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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 >> Lee, R. v [2025] EWHC 584 (SCCO) (13 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2025/584.html Cite as: [2025] EWHC 584 (SCCO)

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IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE

		Thomas More Building Royal Courts of Justice London, WC2A 2LL
		13 March 2025

This Appeal has been dismissed for the reasons set out below.
COSTS JUDGE LEONARD
1. This appeal is governed by the Graduated Fee provisions of the Criminal Legal Aid (Remuneration) Regulations 2013. The relevant Representation Order was made on 22 December 2023, and the 2013 Regulations apply as in force at that date.
2. The issue on this appeal is whether the Appellant solicitors, who represented Jordan Lee ("the Defendant") in the Crown Court at York, should be paid the Graduated Fee appropriate to a trial that has started, or to a cracked trial (as defined below). The Appellant has been paid for a cracked trial, but maintains that a trial fee is payable.
3. Schedule 2 to the 2013 Regulations governs payment to Litigators under the Graduated Fee Scheme. Paragraph 1(1) of Schedule 2 provides definitions that are pertinent for the purposes of this appeal:

"…'cracked trial' means a case on indictment in which—

(a) the assisted person enters a plea of not guilty to one or more counts at the first hearing at which he or she enters a plea 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 first hearing at which he or she entered a plea; or

(bb) in respect of one or more counts which did not proceed, the prosecution did not, before or at the first hearing at which he or she entered a plea,

declare an intention of not proceeding with them; or

(b) the case is listed for trial without a hearing at which the assisted person enters a plea…"

4. "Trial" is not defined in the 2013 regulations, and in many cases (including this one) the question of whether a trial fee or a cracked trial fee is payable will depend on whether a trial had begun in a "meaningful sense", the test identified by Mr Justice Spencer in Lord Chancellor v. Henery [2011] EWHC 3246 (QB).
5. Whether that is so will depend upon the facts of the case. At paragraph 96 of his judgment Spencer J set out the principles by reference to which a court can determine the question:

"(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 a defendant, or a decision by the prosecution not to continue…

(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…

(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…

(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…

(6) If… 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… in the light of the relevant principles explained in this judgment."

The Background

6. The Defendant was arrested on 8 May 2020 and found to be in possession of Class A drugs and £150 in cash. After a long delay, in December 2023 he was charged with one count of possession of a Class A drug with intent to supply, and a second count of possession of a Class A drug, both counts being limited to the day of his arrest. On 25 January 2024, he pleaded not guilty to both counts. Trial was listed for 29 May 2024.
7. The Defendant served a defence statement on 6th March 2024, maintaining that the drugs were for his personal use. The Prosecution served an opening note on 28th May 2024.
8. On 29 May 2024 counsel for the Defendant, Mr Soni, was delayed in attending court. According to a note of his attendance at court, on arrival he held a conference with his client and worked on amendments to the Prosecution's proposed statement of agreed facts.
9. The note also records a discussion between Mr Soni and Prosecution counsel, Mr Davies, as to the Prosecution's proposed use of text messages from dates other than the single day specified in the indictment. Mr Soni argued that this was bad character evidence. Mr Davies indicated that he could amend the indictment period, but at that stage proposed just to introduce the messages as explanatory evidence.
10. The matter was called into court at 11.18 a.m. before the Recorder of York, HHJ Morris. There followed a seven minute hearing, of which I have been supplied with a transcript, which reads (insofar as pertinent) as follows:

"THE JUDGE: Right gentlemen, I thought I'd just ask you to see where we are in this ancient case.

DEFENCE COUNSEL: Yes, indeed. Well, perhaps I'll kick off. May it please your Honour, I defend, Mr Davies prosecutes. Can I thank your Honour firstly and apologise. Thank you to your Honour for affording me some time.

THE JUDGE: No problem.

DEFENCE COUNSEL: I have been delayed in my journey from Surrey, hence my delayed arrival. Yes, indeed, and so I haven't spent as long as I would have wished with my lay client.

THE JUDGE: Don't worry.

