5.5Inchoate offences fall within the same class as the completed offence.4Remuneration Regulations 2013 Schs 1 and 2 para 3(1)(b).

5.6If a case involves allegations in more than one class, the lawyer may choose whichever is more profitable.5Remuneration Regulations 2013 Sch 1 para 27; Sch 2 para 24. This includes reliance placed upon an allegation contained in a draft indictment even though that charge was not put at the plea and trial preparation hearing (PTPH)6Lord Chancellor v McCarthy [2012] EWHC 2325 (QB). (previously a plea and case management hearing).

5.7Class A may be used if the case concludes with a restriction order under Mental Health Act 1983 s41.7Remuneration Regulations 2013 Schs 1 and 2 para 3(1)(g). If a defendant is unfit to plead or stand trial, the lawyer may, if they choose, select Class D.8Remuneration Regulations 2013 Schs 1 and 2 para 3(1)(f).

5.8A robbery (Class C) is an armed robbery (Class B) if either the defendant was armed with a firearm or an imitation, or the victim so believed, or the defendant was in possession of an offensive weapon: R v Stables.9R v Stables (X12), 1999. The analysis in R v Stables has been placed in guidance issued by the LAA (CCFG 2.3.7–2.3.14), which confirms that there will be an armed robbery where:

5.11Allegations of dishonesty may fall into one of three classes depending on the amount alleged to be involved. In undertaking this calculation, the value of alternative charges cannot be used more than once. The value of offences taken into consideration (TICs) may not be used.11R v Knight (X35). However, the values are otherwise aggregated.12Remuneration Regulations 2013 Sch 2 para 3(1)(d). The burden of proof as to the value is on the lawyer. If the full value does not appear on the face of the indictment, it is necessary to produce other evidence to satisfy this requirement, such as the prosecution case opening or summary; prosecution statements;13R v Nelson SCCO 417/09. or a letter from the prosecution or court. The burden of proof is on the defence to the civil standard and a common sense view should be taken of the values involved in the case.14R v Garness SCCO 132/13.

5.12All offences under section 170(1) (but not s170(2)) of the Customs and Excise Management Act 1979 can fall in to the dishonesty categories and thus a choice can be made between those classes and the -classes appropriate for drugs, whichever results in a higher payment.15Lord Chancellor v Ahmed [2014] 1 Costs LR 21.

5.13Sexual offences fall into Class D or Class J, depending on the specific offence charged.

5.14If a case involves offences which do not appear in the schedules, the claim is in Class H. Where there is dissatisfaction with the Class H classification, an application can be made to the appropriate officer to reclassify the offence to one that is more appropriate in all the circumstances of the particular case.16Remuneration Regulations 2013 Schs 1 and 2 para 3(2) and (3). This must imply -opportunities to argue that, although the offence does not appear in the table of offences, a different classification should apply. This is certainly true of offences created since the table was last reviewed. This group will include offences under Prison Act 1952 s40B (inserted by the Offender Management Act 2007) of taking drugs into a prison which should be classified as Class B.

5.15In R v Nutting17[2013] 6 Costs LR 1037 (SCCO). it was held that although aggravated burglary is not listed in any class, and thus initially falls in Class H, its classification should be reconsidered and the appropriate classification was in Class B as it involved serious violence (correcting the view expressed in CCFG 2.3.16 and 3.3.15). This remained the case even though the indictment referred to basic burglary if, on the facts, the allegation against an individual defendant involved allegations of aggravated burglary. Reclassification is not based purely on the offence alleged but on a detailed analysis of the basis on which the Crown brings its case. In Environment Agency v Flanagan18SCCO 215/13. the work undertaken was akin to that undertaken in a fraud trial and the Crown alleged dishonesty, even though that was not an ingredient of the offence charged.

5.16Trade mark offences have been classed as F, G or K if they could alternatively have been charged as offences of dishonesty. Bigamy (Offences against the Person Act 1861 s57) would appear to be better placed in Class C.

