Claim No: 2012-1162

Neutral Citation Number: [2013] EWHC 764 (QB)

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Royal Courts of Justice
Strand, 
London WC2A 2LL 

Date: Wednesday, 20 February 2013

BEFORE:

MR JUSTICE LEGGATT

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BETWEEN:

LORD CHANCELLOR
Appellant 

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WOODHALL

Respondent
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MR D BEDENHAM (instructed by Treasury Solicitor) appeared on behalf of the Appellant.
The Respondent appeared in person.

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Judgment 
MR JUSTICE LEGGATT: 

1.	The issue on this appeal is whether the respondent barrister, Mr Woodhall, is entitled to be paid a fee for a guilty plea, or a fee for a cracked trial, for his work as counsel for one of the defendants, Mr Atkinson, in a multi-handed drugs conspiracy case. 
2.	The basic facts are as follows. On 3 November 2010 Mr Atkinson was sent pursuant to section 51 of the Crime and Disorder Act 1998 to the Crown Court at Liverpool, together with his co-defendants. On 8 November 2010, at a preliminary hearing, a “provisional” trial date of 1 March 2011 was set, and the plea and case management hearing was fixed for 17 January 2011.  The 17 January 2011 hearing was adjourned administratively, and the matter next came before the court on 24 January 2011. Mr Atkinson, along with the first defendant, had filed submissions in support of applications to dismiss the case against them. It seems that by the time of the hearing on 24 January 2011 the application by the first defendant had already been heard and, as a result of the outcome of on that application, the Crown decided not to proceed with the case against Mr Atkinson. The Crown indicated that decision, according to the case log, when the case against Mr Atkinson was called on at 10.56 on 24 January 2011.
3.	Mr Woodhall submitted a claim for a graduated fee on the basis of a cracked trial.  The Legal Services Commission decided that Mr Woodhall was entitled to be paid a fee only for a guilty plea. He requested a re-determination by the Legal Services Commission, but the same decision was maintained. Mr Woodhall then appealed to the costs judge, who allowed his appeal. That decision of Costs Judge Campbell was dated 12 September 2012 and the reasons for it were set out in a written judgment provided on 13 October 2011.  From that decision of Costs Judge Campbell the Lord Chancellor now appeals to the High Court under article 31 of the Criminal Defence Service (Funding) Order 2007. 
4.	Mr Woodhall’s claim that he is entitled to be paid a fee for a cracked trial is based on the definition of a cracked trial in paragraph 1 of Schedule 1 of the Funding Order. Under that definition, the term “cracked trial” refers to two situations. The first (which I can summarise because it is not relied on here) is a situation where a plea and case management hearing takes place, but the case is not disposed of either by the defendant pleading guilty at that hearing to all counts on the indictment or by the prosecution indicating an intention not to proceed, and yet the case subsequently ends without a trial. The second situation, which is the part of the definition on which Mr Woodhall relies, is where “(b) the case is listed for trial without a plea and case management hearing taking place”. Mr Woodhall’s argument is simply that Mr Atkinson’s case was listed for trial on 8 November 2010, that no plea and case management hearing took place, and that in these circumstances he is entitled pursuant to the definition of a cracked trial to be paid a fee calculated on that basis. 
5.	The Legal Services Commission did not accept that argument, and before the costs judge the Lord Chancellor submitted that the Legal Services Commission was right not to do so for two reasons.  First, it was said that, in circumstances where only a “provisional trial date” was set on 8 November 2010, the case was never listed for trial. Costs Judge Campbell found that, despite the description of the trial date in the case log as “provisional”, the reality was that the case was fixed for trial at the hearing on 8 November 2010, and thereafter everyone was working on the basis that the trial would begin on 1 March 2011, with this being a firm fixture. In those circumstances, he found that the case was “listed for trial” within the meaning of the definition of a cracked trial in paragraph 1 of Schedule 1 of the Funding Order. There is no appeal by the Lord Chancellor against that factual determination. 
