Background
Hodge Jones and Allen took over Nathan O’Brien’s legally aided defence on 15 October 2025, one week before his final Crown Court trial on a charge of conspiracy to kidnap. The prosecution offered no evidence on 27 October 2025, and O’Brien was formally acquitted.
The proceedings had included earlier trials that ended without a verdict, including a May 2024 trial, but the indictment did not materially change. The firm claimed a full trial fee for the October 2025 proceedings, relying on the lengthy break, a new defence team, substantial late disclosure, and the trial judge’s statement that the matter should be treated as a “new trial.” The Legal Aid Agency’s Determining Officer instead allowed a 50% retrial fee.
The Court’s Holding
Costs Judge Leonard dismissed the firm’s appeal. The October 2025 proceedings were a separate further trial—described as a “retrial” under Schedule 2 of the Criminal Legal Aid (Remuneration) Regulations 2013—but they remained part of the same “case” because there had been no material change to the indictment.
Under paragraph 13 of Schedule 2, a new litigator taking over after an initial trial but before a retrial receives 50% of the full trial fee. Although the “new trial” terminology used in the advocates’ scheme and the “retrial” terminology used in the litigators’ scheme can cause confusion, the terms cover the same situation and do not authorize a second full trial fee. The Regulations operate mechanistically, leaving the court no discretion to increase the award because of the firm’s substantial work or late instruction.
Key Takeaways
- A “new trial” and a “retrial” describe the same type of further trial for purposes of the graduated-fee schemes.
- A substantial temporal and procedural break may establish a separate trial, but it does not create a new “case” where the indictment remains materially unchanged.
- A litigator who takes over after an earlier trial and before a retrial is entitled to the 50% fee specified by Schedule 2, not a full trial fee.
Why It Matters
The decision clarifies that the classification of proceedings as a “new trial” does not itself generate entitlement to another full graduated fee. Litigators must distinguish between a further trial within the same case and a genuinely new case, such as one arising from an entirely new indictment.
It also underscores that judicial praise, extensive late work, and considerations of fairness cannot displace the fixed payment rules in the 2013 Regulations.