5.17Outside Class H the classification is rigid. Thus a conspiracy to commit an offence in a specific class (in this case B) is also in the same class even if it might have involved dishonesty otherwise placing it in Class K.19R v O’Donnell and Fawley [2012] 2 Costs LR 431.

5.18A hearing whether contested or otherwise relating to breach of bail, failure to surrender to bail or on the execution of a bench warrant is classified not as an offence at all but as a ‘standard appearance’.

5.19A claim for costs must include a copy of the indictment. The content of a representation order is not acceptable to the LAA.

5.21The statutory definition appears in Remuneration Regulations 2013 Schs 1 and 2 paras 1(2)–(5):

5.23The meaning of a notice of additional evidence (NAE) may now be liberally interpreted. It was originally indicated that such a notice must be in writing.25R v Sturdy [1999] 1 Costs LR 1. However the practice of the Crown of relying on additional evidence at trial without completing a formal notice has led to decisions such as R v Qu26[2012] 3 Costs LR 599. where it was held that served prosecution documents included prosecution documents which should have been accompanied by a NAE but were not, through no fault of the defence. As the documents were also served on the court they counted towards PPE. It should be noted that Criminal Practice Direction para 3B provides that:

5.26Pages only count if they were produced by the prosecution (rather than merely referred to in general terms). Defence papers do not count.

5.27NAEs are included in page count for graduated fees whatever their nature, eg transcript of first aborted trial.28R v Taylor [2005] 4 Costs LR 712.

5.28The costs judges have in the past accepted an advocate’s page count paid by the court as sufficient evidence29R v Goodridge SCCO 312/08. though the LAA refuses to do so and there is a greater emphasis today on obtaining data from the Crown Prosecution Service (CPS) or, failing that, the court. The LAA is under a duty to examine the papers30R v Rovis SCCO 175/09. but requires the paginated list of exhibits and statements from the prosecution, together with any NAE.

5.29PPE include pages served for the trial of co-defendants after a guilty plea, but before sentence, because a solicitor continues to act in the case until that time.31R v Debenham SCCO 10/12.

5.30The number of pages relevant to a pre-transfer (sending) claim is the number served on the court at the date of the transfer (sending).32R v Greenwood [2010] 2 Costs LR 268.

5.32All witness statements included in the bundles or under a notice of additional evidence will thus count as PPE whether the original statement was created in paper form or digital form. Similarly, if the prosecution create a summary or transcript of an interview with a defendant, this does not need to have existed in paper form to be paid as PPE.

5.33There has been substantial litigation over the issue of whether electronically served pictorial and documentary exhibits count towards page count, which usually generates a higher fee than if the work is calculated as special reparation. A Crown Court judge has jurisdiction, during the course of the trial, to order the Crown to serve documents on paper as part of case management powers, where this is required to benefit the conduct of the trial and not for remuneration purposes.33R v Furniss [2015] 1 Costs LR 1521 and R v AS, Luton CC, 22 June 2015.

5.34Where the Regulations refer to ‘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. Each case is decided on its own merits. In summary, pending further decisions, and relying particularly on R v Napper34[2014] 5 Costs LR 947, SCCO. which was a fully reasoned judgment following many of the cases referred to below, it appears that the position can be summarised as follows:

5.36In R v Lee38SCCO 343/13. the judge considered scheduled readings of tracker devices and handset reports relating to the use of mobile telephones. The evidence was vital to the prosecution case and substantially relied upon. PPE was allowed. Similarly in R v Jalbajhodelehzi39[2014] Costs LR 781 (SCCO). the material was downloads from mobile telephones which was crucial evidence and referred to in the prosecution opening. The solicitors had printed it out to work on it. It connected the defendant to the importation of drugs. The material required the same degree of consideration as evidence served in the case and was an important part of the prosecution case. The nature of the document and all the relevant circumstances must be considered. They will be PPE if they require a similar degree of consideration to evidence served on paper; solicitors using telephone data to show a lack of contact between their client and other defendants (on the ‘drug phone’ in this case) should be paid by PPE for the work involved (R v Dodd40[2014] Costs LR 1131. following Napper (below) and Jalibaghodelehzi).

