daily attendance fees. Arguments about unfairness, the timing of an election, and tax or accounting complications did not displace the wording.
3. For 23 October, the judge had told the parties the previous afternoon that attendance was unnecessary unless a conference was needed, and the court log recorded that the court would not sit. However, the official Daily List identified the case as “For trial”, named all six defendants and stated that Freeman was to be produced that day. The inconsistency was sufficient, on balance, to justify counsel’s attendance and a daily attendance fee. The possibility that other counsel might have relied on the judge’s statement did not determine the issue.

The Respondent was ordered to pay the Appellant’s costs of £350.

1. Determining Officer: Applied the retrial percentage reduction to the whole graduated fee and disallowed a daily attendance fee for 23 October 2025.
2. High Court (Senior Court Costs Office): Dismissed the appeal on application of the percentage reduction, allowed the appeal on the 23 October attendance fee, and ordered the Respondent to pay £350 costs.