Neutral Citation Number: [2009] EWHC 3158 (QB)
Case No: QB/2009/APP/0360
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE COSTS JUDGE CAMPBELL

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 07/12/2009

Before:

SIR CHRISTOPHER HOLLAND 
(sitting as a High Court Judge)
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Between:

	LORD CHANCELLOR	Appellant	
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	(1)  PAUL PURNELL QC
(2)  MARTIN McCARTHY	Respondents	

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VIKRAM SACHDEVA (instructed by Treasury Solicitor) for the APPELLANT
THE FIRST RESPONDENT IN PERSON

Hearing dates: 20 November 2009
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Judgment
SIR CHRISTOPHER HOLLAND (sitting as a High Court Judge): 
INTRODUCTION
1.	This is an appeal by the Lord Chancellor (“The Appellant”) against a decision of Costs Judge Campbell of the 28 May 2009, the power to initiate such an appeal being provided by paragraph 22(5) Criminal Defence Service (Funding) Order 2001.  The Respondents are leading counsel, Paul Purnell QC, and junior barrister, Martin McCarthy.  There was a hearing before me on 20 November 2009 at which there were submissions by Mr Sachdeva on behalf of the Appellant and by Mr Purnell QC on behalf of himself and Mr McCarthy.  To receive these submissions, I sat with two assessors, Costs Judge Simons and Mr Anthony Engel.  Judgment was reserved and it follows herein.  No point has been taken as to whether the Appellant needed permission to appeal.
THE CHRONOLOGY
2.	The essential events are as follows:
19 July 2006:  ‘A’ (a minor), then aged 14 or 15 is committed by Stratford Justices to the Crown Court for trial on a charge of murder.  He is one of seven Defendants.
25 July 2006:  His through Representation Order is extended to cover Leading and Junior counsel – in the event, the Respondents.
26 October 2006:  At the Central Criminal Court there is the Plea and Case Management hearing (“PCMH”).  All the Defendants pleaded not guilty.
14 February 2007:  The trial commences.  The Defendants face three counts.  By Count 1 they are charged with murder; by Count 2, manslaughter; and by Count 3, violent disorder.  The Counts are advanced as sequentially alternative.
30 April 2007:  A third jury (two earlier juries having been discharged) returns verdicts.  As to Count 1, they acquit the then remaining five Defendants of murder.  As to Count 2, they acquit two Defendants of manslaughter but fail to reach verdicts with respect to the remaining three, such including ‘A’.  The jury is accordingly discharged and a discussion takes place in open court as to future progress, slightly hindered by the absence on the day of Leading Counsel for the Crown.  Junior Counsel for the Crown intimates a need to discuss the position with his leader, adding:
“… the likelihood is that there will be a retrial because that is how these things are done, however, I am not in a position to guarantee that at the moment.  I do not what to rush that position because obviously we are concerned here with young defendants and young witnesses.”
In the event, a date for a retrial (6 October 2007) is ‘pencilled in’ and a mention hearing is directed (25 May 2007) for the Crown to specify its position as to future conduct.
15 May 2007:  A letter drafted by Mr Purnell QC for his instructing solicitors, Alexander Johnson, is sent by them to the CPS inviting consideration to discontinuing against their client for reasons specific to him.  The writing of this letter had been preceded by a consultation of counsel directed to preparation for, and tactics at a retrial, and by a discussion between leading counsel and his client’s father.  
25 May 2007:  At the mention hearing the Crown intimates an intention to offer no further evidence against the remaining three Defendants.  No reasons are given.
24 July 2007:  Claims are submitted by the respective Respondents for ‘cracked trial fees’.  These were rejected and an appeal was mounted.
21 October 2008:  The Determining Officer dismissed the appeal.
28 May 2009:  Costs Judge Campbell allowed the further appeal, furnishing reasons in writing.  It is from this decision that the present appeal is mounted.
THE LAW
3.	It is common ground that because the Respondents were acting pursuant to a Representation Order of 2006, their entitlement to a cracked trial fee is governed by the Criminal Defence Service (Funding) Order 2001 and not the successor 2007 Order.  By Schedule 2, part 3, paragraph 9 it is provided:
“(3)  A case on indictment in which a … plea and case management hearing takes place is a cracked trial if it fulfils the following conditions:
(a)  the matter did not proceed to trial (whether by pleas of guilty or for other reasons) or the prosecution offered no evidence, and …
(b) (ii) in respect of one or more counts which were not proceeded with, the prosecution did not, before or at the … plea and case management hearing declare an intention of not proceeding with them.
(4)  A case on indictment in which no … plea and case management hearing takes place is a cracked trial if it was listed for trial but the case was disposed of without a trial (whether by reason of pleas of guilty or for other reasons) or the prosecution offered no evidence.”