5.37In R v Chilton,41SCCO 400/14. in a very brief judgment, the costs judge held that the pages did not have to be pivotal to the prosecution case; merely relevant. While the views of a trial judge as to whether material ought to be treated as PPE was not binding on the LAA, considerable weight should be given to that view.

5.38In R v Wortley42SCCO 06/14. the judge identified the significance to the prosecution case of the material in question. A critical schedule was dependent upon it and considerable reference was made to the electronic disc at trial and in trial preparation. If a judge orders that that the Crown may only rely on material, which was originally served digitally if it is served with a NAE and on paper, that order, which will be very unusual, may not be gainsaid by the LAA and the pages count as PPE (R v Nutting43[2013] Costs LR 1037 (SCCO).).

5.39In R v Gillett44SSCO 185/14. and also R v Murray45SCCO 233/14. (as well as in R v Napper46[2014] 5 Costs LR 947 (SCCO).) the costs judges confirmed that the fact that material never existed in paper form is not a decisive factor. However in the former case there as no evidence that the time taken to consider the material by the litigator or advocate (both employed by the same firm) was significant. The costs judge also referred to the fact that the allegation was not of conspiracy but that factor must also be linked to the facts of the particular case.

5.40Further decisions in R v Fiaz47SCCO 57/14. and R v Nicholson,48SCCO 197/14. emphasised that a primary factor is whether the electronic material was crucial to the prosecution’s case, the latter adopting the reasoning in R v -Jalbaghadlehazi, above.

5.41In R v Roberts49SCCO 112/14. the costs judge held that the nature of all material served electronically must be considered as only relevant material or potentially relevant material may count towards page count. If time is taken only to discover that the material is not relevant this should be charged a special preparation.

5.42Much confusion has been caused by R v Furniss50[2015] 1 Costs LR 151. but it is only a persuasive authority of a High Court judge sitting in the Crown Court and is unlikely to be followed under the current Regulations.

5.43Whether digital pages count towards PPE is case-dependent and must meet the relevant importance test: R v Sana.51[2014] Costs LR 1143 (SCCO). That before the current scheme the pages would have been served digitally is not rele-vant. The nature of the document and all the relevant circumstances must be considered. They will be PPE if they require a similar degree of consideration to evidence served on paper.

5.44Solicitors using telephone data to show a lack of contact between their client and other defendants (on the ‘drug phone’ in this case) should be paid by PPE for the work involved: R v Dodd52[2014] Costs LR 1131. following both Napper53[2014] 5 Costs LR 947. and Jalibaghodelehzi.54[2014] Costs LR 781.

5.45The LAA has adjusted its guidance, set out in appendix D of the CCFG, to take some account of the case-law. This identifies the evidence that will be required to substantiate a claim:

5.47Such records only count to the extent that they are reduced by the Crown to an exhibited transcript.56Lord Chancellor v McLarty & Co. Solicitors [2011] EWHC 3182 (QB).

5.48Real evidence does not fall within PPE unless photographed and as such included as an exhibit.57Goodman and Farr v Secretary of State for Constitutional Affairs [2006] EWHC 3669 (QB).

5.51There are three possible categories for each case in order of desirability for maximising fees. If defendants represented by a litigator are dealt with differently, the litigator chooses the best categorisation and applies the mark-ups below.60See Schs 1 and 2 Pt 6.

5.53A trial beginning only when a jury is sworn is at odds with modern practice and more particularly the deciding of key evidential issues and the making of rulings before the jury is sworn. R v Wembo61[2011] 5 Costs LR 926. held that a trial ‘should be taken to be the date upon which … submissions are first made to the trial judge in a continuous process which results in the empanelling of a jury without break of time and in the leading of evidence and the returning of a verdict’.

5.54The matter was comprehensively considered by the High Court in Lord Chancellor v Ian Henery Solicitors Ltd.62[2011] EWHC 3246 (QB).

