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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 >> J Hughes & Co.Solicitors v The Lord Chancellor [2025] EWHC 1141 (SCCO) (12 May 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Costs/2025/1141.html
Cite as: [2025] EWHC 1141 (SCCO)

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Neutral Citation Number: [2025] EWHC 1141 (SCCO)
Case No: 06PP0090622, SCCO Reference: SC-2024-CRI-000155

IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE

IN THE MATTER OF: R v Tyrrell
Judgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013/Regulation 10 of the Costs in Criminal Cases (General) Regulations 1986

Thomas More Building
Royal Courts of Justice
London, WC2A 2LL
12 May 2025

B e f o r e :

COSTS JUDGE Brown
____________________

J. HUGHES & CO.SOLICITORS Appellant
-and-
THE LORD CHANCELLOR Respondent

____________________

HTML VERSION OF REASONS FOR DECISION
____________________

Crown Copyright ©

    The appeal has been unsuccessful for the reasons set out below. There shall be no order as to the costs of the appeal.

    COSTS JUDGE BROWN:

  1. The appellant litigators represented the Defendant Benjamin Tyrell in criminal proceedings in the Crown Court at Manchester Minshull with the benefit of a Representation Order dated 26th July 2023. He was charged with three counts of penetrative sexual activity with a child as one of ten defendants in Operation Lytton involving historic allegations going back to 2004/2005 in the Rochdale area.
  2. The Appellant argues that the Determining Officer was wrong to determine that the fee payable under the Graduated Fee Scheme (pursuant to the Criminal Legal Aid (Renumeration) Regulations 2013) was on the basis of guilty plea rather than as a 'cracked trial'. Written reasons for the Determining Officer's decision were given on 4 December 2024.
  3. At the hearing on 6 May 2025 the Appellant was represented by counsel, Mr Colin Wells. The Respondent, effectively the Legal Aid Agency ('LAA'), were unrepresented at the hearing and relied on the reasons of the Determining Officer.
  4.   Paragraph 1 of Schedule 2 to the 2013 Regulations as amended, defines 'cracked trials' and 'guilty pleas 'as follows:
  5. Interpretation
       …
    "cracked trial" means a case on indictment in which —
    (a)  the assisted person enters a plea of not guilty to one or more counts at the first hearing at which he or she enters a plea 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 first hearing at which he or she entered a plea; or
    (bb)  in respect of one or more counts which did not proceed, the prosecution did not, before or at the first hearing at which the assisted person entered a plea, declare an intention of not proceeding with them; or
    (b)  the case is listed for trial without a hearing at which the assisted person enters a plea;
    "guilty plea" means a case on indictment which—
    (a)  is disposed of without a trial because the assisted person pleaded guilty to one or more counts;
    and
    (b)  is not a cracked trial;
  6. Further, reference is made in the decision of the Determining Officer to the following provisions in Schedule 2,
  7. 2 Application
    (3) Where, at any time after proceedings are sent for trial to the Crown Court they are—
    (a) discontinued by a notice served under section 23A of the Prosecution of
    Offences Act 1985
    (discontinuance of proceedings after accused has been sent for trial), or
    (b) dismissed pursuant to paragraph 2 of Schedule 3 to the Crime and Disorder Act
    1998 (applications for dismissal),
    The provisions of paragraphs 21 and 22 apply.
    …
    (5) For the purposes of this Schedule, a case on indictment which discontinues at or before the first hearing at which the assisted person enters a plea otherwise than—
    (a) by reason of a plea of guilty being entered; or
    (b) in accordance with sub-paragraph (3),
    must be treated as a guilty plea.

    21 Discontinuance or dismissal of proceedings
    (1) This paragraph applies to proceedings which are sent for trial to the Crown Court.
    …
    (6) Where, at or before the first hearing at which the assisted person enters a plea -
    (a) the prosecution offers no evidence and the assisted person is discharged; or
    (b) the case is remitted to the magistrates' court in accordance with paragraph
    10(3)(a), 13(2) or 15(3)(a) of Schedule 3 to the Crime and Disorder Act 1998,
    the litigator must be paid a fee calculated in accordance with paragraph 6 or where

    appropriate paragraph 8, as appropriate for representing an assisted person in a guilty plea.