4.	It is further common ground that whereas there is no other law that is binding upon me, I may prove to be assisted by reference to certain reported decisions and by reference to the Graduated Fee Scheme Guidance as published by, or on behalf of, the Appellant.  I take each in turn.
5.	As to reported decisions, I was referred by Mr Sachdeva to three such: R v Mohammed, 30 March 2000; R v Pelepenko, 30 May 2002; and Lord Chancellor v Frieze (2007) EWHC 1490 (QB).  I have read the respective judgments with care and cite as follows:
R v Mohammed:  A plea and directions hearing was adjourned for 10 days to enable the Crown to give consideration to the guilty pleas so far entered.  Costs Judge Pollard ruled against a submission that the adjournment in effect created a trial that was ‘cracked’ when at the adjourned hearing the Crown intimated that the pleas were acceptable and offered no further evidence.  He accepted a submission in these terms:
“The essence of a cracked trial is that after the conclusion of the plea and directions hearing or hearings, there are still counts on which the prosecution and defence are not agreed so that a trial remains a real possibility marked by the Court either fixing the date of trial or ordering it to be placed in a Warned List.  Adjourning a plea and directions hearing to allow the prosecution time to decide whether or not to proceed would not qualify for a cracked trial fee.”
R v Pelepenko:  The trial having been stopped by the judge on 1 October 2001, he ordered re-listing for mention on 12 October so that the Crown could indicate its then intention.  In the event no further evidence was offered.  Costs Judge Rogers agreed that paragraph 9(3) appeared to justify payment of a cracked trial fee but ruled that such would be inappropriate: pending the 12 October decision there was no reason to anticipate, let alone prepare, for a further trial.
Lord Chancellor v Frieze:  On the 17 October 2005 at a PCMH the Defendant pleaded not guilty.  Possibly because there had been intimation that he would plead guilty to a lesser offence the case was listed for an adjourned PCMH on 6 January 2006 and a provisional trial date of 20 February 2006 was fixed.  In the event on the 6 January 2006 he pleaded to the lesser offence and the Crown offered no further evidence.  Lloyd Jones J ruled that the hearing of the 6 January was part of the PCMH process so that it did not serve to crack a trial due to start on the 20 February.  In essence, when all the circumstances were considered, the initial fixing of a trial date did not serve to set a trial in train so as to be ‘cracked’ on the 6 January. 
6.	Turning finally to the Graduated Fee Scheme Guidance, I remind myself that such is no more and no less than “Guidance”: it is not a source of law and at best can do no more than illuminate the ongoing application of paragraph 9 to recurring situations.  That said, whereas the relevant October 2005 Guidance at B18 possibly contains pertinent guidance, the successor 2008 Guidance does include very specific and clearly pertinent material: 
“B20(2)(4) “Where there is a change of plea at or before the start of the second trial (or where the prosecution do not proceed on re-trial) and such change of plea occurs within one calendar month of the conclusion of the first trial, the advocate is paid a cracked trial fee for the second trial, but reduced by 40% (subject to F10A).”
7.	Turning to F10A, the test reads:
“Where a trial is aborted, or a jury is unable to reach a verdict, with the prosecution later offering no evidence – a cracked trial fee should not be paid for the second or subsequent intended trial unless the case was again considered ready for trial by being given a fixture listing or placed in a warned list.  Adjourning the proceedings to allow the prosecution time to decide whether or not to proceed further – with the case subsequently being listed for mention at which the prosecution offer no evidence – would not qualify for a cracked trial fee.”
THE EARLIER DECISIONS
8.	The Determining Officer, Pamela Sanderson, opined that the Respondents, having conducted one trial, would have no need to carry out preparation for a re-trial “until a fixture date had been confirmed with a realistic time estimate”.  She considered that the “pencilling in” of a trial date had no more significance than, as it were, getting a foot in the door so as to ensure that the matter did not go off to 2008.
9.	For his part, Costs Judge Campbell, having taken into account the conduct of the Respondents up to and including the letter of 15 May and the full circumstances as known to him, thought 
“There was no question of the matter having been adjourned after trial to allow the Prosecution time to decide whether it intended to proceed further.  It is plain from the Court papers and from the submission of Mr McCarthy that as of 30 April 2007 the Crown intended that there would be a re-trial starting on 8 October 2007 listed for 6 to 8 weeks”.
JUDGMENT
10.	My judgment inevitably owes much to the respective submissions, oral and written.  Without intending discourtesy I do not propose to add to the length of this judgment by rehearsing such: my indebtedness will appear as I give my ruling.
11.	In my judgment this Appeal falls to be dismissed.  There are several reasons; I deal with each in turn.