5.55The principles are as follows:

5.57A trial begins at the start of a formal preparatory hearing65R v Jones X 2000. and this would appear to be the case even if a guilty plea is entered as a result of the legal findings made at that hearing (CCFG 2.1.24 does not appear to be correct). The days used for the preparatory hearing count as days of trial.66CCFG 2.1.10.

5.58A trial also includes a Newton hearing.67See R v Newton (1982) 4 Cr App R (S) 388 and Sch 1 para 2(8), Sch 2 para 2(4). If the planned Newton hearing does not take place, even by the reading of a section 9 statement or the making of section 10 admissions, the case reverts to its original classification.68R v Riddell (X3); R v Hunter-Brown (X29); R v Ayres (X32). If a Newton trial is listed but does not proceed because of the absence of a prosecution witness, the defence version then being accepted, it is the supplementary fee for an ineffective trial that is for that day payable to the advocate.69R v Ayres [2002] 2 Costs LR 330. See ‘supplementary costs’ at para 5.215 below.

5.59A case is a trial notwithstanding that a trial jury could not agree.70R v Finn [2006] 3 Costs LR 525. A trial which ‘settled’ at the close of the prosecution case by a guilty plea to an additional lesser charge was a trial.71R v Alays [2007] 2 Costs LR 321. Once a trial has begun, there cannot be a cracked trial.72R v Maynard (X19); R v Karra (X19A)).

5.60Where there is a video cross-examination ahead of the first hearing at which a plea is entered, in accordance with the provisions of Youth Justice and Criminal Evidence Act 1999 s28, a trial has begun and each day of cross examination counts as a day of the trial (even though there is later a crack).

5.63Thus when a trial commences but is abandoned after three days and there is then a gap of over three months before a full trial of seven days, there is no retrial but rather a trial of 10 days.74R v Cato SCCO 9 March 2012, applying R v Forsyth SCCO 155/10 and R v Seivwright [2011] 2 Costs LR 327. See also R v -Nettleton75[2013] 1 Costs LR 186. and R v Howitt76SCCO 386/12. where there was a gap of five months but still a single trial for costs purposes.

5.64However a degree of flexibility has been introduced by R v Nettleton and others.77SCCO 58/13. Each case is fact specific and the ‘temporal and proced-ural matrix’ of the individual case falls to be considered. The appointment of a new judge to hear the second ‘trial’ will mean that for costs law there is a retrial. The fact that more evidence has been served between trials is not of itself enough. Consideration should be given to the question whether the second trial can be said to have picked up where the first had left off.

5.65A cracked trial can follow a trial when a retrial date is fixed.78LC v Purnell [2009] EWHC 3158(QB); R v Hussain SCCO 217/13; R v Chowdhury [2009] 3 Costs LR 514.

5.66The detailed analysis required to identify the best fee is shown by R v Khan and others (ex Liverpool Crown Court T20117540)79SCCO 316/13. where, on the facts, it was held that two trials, rather than a trial and retrial existed.

5.67The first trial of four days existed because:

5.71Where a not guilty plea is entered and the case adjourned for a mention, a cracked trial exists.82R v Dawson [1999] 1 Costs LR 4. If at, or after, the hearing at which a not guilty plea is entered, counts are severed and following acquittal on the first indictment no evidence is offered on the second, that second is a cracked trial.83R v Chubb [2002] 2 Costs LR 333.

5.72A retrial is a cracked trial if it cracks notwithstanding that a jury could not agree at the first trial.84R v Frampton [2005] 3 Costs LR 527. Where a jury acquit of murder but could not agree on manslaughter or violent disorder and a date for a retrial is fixed at which the case does not proceed to trial, there is a trial fee (for the original trial) and a cracked trial fee in respect of the later events.85Chancellor v Purnell [2009] EWHC 3158 (QB). It is not an extension of the earlier trial. The fixing of the date of the retrial is the key.86R v Hussain SCCO 217/13; R v Chowdhury [2009] 3 Costs LR 514 distinguishing R v Pelepenko SCCO 186/2001 where there was no expectation of a retrial.

