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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 >> Hussain, R, v [2025] EWHC 646 (SCCO) (17 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2025/646.html Cite as: [2025] EWHC 646 (SCCO)

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IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE

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

		Thomas More Building Royal Courts of Justice London, WC2A 2LL
		17th March 2025

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

The appropriate additional payment, to which should be added the £100 paid on appeal, should accordingly be made to the Appellants. 

Costs Judge Whalan:

Introduction
1. Belgravia 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 4^th October 2023 should be paid as a trial, as claimed or as a cracked trial, as allowed.
Background
2. The Appellants represented Mr Kabir Hussain ('the Defendant'), who was charged at Sheffield Crown Court on an indictment alleging blackmail, kidnapping, false imprisonment and putting a person in fear of violence by harassment.
3. The Defendant pleaded not guilty at a Pre-Trial Preparation Hearing on 3^rd April 2023. The trial was listed on 29^th August 2023, but was subsequently adjourned until 4^th October 2023.
4. The papers disclose a detailed Court Log for 4^th October 2023 and I summarise the chronology in this judgment. The case was called on at 11:31 and for approximately 13 minutes until 11:44 the parties submitted various short representations to the judge vis-à-vis a possible plea and sentencing. The judge ultimately adjourned the case to allow the prosecution and the defence to discuss these matters. The case resumed at 12:21 and at 12:27 the Defendant's advocate indicated that he 'would wish to proceed with the trial'. Between 12:41 and 13:05 the prosecution and the defence then made submissions to the court in respect of the evidence, specifically 'CCTV, medical records and mobile phone downloads', along with a defence submission for dismissal on the grounds of abuse of process. Between 13:05 and 13:15 the judge delivered a short ruling on these matters. The judge dismissed the abuse of process argument and gave directions pertaining to the disclosure of various categories of evidence, with inspection to take place during the trial. The case was adjourned until the afternoon. The case resumed at 14:20, whereupon the parties informed the court that a plea agreement had been reached, the Defendant was arraigned on an alternative indictment, pleading guilty to one count. He was sentenced later that afternoon.
The Regulations
5. The Representation Order was dated 4^th March 2023 and the applicable regulations are the Criminal Legal Aid (Remuneration) Regulations 2013 ('the 2013 Regulations') as amended.
6. 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
7. I was referred by both the Appellant 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.

8. I am referred additionally to numerous previous decisions of the SCCO on this issue, including R v. Barnes [2022] EWHC 1539 (SCCO), R v. Cox [2023] EWHC 270 (SCCO) and R v. Lamonby [2024] EWHC 22 (SCCO). I have considered the other cases cited by the parties and will only refer specifically to the most recent judgments.
The submissions
9. The Respondent's case is set out in Written Reasons dated 1^st July 2024. The Appellants' case is set out in Grounds of Appeal. The Appellants requested that this appeal be determined on the papers without an oral hearing. On 27^th August 2024, I directed that the parties could, if so advised, file additional submissions, which should be uploaded to the CE file by 11^th October 2024. Neither party has filed additional written submissions; indeed, on 27^th September 2024, the Respondent indicated (by e-mail) that they did not propose to make any additional submissions, but intended to rely on the Determining Officer's written reasons.
My analysis and conclusions
10. The Respondent, in summary, notes that no jury was selected or sworn and the prosecution case was not opened, while acknowledging that these factors are not determinative. Nor was it the case, according to the Determining Officer, was there 'a trial in any meaningful sense, insofar 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 on paragraph 96(6) of the guidance of Henery (ibid), submitting that the relatively short events of 4^th October 2023 nonetheless constituted substantial matters of case management, with the result that the trial had begun in a meaningful sense. This argument is distilled as follows:

This matter required judicial determination by the judge in respect of our application to stay the indictment on the grounds of abuse of process which featured substantial legal arguments relating to s.78 and application to exclude evidence on the grounds of material non-disclosure and fairness of the proceedings. This is obviously a contested application, and submissions were made by both parties, determinations were made by the judge (abuse of process ruled out) which then substantially affected the outcome of the proceedings where three counts of blackmail were dropped, and a lesser charge was offered in the alternative which then in turn resulted in a change of plea by the Defendant.

13. Each case turns necessarily on its particular facts and it is sometimes difficult to distinguish between the features of a trial and a cracked trial. It is clear, in my view, that events prior to 12:21 on 4^th October 2023 did not amount to substantial matters of case management. Up until that point, the Defendant was intending to proceed with the trial. Between 12:41 and 13:15, however, it was apparent that the judge heard and then determined a contested application for abuse of process. This determination, moreover, was apparently the determinative factor in reaching the plea agreement confirmed after the lunch adjournment. In Cox (ibid) it was noted that a trial can effectively begin during the course of the comparatively short court hearing. It seems to me that, on the facts of this case, the court did engage in substantial matters of case management, insofar as it heard and then determined a contentious and determinative application for abuse of process. Accordingly, this appeal is allowed.
Costs
14. The Appellants have been the successful party and they are entitled to the return of the £100 paid in lodging the appeal. There was no oral hearing, and it is not appropriate, in my conclusion, to make an additional award of costs.