12.	First, this Appeal as brought pursuant to paragraph 22(5) of the 2001 Order is expressly subject to CPR 52, see paragraph 22(7).  Turning to CPR 52.11, the Appeal is “limited to a review of the decision of the lower Court” and for present purposes can only be allowed if I am satisfied that the lower Court was “wrong”.  As to this, I have reviewed the careful judgment of Costs Judge Campbell, noting his résumé of the law and his recital of the facts.  I have particularly noted that more factual material was available to him than was before the Determining Officer.  On this basis of law and fact he had, in the exercise of reasonable discretion, to make a decision.  He did so.  That decision may or may not have had universal support from his brother Cost Judges – but that is not the point.  What is in point is that I cannot condemn his decision as so outwith the ambit dictated by law and as fact as to be “wrong”.
13.	Let me now turn from a review of the decision of the lower Court, to my approach, were this to be a re-hearing.  First, the law.  The starting point has to be Schedule 2, Part 3, paragraph 9 – indeed, arguably this is the only source of binding law in a field dependent upon provisions spawned by, and ultimately stemming from, the Access to Justice Act 1999.  Focussing upon the situation that arose at and after 30 April, there is a nice but, as I think, ultimately immaterial point as to whether such was covered by 9(3) or 9(4).  Thus, was there up to the 25 May 2007 one trial governed by the PCMH of the 26 October 2006?  If so, 9(3) is pertinent.  Alternatively, was there a series of trials, each necessitated by the discharge of the jury with only the first preceded by a PCMH?  If so, 9(4) is pertinent.  Either way there is definition of a ‘cracked trial’, given a sustained plea of ‘not guilty’, a listing for trial and an offer of no evidence.  
14.	For the Appellant, Mr Sachdeva, submitted that guided by the ‘common law’, that is, the three decisions summarised in paragraph 5 above, I should find that the facts were such as to take the post 30 April situation out of the ambit of paragraph 9(3) and (4).  For my part, I respect these decisions and the laudable desire to fashion good practice upon them but there is, I fear, a limit to their weight at least for present purposes.  Thus, R v Mohammed and Lord Chancellor v Frieze are so factually different as not to assist.  As to R v Pelepenko, there is a superficial factual similarity and I note with interest that Costs Judge Rogers did think that, on a literal reading, paragraph 9(3) justified a ‘cracked trial’ finding – plainly, thus far, he and I are at one.  I turn to his actual decision to refuse the finding of ‘cracked trial’ because as at the Order for re-listing there was no reason to anticipate, let alone prepare for, a further trial.  As to this attempt to achieve a result consonant with the apparent merits, I am sympathetic but I am doubtful as to whether he had the power effectively to add a gloss to the terms of paragraph 9(3).  If through delegated legislation the terms of 9(3) are fixed then there is the legal definition of a cracked trial – if the results are on occasion unpalatable, giving rise to excessive public expenditure on Counsel’s fees, the answer lies in fresh legislation, alternatively, in adjustments as to the calculation of a cracked trial fee.  Be that as it may, in the instant situation the Respondents had, as I think, every reason to expect and prepare for a re-trial.  The case was very serious and so far had featured a finding by at least three jurors that manslaughter had been proved against ‘A’ to the criminal standard.  I am in no way surprised that the Respondents cleared diaries for a trial starting on the 6 October and gave early attention to its conduct and the sustained impact upon their client.  This factually is not an R v Pelepenko situation.
15.	In reaching the views expressed in the preceding paragraph, I have taken comfort from the appearance in the 2008 Guidance of paragraph B 20(2)(4) as cited in paragraph 6 herein.  Why was it deemed necessary to introduce this very specific redrafted guidance?  At the hearing my question had no specific response but I infer that the instant situation had been recurring so that paragraphs 9(3) and (4) were engaged in circumstances that led to arguably excessive fees.  Being rightly unable to gainsay the binding impact of paragraph 9(3) and (4), the guidance now focuses on the quantum of the resultant cracked trial fee.  It is unfortunate that this Guidance did not in the event directly impinge upon the Respondents’ claims – had it done so the respective appeals would have been obviated.  What continues to surprise me is this Appeal – and the force with which it has been presented – given the actual and potential impact of this new guidance.  I write ‘new’ for it is not entirely clear what paragraph B18 of the 2005 Guidance covered.
CONCLUSION
16.	I dismiss the Appeal.  The Respondents seek payment of costs and have submitted fee notes.  My Assessor, Cost Judge Simons, has given consideration to the quantum of the claims and has given me advice on the point which I readily accept.  In the result, I order payment of the Respondents’ costs of this Appeal: as to Mr Purnell QC, £2200 + VAT; as to Mr McCarthy, £1000 + VAT-.
17.	I must express my appreciation of the contributions respectively made by my Assessors, emphasising that this judgment is, as it should be, my own.
18.	This judgment will be handed down.  I look forward to making the resultant Order, presumably consensually drafted.