5.73If a jury is selected but not sworn before the defendant pleads guilty, there is a cracked trial.87R v Sanghera [2008] 5 Costs LR 823. Where a prosecution is stayed, the case is a cracked trial whether or not the advocate was present on the occasion of the stay.88R v Carty [2009] 3 Costs LR 500.

5.75Where a guilty plea is entered, a guilty plea fee is payable even though the full value of the offence is not known and there are to be confiscation proceedings.91R v Harris [2009] 3 Costs LR 507. It will be otherwise if there is a Newton hearing which is always a trial for graduated fee purposes.

5.76Special rules apply where a case, sent to the Crown Court, is dismissed by the judge before jury is empanelled.92Sch 1 para 22, Sch 2 paras 21 and 22. See paras 5.136 and 5.229.

5.78If an advocate is ordered to attend on a day when the jury does not sit and the court is not called upon to adjudicate on any issue, this day does not count towards the number of days of trial.95R v Budai [2011] 6 Costs LR 1073.

5.79A day on which sentence is imposed counts towards the length of trial if it takes place on the last day of the trial. However, if sentencing is adjourned the sentencing day does not count towards the length of trial uplift.

5.80Special rules apply to determine the number of days of a trial if a hearing is held to determine whether the defendant is unfit to plead or stand trial:96Remuneration Regulations 2013 Sch 1 para 31 and Sch 2 para 25.

5.82If an indictment is quashed and a new indictment for a different offence is preferred that will amount to a second case unless it is purely a tidying up exercise.98R v Sharif SCCO 168/13.

5.83Draft indictments become, on service, an indictment and so count as a case.99Lord Chancellor v McCarthy [2012] EWHC 2325 (QB)

5.84Severance creates a separate case.

5.85The rules on the number of cases are applied mechanically to each individual set of circumstances. Fundamentally the issue is to identify the number of indictments involving each defendant. However, different iterations of the same indictment will be a single case.100Lord Chancellor v McCarthy [2012] EWHC 2325 (QB).

5.86If there is more than one indictment there will be as many cases as there are indictments if there has been no formal order for joinder101R v Hussain [2011] 4 Costs LR 689. or if there has been a misjoinder.102R v Bowen [2011] 4 Costs LR 693. The fact that the cases are listed together for directions and adjourned together103R v Forrester [2012] 4 Costs LR 811. or -listed together for sentence or indeed are sentenced together104R v Ototo SCCO 8/11. is not enough to make them a single case.

5.87A voluntary bill creates an additional case if it is not formally joined.105R v Bowen [2011] 4 Costs LR 693. Formal joinder would appear to reduce the number of indictments.106R v Eddowes, Perry and Osbourne [2011] EWHC 420 (QB).

5.88A breach of the terms of a sentence imposed at the Crown Court must be treated as a separate case from the proceedings in which the order was made. A breach amounting to a criminal offence in its own right, which will be dealt with by an indictment or a committal for sentence, is also a separate case.

5.89Once the number of cases has been calculated different rules apply for litigators from those applicable to advocates.

5.90This is significant for advocates as a fee is payable for each -advocate properly attending. Cases tried concurrently earn for the advocate the fee for the main hearing with a mark-up for each other case. The meaning of concurrent hearings is considered under the paragraph on mark-ups at para 5.208.107R v Fury [2011] 5 Costs LR 919. For litigators a full fee is paid for each separate indictment.

5.91The summary hearing of a Bail Act allegation ahead of the main trial is treated as a standard appearance (see paras 5.196 and 5.207). When a defendant is tried and acquitted on the third day on the first indictment and a second indictment is then cracked on that day the cases are not concurrent and two fees are payable.108R v Tooth [2007] 2 Costs LR 302. For two cases to be heard concurrently, the main hearing in each case must have been heard at the same time.109R v Fletcher (X6); R v Fairhurst (X6A). If an indictment is severed these are separ-ate cases.

5.92It should be noted that once the number of cases has been identified, consideration must again be given to the page count. Only the papers relevant to each particular case may be counted110R v Brindle SCCO 91/11. although there will be cases where all the pages are relevant to all the cases.