  8. On September 2023 the Client appeared at the court at Minshull Street by video link. It appears that although some indication was given that the Defendant would be pleading not guilty, no indictment hds been prepared. A trial date was set for 8 September 2025. It appears that the Appellant had some real concern about the Defendant's mental health and his fitness to plead. Steps were, I am told, subsequently taken to obtain a report from a psychiatrist dealing with this issue.
  9. The Prosecution had been ordered to serve the indictment by 5th October 2023. Various stages of case management were ordered to include – as I understand it- some disclosure etc. A special measures application was granted and a case management hearing was also fixed. In a report of May 2024 a psychiatrist, Dr Best, set out her view that notwithstanding significant mental health issues the Claimant was fit to plead. A further case management hearing took place on 3 June 2024.
  10. It appears however that the case was reviewed by the Prosecution following which it was indicated that they would not proceed against the Defendant. The Defendant was then arraigned on 4 October 2024, pleaded not guilty and the Prosecution thereafter offered no evidence.
  11. Noting that the case had been dismissed without a trial, the Determining Officer held that the fee which had correctly paid on the bass of a guilty plea since, on her assessment of the case, before the first hearing at which the assisted person entered pleas the prosecution offered no evidence ( and para. 2 (5) and 21(6) applied). Even if these regulations did not apply, limb (b) of the definition of 'cracked trial " could not be said to apply as there had been a hearing at which a plea was entered (the hearing on 4 October 2023)
  12. The Appellant argued at the hearing, in effect, that the hearing on 4 October 2024 could not be said to the first hearing at which the Appellant
  13. entered a plea for the purposes of the definition a 'cracked trial' under limb (a) of the definition see ((ii) (bb) above) and the other regulations referred to by the Determining Officer. It was sufficient, taking a purposive approach to the relevant provisions, that there had been intention to enter a not guilty plea and an indication had been communicated to the prosecution by email at an earlier hearing.

  14. I have seen shown an email dated 9 July 2023 which states that the Defendant " will be indicating a not guilty plea" and asking that the Defendant's attendance be excused or that he attend by CVP. The email also notes that no indictment had been uploaded to the Digital Case System.
  15. Although Mr Wells accepted that no plea has been formally entered at this stage the early indications given (I understand that there may have been other oral indications given) that the Defendant intended to plead not guilty were sufficient to amount to the entry of a not guilty plea for the purpose of the rules or, alternatively, the rule should be read so as to permit the indication given to count as the entry of a not guilty plea. The delay in verbally entering the not guilty plea was, it was said, down to the Defendant's severe mental health issues (paranoid schizophrenic) and the Court process. It is suggested that the case was at least substantially prepared for trial by the Appellant (work being done on the need for an intermediary). Reliance was placed on a submission made by Ms, Weisman (advocate for the LAA) in another case to the effect that there is a distinction between those cases in which the prosecution and/or defence clearly and procedurally demonstrate an intention to proceed to trial, but later change course (a cracked trial); and those cases in which a guilty plea may be entered at a relatively late stage, because disclosure is limited, instructions are unclear, and options are left open (a guilty plea): this case was said to fall within the former bracket of cases.
  16. Reliance was also placed on the decision of Costs Judge Rowley (now the Senior Costs Judge)in R v Williams [2020] SC-2019-CLI-000118. In that case he held that a fee was payable on the basis of a cracked trial and not a guilty plea, notwithstanding the fact that the defendant did not plead not guilty at the PTPH because she was not formally arraigned. The judge stated, at [10],
  17. "I am in no doubt that this case qualifies for a cracked trial fee. The judge's note expressly describes the hearing as a PTPH and it is clear that a number of the co-defendants did formally plead at that hearing. Williams indicated what her plea would be, but in the absence of her counsel, on what everyone described as a busy morning, she was not formally arraigned. It seems to me to be taken an overly literal interpretation of the regulations to consider that hearing to be anything other than one where the defendant's position in respect of the courts was made clear to the judge."