6.	The second ground relied on by the Legal Services Commission, and by the Lord Chancellor in argument before the costs judge, was that the hearing on 24 January 2011, at which the prosecution decided not to proceed against Mr Atkinson, was a plea and case management hearing so that the case was not one which was listed for trial without a plea and case management hearing taking place. Costs Judge Campbell decided this point too in favour of Mr Woodhall. He found that there was no plea and case management hearing in Mr Atkinson’s case, and that the hearing which took place on 24 January 2011 was not a plea and case management hearing, but rather the hearing of an application to dismiss.  He reasoned that, while it was right that on 8 November 2010 a date was fixed for a plea and case management hearing, which date became 24 January 2011, as the case unfolded it became clear that this would not necessarily be a plea and case management hearing because counsel for certain defendants, including Mr Atkinson, had given notice to the court and to the Crown that, instead, they proposed to apply for the case to be dismissed. Costs Judge Campbell concluded that, in the event, and in circumstances where the case against Mr Atkinson was discontinued even before any application to dismiss was made, there never was a plea and case management hearing, and in those circumstances, part (b) of the definition of a cracked trial applies.
7.	It is against that second determination of the costs judge that the present appeal is brought by the Lord Chancellor. Mr Bedenham, who has represented the Lord Chancellor on this appeal, has relied, in particular, on paragraph 2(9) of Schedule 1 to the Funding Order, which he accepts was not drawn to the attention of the costs judge. That provides: 
“For the purposes of this schedule, a case on indictment which discontinues at or before the plea and case management hearing otherwise than
(a) by reason of a plea of guilty being entered, or
(b) in accordance with paragraph 2(8)
must be treated as a guilty plea.”
8.	It is common ground that no plea of guilty ever was entered in this case and that the case against Mr Atkinson was not discontinued in accordance with paragraph 2(8) of the Funding Order. Mr Bedenham submits that, in these circumstances, paragraph 2(9) squarely applies. His primary submission is that the hearing on 24 January 2011 was a plea and case management hearing and the case against Mr Atkinson was discontinued at that hearing. Alternatively, he submits that, if that is wrong, then discontinuance occurred before the plea and case management hearing, which was fixed to take place on that day and would have taken place had it not been for the discontinuance and if any application made on Mr Atkinson’s behalf to dismiss the case against him had failed. Mr Bedenham further submits that there is no conflict between paragraph 2(9) and the wording of the definition of a “cracked trial”, and that the two are consistent with each other. Alternatively, he says that the express terms of paragraph 2(9) must prevail if there is considered to be any such conflict. 
9.	Mr Woodhall, who has, if I may say so, presented his own case in a measured and most helpful way, accepts that, as a matter of fact, a plea and case management hearing would have taken place on 24 January if the case against Mr Atkinson had not been discontinued unexpectedly, as happened, and if the application which Mr Woodhall proposed to make at the outset of the hearing on that day for the case to be dismissed had not been successful. But, he says, the costs judge was right to find that there never was a plea and case management hearing, because the stage of such a hearing was never reached. In response to the argument that paragraph 2(9) applies, because, even on those facts, the case against Mr Atkinson was discontinued before the plea and case management hearing, he submits that paragraph 2(9) is inconsistent with the definition of a cracked trial, which is clear in its effect. Mr Woodhall submits that in circumstances where, as here, the case has been listed and no plea and case management hearing ever takes place the definition clearly applies, and that, there being a conflict between them, the express words of the definition must prevail over paragraph 2(9).
10.	I remind myself that this appeal is limited to a review of the decision of the costs judge and is not a rehearing. Accordingly, this court should interfere only if satisfied that the decision of the costs judge was wrong. Nevertheless, I consider that the costs judge was wrong in this case to hold that the hearing on 24 January 2011 was not a plea and case management hearing. 
11.	It is true that, in the events which happened, Mr Atkinson was never arraigned at the hearing and no directions were given for the management of the case, but it is clear that the hearing was designated as a plea and case management hearing and had been fixed on that basis, and that Mr Atkinson would have been arraigned and directions would have been given at the hearing had the prosecution not pre-empted that by discontinuing the case against him at the start of the hearing. 
12.	In those circumstances, I consider that, looking at the substance of the hearing, as the costs judge rightly did, the only view that can reasonably be taken is that the nature of this hearing was one of plea and case management, and that it was accordingly at such a hearing that the discontinuance took place. But, if I am wrong about that and the view is taken that the hearing on 24 January 2011 was not a plea and case management hearing, it is in my view an inescapable conclusion that the case on that analysis was discontinued before the plea and case management hearing. This is because, as I have mentioned and as Mr Woodall very fairly accepts, there would have been, on any view, a plea and case management hearing on that day had there not been discontinuance and had his application to dismiss been unsuccessful.