DEFENCE COUNSEL: But I am doing so now. Can I trouble your Honour for slightly longer? I won't take very much longer. The position is this, your Honour: that there are, of course, conversations that I'm having with my lay client. I don't seek a formal indication at this stage. But I wonder aloud, as it were, at this stage, whether judicial steer, I think perhaps is the non-technical term, in terms of disposal of this case, may be forthcoming. It certainly would assist my conversations your Honour will appreciate.

THE JUDGE: Yes.

PROSECUTION COUNSEL: Your Honour, if it would assist, in relation to the cocaine, which is clearly the main count, amounts to 34 wraps, just about 18 grams, in relation to amounts. The Crown would say category 3 street dealing. But there's an aspect from the messaging that he's doing it to friends on a social level as well.

THE JUDGE: Right.

PROSECUTION COUNSEL: Significant role. Your Honour will of course note the delay. The Crown will accept in this case there has been an inordinate and inexcusable delay. I say that in particular because the expert's witness statement was prepared in August 2022. The defendant was not charged until December of last year. That is, on anyone's account, inexcusable.

JUDGE: Yes, it is.

PROSECUTION COUNSEL: No record for this defendant as to drugs prior, but does have a record.

THE JUDGE: Let's just look at the guidelines again. (Pause). I've read all the messages in the exhibits. This is not vast broadcasting, is it, Mr Davies?

PROSECUTION COUNSEL: No, I don't say it is. Indeed, if you see my opening, your Honour, I'll seek to say this is not sophisticated commercial-level offending. It's the defendant either dealing locally or, indeed, supplying to nearby friends and associates. The highest point it goes to is a Snapchat message which is to about 20 persons. If your Honour was minded to say it was category 4, significant role, that would be a starting point of three years and six months' custody.

THE JUDGE: Sorry, if I was to say it was what?

PROSECUTION COUNSEL: Category 4, significant role, the starting point would be three years and six months' custody with a range of two years to five years. Your Honour, the defendant's last conviction was August 2021. That was for a matter concerning drunk and disorderly, given a conditional discharge of twelve months.

DEFENCE COUNSEL: I should say, if it's capable of assisting the position that we find ourselves in, the defendant, your Honour, will have seen has an antecedent record. It's many and varied, but as has very fairly been pointed out, nothing similar. The reason I rose at this stage is because the defendant's position has radically changed in that he is now in work, has stable accommodation and in a fruitful relationship with a partner and children. Of course, that has been achieved during the four years it has taken for this case to have come before the courts. So, I simply make those observations.

THE JUDGE: Yes. Well, it is such an inordinate delay. He is responsible for some delay, but that's only from the sending to here.

DEFENCE COUNSEL: Indeed.

THE JUDGE: I think I could be persuaded to keep the sentence to the two-year bracket which is suspendable.

DEFENCE COUNSEL: I am very grateful. Can I then trouble your Honour, can I also mention this because it would be remiss of me not to do so? I don't trouble your Honour at this stage in terms of a formal ruling, but your Honour knows that the Crown rely upon messaging in this case. The current state of the indictment is a single occasion on 8 May 2020, possession with intent to supply. There is messaging that spans a number of months prior to that incident. So, if this matter is to be a trial, and it is a big if at this stage, then, of course, there may be a question as to whether that messaging constitutes bad character or not. I simply lay that mark in the sand in case one needs to cross it.

THE JUDGE: Yes, well, I think probably the way to deal with that -- and this is a typical CPS indictment, they always charge possession with intent to supply on one day when the evidence is over months -- is simply to expand the indictment dates.

DEFENCE COUNSEL: Your Honour, the position I was going to take was, not wanting to move the goalposts, my learned friend was to keep it to the one date and say, it's there to rebut, as it were, any suggestion that, well, you don't see the defendant doing this on other days, how could it be just this one day? But if your Honour's minded to say the correct course is to amend the indictment, entirely fair likewise.

THE JUDGE: Well, it's not going to cause any --

DEFENCE COUNSEL: -- impact either way.

THE JUDGE: -- difficulties for the defence. The issue is the same. So anyway, let's see where we are.

