B e f o r e :

COSTS JUDGE WHALAN ____________________

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Appellants: Altaf Solicitors Ltd. ____________________

HTML VERSION OF JUDGMENT ON APPEAL UNDER ____________________

COSTS JUDGE WHALAN

Altas Solicitors ('the Appellants') appeal the decision of the Determining Officer at the Legal Aid Agency ('the Respondent') in a claim under the Litigator's Graduated Fees Scheme ('LGFS'). The issue for determination is whether the fee allowed for the hearing on 5 th February 2024 should be paid as a trial, as claimed, or as a cracked trial, as allowed.

The Appellants represented Ms Ladine Eastwood and Mr Nasar Mohammed ('the Defendants'), who were charged at Sheffield Crown Court on an indictment alleging three counts of possession of Class A and B drugs with intent to supply. Both defendants pleaded not guilty at a Pre-Trial Preparation Hearing on 14 th September 2022. The trial was eventually listed on 5 th February 2024.

On 5 th February 2024, when the Appellants represented Ms Eastwood only, the Court Log records that the case was called on at 12:40. Prior to that point, the prosecution and defence advocates had discussed and agreed an "Agreed facts document", a 5.5 page agreed narrative. When the case was called on, the prosecution accepted guilty pleas from the Defendant's co-accused, whereupon no evidence was offered against the Defendant. At 12:47, therefore, she was formally acquitted and the hearing concluded at 12:52.

The Representation Order is dated 17 th August 2022 and the applicable regulations are the Criminal Legal Aid (Remuneration) Regulations 2013 (the '2013 Regulations'), as amended.

The Determining Officer cites paragraph 1(1)(a) of Schedule 2 to the 2013 Regulations, which states:

I was referred by both the Appellants and the Respondent to the guidance in Lord Chancellor v. Ian Henery Solicitors Limited [2011] EWHC 3246 (QB) where Mr Justice Spencer stated (at para. 96) that:

I am referred additionally to numerous previous decisions of the SCCO on this issue, including R v. Barnes [2022] EWHC 1529 (SCCO), R v. Cox [2023] EWHC 270 (SCCO) and R v. Lamondy [2024] EWHC 22 (SCCO) . I have considered the other cases cited by the parties and I only cite specifically to the most recent decisions.

The Respondent's case is set out in Written Reasons dated 9 th October 2024. By e-mail dated 19 th March 2025, the Respondent informed the court that they did not propose to attend the oral hearing on 28 th March 2025, or make any further written submissions.

The Appellants' case is set out in Grounds of Appeal and in a Skeleton Argument drafted by Mr Wells, counsel, dated 19 th February 2025. These submissions incorporate a Note drafted by Mr Altas Hussain, dated 19 th March 2025 and a further Trial Note drafted by Mr Andrew Walker, the Higher Court Advocate, who represented the Defendant on 5 th February 2024. The Appellants have also lodged an Appeal Bundle (pp. 1-88), which contains all the relevant documents.

The Respondent, in summary, notes that no jury was selected or sworn and the prosecution case was not open, while acknowledging that these factors are not determinative. As such, submits the Determining Officer, there was no trial in a meaningful sense, as there was no evidence of substantial case management.

Particular reference is made to the case of R v. Barnes (ibid), a recent decision of CJ Rowley, in which the court noted that 'substantial' case management 'must mean more than the expected pre-trial preparation regarding matters such as bundles and evidence'. CJ Rowley also noted that modern practice had developed pragmatically since Henery (ibid), particularly as a result of the pandemic, with the result that it was more common for tasks that would historically have been undertaken before the hearing, to be dealt with during the trial.

The Appellants, in summary, rely effectively on paragraph 96(6) of the guidance in Henely (ibid), submitting that events at court prior to the case being called on at 12:40 constituted substantial matters of case management, with the result that the trial had begun in a meaningful sense. The (fairly detailed) 'Agreed facts document' was lodged by the prosecution at about 10:44 on the morning of the trial. For two hours before the case was called on by the judge, the advocates engaged in a proactive amendment to the document, and it was these discussions which led, in due course, to the co-defendant changing his plea and the prosecution offering no evidence against the Defendant. On the particular circumstances of this case, submits Mr Wells, that constituted substantive case management. The usual pre-trial preparation had been completed before the date of the trial, meaning that what occurred on the morning of the hearing could not be classed properly as the standard, expected, pre-trial preparation.

Each case turns necessarily on its particular facts, but the events of this case, in my conclusion, do not justify the conclusion that the trial had effectively begun. Although the editing of the 'Agreed facts document' may have had some persuasive bearing on the decision of the co-defendant to change his plea, the exercise nonetheless amounted to the usual pre-hearing administration typical of a complex drugs case. No judicial intervention, determination or indication was sought, and it could not be said, in my conclusion, that substantive case management had been undertaken. Accordingly, this appeal is dismissed.