13.	It therefore seems to me that the circumstances of this case, on any view, fall within paragraph 2(9) of the Funding Order. The costs judge cannot be criticised for not reaching that conclusion since, as I have mentioned already, his attention was not drawn to paragraph 2(9) and argument at the hearing before him was not addressed to that issue.
14.	The remaining question is how paragraph 2(9) stands in relation to the definition of a cracked trial as a case in which “the case is listed for trial without a plea and case management hearing taking place”. It is, of course, a principle of statutory interpretation that the instrument must be construed as a whole and, if possible, in a way which renders consistent its various provisions. If the definition of a cracked trial which I have quoted had stood alone, it seems to me that it would have been ambiguous. The wording could be taken to refer to a situation in which a case is listed for trial without a plea and case management hearing yet having taken place or, alternatively, it could refer to a situation where a case is listed for trial without a requirement to have a plea and case management hearing, such a hearing being dispensed with.  
15.	If I were simply forced to choose between those alternative interpretations, I would consider the second to be the more reasonable interpretation, because it seems to me that the overall scheme of the Regulations is to allow only a fee for a guilty plea in any circumstance where the case is terminated without having got past the plea and case management hearing. That being so, provision has to be made for the situation in which there never is a plea and case management hearing and the case is listed for trial without one. The second of the two alternative interpretations which I have identified fits with that. To interpret the definition more broadly as applying in any situation where a plea and case management hearing has not taken place, even in circumstances where it is intended that there should be one, would create anomalies of the kind to which Mr Bedenham drew attention. It would, for example, create a situation in which, if a guilty plea was entered after the case had been listed for trial but before a plea and case management hearing which had been fixed had taken place, the case would be treated as a cracked trial, and yet, if the defendant pleaded guilty at the subsequent plea and case management hearing, it would be treated as a guilty plea. Mr Woodhall says that such fluctuations are part of the nature of the scheme and that logic does not really enter into it. But if required to choose between two competing interpretations, it seems to me that I should adopt the one which gives the best overall sense to the Regulations and, in my view, the second interpretation which I have identified does so.
16.	It is not a question, however, of simply having to choose between those two alternative interpretations in this case, because I consider that any ambiguity that there would otherwise have been is removed by paragraph 2(9), which may indeed have been introduced precisely in order to remove such ambiguity. I see no inconsistency between the words of the definition of a cracked trial and paragraph 2(9). In my view, the words of paragraph 2(9) make it clear beyond doubt that the effect of the Regulations is that, where the case is listed for trial before there has been a plea and case management hearing, which is nevertheless fixed, the case must be treated as a guilty plea and not as a cracked trial if discontinuance occurs at or before such a plea and case management hearing. That is precisely what happened in the present case. 
17.	I therefore conclude that the situation here is that the case against Mr Atkinson was discontinued, if not at, then in any event before, the plea and case management hearing. It therefore falls within paragraph 2(9) of Schedule 1 of the Funding Order. It follows that this matter must be treated as a guilty plea and the fee payable is that for a guilty plea and not for a cracked trial.
18.	I am sorry to have reached that conclusion, as my understanding is that Mr Woodhall had to undertake a substantial amount of work in preparing for trial in this case, for which the fee for a guilty plea may be sparse remuneration. However, as Mr Woodhall pointed out in his submissions, the principle on which the scheme is based is not one of providing fair remuneration by reference to the amount of work done, but is a rule-based system. In words that he quoted from the case of R v Grigoropolou [2012] 5 Costs LR 982, and as the judge observed in that case, “there is no equity in a scheme which would permit the court to put right perceived injustices, because its modus operandi is one of roundabouts and swings.” Applying the scheme set out in the Funding Order, the result is that this appeal must be allowed, and this particular case is, unfortunately for Mr Woodhall, an example of a swing rather than a roundabout.
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