    (see too perhaps Rose v Lord Chancellor [2024] EWHC 1080 (SCCO) to similar effect).

  18. An indication that a certain plea is likely to be given is not in my judgment the entry of a plea. It appears that there were a number of reasons why pleas were not entered at the first hearing in the Crown Court, one of which was that the indictment had not been served. Further, in my judgment, there is no ambiguity which would permit the relevant provisions to be read such that a mere intention to plead not guilty is sufficient to satisfy limb (a) of the definition even one which has been communicated to the prosecution (similarly, the provisions relied upon by the Determining Officer (if applicable) which limited the fee to one payable on the basis of guilty plea).
  19. The literal meaning of the relevant provisions is clear. It was not, I think, suggested that the literal mearing of the provisions was absurd or unworkable, nor was it suggested that the rules were defectively drafted. Indeed it seems to me that provisions are clear and identify a clearly recognisable procedural step in criminal proceedings, the entry of a plea, as the threshold for payment of a 'cracked trial' fee. To my mind there are no principles of statutory interpretation which would permit me to read the provisions so widely. It seems to be clear on the provisions that mere communication of an intention to plead not guilty is not enough; an entry of a plea is necessary.
  20. I might add that it strikes me that there would be quite a number of problems with the Appellant's interpretation if it were correct. The scheme is a block rated scheme which requires the Determining Officer to determine whether certain events have occurred; a provision which might require an Officer to enquire into whether an intention to plead not guilty had been communicated might give rise to evidential complexities out of keeping with way the scheme operated. Further, I have a concern that if a defendant may not be fit to plead (as here), such an individual may not able to give proper instructions; indeed, there might be a temptation for an advocate to give an indication without the ability to take proper instructions.
  21. I recognise that in many cases where there is an issue as to fitness to plead, there might also be an issue as to whether the defendant had the necessary mens rea; and thus the consideration as to whether the Defendant is fit to plead might overlap with a consideration of the issue of guilt. Evidence obtained when considering fitness to plead might serve a dual purpose as it might well also go the question as to whether in this case the Defendant had the necessary intention or recklessness- or here with the possible need for an intermediary. But that will be a feature of many cases of this kind and even accepting that there may be significant work on the latter issue or in progressing the case, this is not to my mind a sufficient basis to read the provision in the way suggested. It is a consequence of the scheme which block rates the work by reference to certain defined criteria (and is perhaps part of what is often referred to as to the 'swings and roundabouts' of the scheme). It cannot, I think, alter the mearing of the words in the relevant provision.
  22. It is perhaps notable that the judge in Williams determined limb (b) also applied and would have justified his conclusion, so that his determination on limb (a) was not determinative( I note that in Rowe the judge appears to have proceeded on the basis of what I understood to be an earlier version of the relevant provisions before amendment).
  23. To my mind it is in any event clear on the plain meaning of the provisions that limb (a) cannot apply either.
  24. Mr Wells did not argue that limb (b) of the definition applied here. As Costs Judge Leonard notes R v Barzey [2022] EWHC 1775 (SCCO), limb (b) might be read in one of two ways: that there is no hearing at which the assisted person enters a plea, or that there is such a hearing, but the case is listed for trial before it takes place. If the latter were right the Appellant would succeed because it was not until after the case was listed for trial that a plea was entered. However, if the former reading is correct then the claim fails under this limb as there was a hearing at which the assisted person pleaded guilty, the Mention hearing. The Appellant did not challenge the approach of Judge Leonard that the former reading is the correct one. Indeed for reasons which I set out in Marks v Lord Chancellor (otherwise known as R v Gatherar [2023] EWHC 2928 (SCCO) (and which it is not necessary for me to elaborate) I think that Costs Judge Leonard is correct. There was a hearing at which the Defendant pleaded not guilty. Accordingly. limb (b) would not have assisted the Appellant.
  25. This appeal is, accordingly, dismissed.
  26. COSTS JUDGE BROWN

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