A firm has succeeded in its appeal against the Legal Aid Agency’s decision to cut its fee for a cracked trial after a costs judge ruled the trial 'had begun in a meaningful sense'.

The firm, named as Hussain Solicitors, was acting for a defendant charged with possessing a prohibited weapon and conspiracy to supply controlled drugs. At the start of the trial, the prosecution said charges against some of the defendants had been resolved and asked for time to see if charges against the remaining defendants could be resolved too.

Jury selection began in the meantime but problems with the jury meant the entire panel was released. A fresh jury would be chosen the following day. The defendant then changed his plea in relation to two of the four counts he faced and the remaining charges were left to lie on the file.

The firm made a claim based on a two-day trial. The determining officer considered the definition of a cracked trial, when the defendant offers acceptable pleas on the trial date or the prosecution offers no evidence, had been established and made a payment accordingly.

However costs judge Rowley found the firm was ‘entitled to a recalculation of the graduated fee’ as well as the costs of the appeal. He said: ‘There were some matters of substantial case management which justify concluding that the trial had begun in a meaningful sense.’

An application of severance of the indictment would be ‘important’, the judge added, describing it as a ‘substantial matter of case management even though it does not appear that the application was made at the hearing before the defendant changed his plea’.

‘It also seems to me that the advocates’ submissions regarding the suitability of the first jury would undoubtedly be a matter of case management if it had occurred later in the trial. The judge called upon the advocates to make submissions in this case at the outset but it seems to me difficult to conclude that that was not a substantial matter of case management.’

The firm will be paid the ‘appropriate additional payment’. The judge also ordered £1,500 costs and the £100 paid on appeal to be paid to Hussain Solicitors.


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