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	England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Eastwood & Anor. R. v [2025] EWHC 832 (SCCO) (07 April 2025) URL: https://www.bailii.org/ew/cases/EWHC/Costs/2025/832.html Cite as: [2025] EWHC 832 (SCCO)

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IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE

Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013

		Thomas More Building Royal Courts of Justice London, WC2A 2LL
		7th April 2025

The appeal has been unsuccessful, for the reasons set out below.

COSTS JUDGE WHALAN

Introduction
1. 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.
Background
2. 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.
3. 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 Regulations
4. 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.
5. The Determining Officer cites paragraph 1(1)(a) of Schedule 2 to the 2013 Regulations, which states:

"cracked trial" means a case on indictment in which –

(a) a plea and case management hearing take places and –

(i) the case does not proceed to trial (whether by reason of pleas of guilty or for other reasons) or the prosecution offers no evidence; and

(ii) either –

(aa) in respect of one or more counts to which the assisted person pleaded guilty, the assisted person did not so plead at the plea and case management hearing; or

(bb) in respect of one or more counts which did not proceed, the prosecution did not, before or at the plea and case management hearing, declare an intention of not proceeding with them; or

(b) the case is listed for trial without a plea and case management hearing taking place…

Case guidance
6. 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:

96. I would summarise the relevant principles as follows:

(1) Whether or not a jury has been sworn is not the conclusive factor in determining whether a trial has begun.

(2) There can be no doubt that a trial has begun if the jury has been sworn, the case opened, and evidence has been called. This is so even if the trial comes to an end very soon afterwards through a change of plea by the defendant, or a decision by the prosecution not to continue (R v. Maynard, R v. Karra).

(3) A trial will also have begun if the jury has been sworn and the case has been opened by the prosecution to any extent, even if only for a very few minutes (Meek and Taylor v. Secretary of State for Constitutional Affairs).

(4) A trial will not have begun, even if the jury has been sworn (and whether or not the defendant has been put in the charge of the jury) if there has been no trial in a meaningful sense, for example because before the case can be opened the defendant pleads guilty (R v. Brook, R v. Baker and Fowler, R v. Sanghera, Lord Chancellor v. Ian Henery Solicitors Limited (the present appeal)).

(5) A trial will have begun even if no jury has been sworn, if submissions have begun in a continuous process resulting in the empanelling of the jury, the opening of the case, and the leading of evidence (R v. Dean Smith, R v. Bullingham, R v. Wembo).

(6) If, in accordance with modern practise in long cases, a jury has been selected but not sworn, then provided the court is dealing with substantial matters of case management it may well be that the trial has begun in a meaningful sense.

(7) It may not always be possible to determine, at the time, whether a trial has begun and is proceeding for the purpose of the graduated fee schemes. It will often be necessary to see how events have unfolded to determine whether there has been a trial in any meaningful sense.

(8) Where there is likely to be any difficulty in deciding whether a trial has begun, and if so when it began, the judge should be prepared, upon request, to indicate his or her view on the matter for the benefit of the parties and the determining officer, as Mitting J. did in R v. Dean Smith, in the light of the relevant principles explained in this judgment.

7. 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 submissions
8. 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.
9. 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.
My analysis and conclusions
10. 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.
11. 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.
12. 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.
13. 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.