PROSECUTION COUNSEL: Your Honour understands why I raise that at this stage.

THE JUDGE: Yes.

PROSECUTION COUNSEL: I'm very grateful, thank you.

THE JUDGE: I have to meet the Chairman of the bar here at about 12 o'clock, I think.

PROSECUTION COUNSEL: I won't need that long, I suspect…"

11. At 11.52 the case was called back into court and the Defendant was re-arraigned. He pleaded guilty to possession of a controlled drug. The Crown offered no evidence on the count of possession with intent to supply. After a two minute hearing, the case was adjourned until 12 July for sentencing to take place, with the benefit of pre-sentence reports. No jury had been selected or sworn.

Submissions

12. Mr Soni's attendance note records HHJ Morris as giving a ruling to the effect that the Prosecution was entitled to widen the scope of the indictment. In further notes provided for the purposes of this appeal, Mr Soni says that the transcript quoted above does not adequately reflect what were in fact extensive aspects of trial management and preparation, incorporating necessary discussions with the Prosecution and the Defendant and a ruling "of the utmost significance" from HHJ Morris. Counsel also says that the clerk of the court indicated that the court log would be marked to indicate that a trial had started.

Conclusions

13. I have been referred to a number of Costs Judge decisions on the question of whether a trial has started, all of which are fact-specific and none of which are binding. I do not think it necessary, for present purposes, to refer to them in detail.
14. To restate some observations I have made before in appeals of this nature, it seems tolerably clear that in Lord Chancellor v. Henery Spencer J, in using the words "the court is dealing with substantial matters of case management", had it in mind that (at a stage where at least a jury had been selected) the trial Judge would be called upon to make some sort of ruling or rulings. In R v. Wood (SCCO 178/15) Costs Judge Simons found that this was a prerequisite to the finding contended for in this case by the Appellant.
15. In contrast, Costs Judge Whalan, in R v Cox [2023] EWHC 270 (SCCO) and R v Pipe [2024] EWHC 106 (SCCO) and Costs Judge Rowley in R v Sallah (SCCO 281/18, 18 March 2019) took the view that the resolution of substantial matters of case management by the parties at the direction of or with the approval of the trial Judge, could justify the conclusion that the trial had begun in a meaningful sense.
16. I cannot see that this case falls into either category. I am unable to accept Mr Soni's characterisation of the observations of HHJ Morris as a ruling either on the amendment of the indictment or on the nature of the messaging evidence. Mr Soni made it expressly clear that HHJ Morris was not being asked to make a ruling, and HHJ Morris give an indication of how the evidential issue would "probably" be resolved. He evidently took the view that it was a routine matter, of no great substance or difficulty.
17. The necessary implication of the way in which matters were put both by and to HHJ Morris was that it would not be necessary for him to make any ruling unless there was a trial. That is consistent with Mr Soni's observation to the effect that whether there would be a trial was, at that stage, a "big if".
18. In short, I cannot reconcile the transcript of the day's proceedings with Mr Soni's current interpretation of events.
19. It seems to me that the work undertaken by the parties on 29 May 2024 was a mixture of normal pre-trial preparation and the sort of negotiation that typifies a cracked trial. As Ms Weisman for the Lord Chancellor points out, if pre-trial preparation alone were to constitute the beginning of trial, the notion of a "cracked trial" would not exist at all.
20. Counsel's reference to what was allegedly said by the court clerk does not assist. I have not seen a copy of the court log, but the court log is not determinative in any case. The only indication that would have been helpful to the Appellant would have to have come from HHJ Morris himself. From what I have seen, I think that HHJ Morris would have been surprised had he been asked to indicate that a trial had started when the import of his discussions with counsel had been that a trial could be avoided, as indeed it was.
21. In summary it cannot, on the evidence I have seen, be right to conclude in this case that substantial matters of case management were undertaken 29 May 2024, either by the court or by the parties. My conclusion is that the Appellant has not demonstrated that a trial had begun in a meaningful sense. The appeal must be dismissed.