A firm has won in its appeal against a legal aid fee denial in a trial that did not proceed.
IMS Law Limited (Solicitors) was originally instructed under a representation order in a possession of a firearm offence A subsequent charge of conspiracy was laid after the firearms proceedings had begun.
Once the conspiracy indictment was ‘up and running’ the trial date for the possession indictment was vacated and eventually stayed.
Solicitors were paid their fee for the conspiracy indictment but argued that their client faced two cases and so were entitled to two fees. The Legal Aid Agency's determining officer said there had been only one case and ‘only the graduated fee for the conspiracy proceedings which reached a trial was payable’.
In R v Horsfall, a costs judge said the use of the digital case system had led to ‘numerous appeals’ on the ‘historically-rare’ question of stayed indictments as uploaded indictments which were not the final version appeared ‘at first blush’ to entitle litigators to multiple payments.
Costs Judge Rowley acknowledged that ‘a number of costs judge decisions have indicated that the mere existence of more than one indictment is not sufficient to justify more than one fee’. He described the possession indictment being subsumed into the conspiracy indictment as an ‘accurate description of the prosecution’s approach’.
He added: ‘If the joinder had occurred, then the solicitors would have to have accepted a single fee in accordance with the regulations. But this is not what actually happened and it is difficult to see that there are anything other than two freestanding indictments in this case.
‘Indeed, the possession indictment was the only indictment for the first few months and so any work done during that period would have been solely for that case. This is very different from the administrative amendments made to an indictment in some of the other cases.’
Finding in the firm’s favour, the judge said: ‘The “swings and roundabouts” nature of the graduated schemes is referred to in numerous costs judges’ decisions. Joinder of the two indictments (and therefore fees) in this case would have been a swing which the solicitors would have to bear.
‘Absent that joinder, it seems to me that the solicitors are entitled to enjoy the roundabout of two fees for the two indictments, notwithstanding the fortuitous manner in which they came about.’
The firm was awarded the appropriate fee as well as £750 costs and £100 paid on appeal.