A costs judge has rejected solicitors’ claims to be paid a cracked trial fee for indictments which were quashed after trial.

In Shabir & Anor, R, appellants Harris Solicitors and Eldwick Law challenged the decisions of determining officers not to pay the fees, arguing that their respective clients had pleaded not guilty to the counts in the relevant indictments and the prosecution had chosen not to proceed. As such, they said, the definition of a cracked trial had been satisfied.

The dispute arose after the Crown prosecutor asked the judge following trial to quash all indictments other than the one pursued. The judge said the verdicts of not guilty would lie on the file for all indictments not pursued.

The determining officer said the claim by Harris Solicitors was out of time and the claim from Eldwick Law failed on its merits, as there were not two separate indictments justifying two separate fees.

Costs Judge Rowley made clear that where an indictment is quashed in circumstances where the prosecution essentially has to start again, then two fees may be claimed. But that was a ‘relatively rare event’ and did not apply here, in a case where there had been previous failed indictments and attempts had been made to be more efficient by grouping them together.

‘Unless there has been a severing of the indictment so that the defendant has to face two separate trials, or there is something equally distinct about the indictments being faced by a defendant, then the process of amendment of the indictment up to and including the trial is only one case which the defendant is facing and entitles the defendant’s legal representative to one graduated fee,’ he said.

‘The court is regularly faced with appeals where the advocate or litigator is seeking two trial fees where the first trial has proved ineffective for some reason. The regulations clearly do not provide for this and a reduced fee is payable for one of the trials.’

He added that the determining officer had also been right to deem one of the claims as out of time as it was made more than three months after the August 2021 trial. Harris Solicitors had tried to show exceptional circumstances, citing examples where the court had taken into account difficulties caused by the pandemic, but this argument was rejected by the costs judge.

He said: ‘Exceptional circumstances... is always going to be a high bar and the solicitors did not come anywhere near it on this occasion.’

 

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