The first change relates to cases when the defendant elected trial and solicitors had been restricted to the fixed fee, even though the Crown did not proceed at all, and the defendant is acquitted on the order of a judge. In these cases, provided the case goes beyond the plea and case management hearing, a cracked trial fee will be paid

The second change will effect significant improvements to cashflow. A litigator may make a claim for an interim payment of profit costs at one or both of two stages in proceedings.

The first stage is where a ‘not guilty’ plea is entered following a plea and case management hearing (unless it was on a defence election), or alternatively, where a retrial is ordered and representation has been transferred to a new litigator. The interim payment at this stage of proceedings is set at 75% of the cracked trial rate plus any uplifts. Where a retrial is ordered and representation transferred to a new litigator, the payment is set at 50%. The determination of the cracked trial rate will depend on the number of pages of prosecution evidence (PPE) served on the court and the classification of the offence into which the case falls.

The second stage is where a trial has commenced that is expected to last for 10 or more days. Either the basic or the final fee calculated in accordance with the schedule is payable. The trial is presumed to last one day

The key elements of a claim

A series of decisions from cost judges have clarified issues that are central to the recovery of the correct value of graduated fees.

Solicitors should be willing to use their rights of appeal to the Senior Courts Cost Office on the form which now appears as schedule 3 in the Practice Direction (Costs in Criminal Cases) [2013] EWCA Crim 1632. There are four critical areas.

1. The number of cases

There are as many cases as there are indictments and only a formal joinder order prevents more than one claim, albeit with uplifts (R v Hussain [2011] 4 Costs LR 689 and R v Bowen [2011] 4 Costs LR 693). The fact that cases are listed together for directions and adjourned together or listed together for sentence or sentenced together is not enough to make them a single case (see R v Forrester [2012] 4 Costs LR 811 and R v Ototo SCCO 8/11). Where an indictment was quashed because a husband cannot conspire with his wife, and a new indictment is preferred containing a specific allegation, that becomes a second case. It is not purely a tidying up exercise (R v Sharif SCCO 168/13 ).

2. The classification

The costs judges will look behind the formal terms of an indictment to see the true nature of the allegation made against a particular defendant. Thus in R v Nutting [2013] Costs LR 1037 the matter was treated as an aggravated burglary, although a mere burglary was asserted by the indictment.  This moved the case into classification H. However, where a case is in that classification the authorities must consider whether there is a more appropriate category for the case. In a case of aggravated burglary, the more appropriate category was category B.  In Environment Agency v Flannagan Tones and Abraham SCCO 215/13 the case would normally have fallen in class H. However, because the work done by the solicitors was equivalent to that they would have undertaken in a fraud trial and the Crown alleged dishonesty, the more appropriate category was category K.

3. The categorisation

Where a trial is abandoned for any reason and proceeds to a retrial, solicitors do not have to deliver their bill of costs until the end of the retrial (R v Hart Badger [2013] 1 Costs LR 181). A decision on how to bill the matter should be postponed until the end of the retrial. On some occasions, it will be better to claim a trial and a retrial, particularly if substantial prosecution papers of evidence have been served between the two, but on others it will be advantageous to add the length of the two trials together and treat them as a single trial. The decision in R v Cato SCCO [2012] and also in R v Seivwright [2011] 2 Costs LR 327 had initially caused difficulty.

These indicated that, in costs law, a retrial could only exist if the jury had retired to consider its verdict and been unable to reach a verdict, so that a retrial was ordered or if the Court of Appeal ordered a retrial. This judgment was applied even though the gap between procedural and retrial was substantial, including in R v Howitt SCCO 386/12, a gap of five months. However, this very tight interpretation of the law has been weakened. In R v Nettleton SCCO 58/13 it was indicated that each case will be facts specific and the temporal and procedural matrix of the individual case will have to be considered. The appointment of a new judge to hear the second trial meant there was a retrial in costs law. More significantly, in R v Geeling SCCO 40/14 it was acknowledged that the temporal matrix will not exist where a gap of over one year exists between trial and retrial.

The procedural matrix was also not met in that case because the first trial, which had considered an abuse of process argument, had not involved the empanelment of a jury at any point. The trial involving a jury was therefore a retrial.

4. The page count

The law on the circumstances in which digital evidence may be counted towards page count is now clearly established. In R v Napper SCCO 160/14 a fully reasoned argument was delivered. The basic law is established by the decision in R v Jalibaghadlehazi SCCO 354/13 which involved downloads from mobile telephones that were crucial evidence in the case and were referred to in the prosecution opening.

The solicitors had printed it out to work on the material. The material required the same degree of consideration as evidence served in the case and was an important part of the prosecution allegations. The statutory requirement for exhibits served electronically to be included in PPE is that it would be appropriate to include them, taking into account the nature of the document and any other relevant circumstances. Relevant circumstances are not limited to whether the material would previously have been printed out or whether there was any intention that it should be so printed.  Each case will be decided on its own merits but digital material will normally count as page count when the evidence is vital to the prosecution case and substantially relied upon.

However, later decisions may limit the use of digital evidence towards page count. In R v Gillett SCCO 185/14 and R v Murray SCCO 233/14, the costs judge made clear that it would normally be inappropriate to allow both litigator and advocate to claim digital material towards page count, and emphasised that proof of the time spent reviewing the electronic material should be produced, so that it can indeed be seen as crucial to the preparation of the defence case. The importance of time recording is therefore emphasised, and in large cases case plans should be prepared with solicitors normally undertaking the work on schedules backed by digital exhibits.

Solicitors using telephone data to show a lack of contact between their client and other defendants (on the ‘drug phone’ in this case) may be paid by PPE for the work involved (R v Dodds SCCO 189/14).

In Roberts SCCO 112/14, the judge indicated that the nature of all documents served electronically must be considered, as only relevant material may be counted towards page count. In this case, the index revealed that many of the papers had no relevance to the allegation made. It is suggested that where there is no index so that the documents have to be examined, the time identifying the irrelevant material should be claimed as special preparation.

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