R v Muhibur Rahman: Advocate Remuneration Appeal Highlights Errors in Hardship Payments Calculation

Citation: [2023] EWHC 3037 (SCCO)
Judgment on


The case of R v Muhibur Rahman before the Senior Courts Costs Office (SCCO) presents an intriguing appeal relating to advocate remuneration under the Advocate’s Graduated Fees Scheme (AGFS) within the Criminal Legal Aid (Remuneration) Regulations 2013. The central matter is the calculation and reconciliation of a ‘hardship payment’ made to an advocate who had earlier involvement in the case and the proper assessment of the final fees for the appellant advocate, Mr. Robert Smith, who ultimately represented the defendant at the substantive hearing.

Key Facts

Mr. Smith appealed the decision made by the Legal Aid Agency’s Determining Officer regarding his claim for fees under AGFS. Mr. Smith was the last in a succession of advocates who had represented the defendant, Mr. Muhibur Rahman, across various pre-trial preparations and hearings. An earlier advocate, Mr. Cassidy, had submitted a ‘hardship claim’ and was paid as if the case had concluded as a ‘cracked trial’ even though he had withdrawn before the trial occurred. Mr. Smith received significantly reduced fees upon the case’s conclusion and sought appropriate remuneration, contending that the interim payment to Mr. Cassidy was overpaid and the burden of recoupment should not fall on him.

The legal principles hinge on interpreting the AGFS within the Criminal Legal Aid (Remuneration) Regulations 2013, particularly the calculation of ‘hardship payments’ and final case fees. The Costs Judge outlined the regulatory foundation pertinent to the case, notably focusing on the definition of ‘trial advocate,’ ‘main hearing,’ and the conduct in assessing ‘hardship payments.’ The case explores the discretion afforded to the Determining Officer in assigning hardship payments and how the fees should be adjusted should an overpayment occur, especially when the final trial advocate is not the recipient of such a payment.

The Court acknowledged that the principle of reasonable remuneration for work done is central to the Regulations and found fault with the Determining Officer’s initial application of a ‘cracked trial’ fee to Mr. Cassidy’s claim. This became a critical point of analysis given that a ‘cracked trial’ would generally imply a case concluded without a full trial due to a fundamental change, such as a plea change, which was not the case for Mr. Cassidy at the time he withdrew.


The appeal succeeded on the grounds that Mr. Cassidy had been overpaid, which led to an erroneously limited fee granted to Mr. Smith. The Costs Judge determined that Mr. Smith should be considered the ‘trial advocate’ who conducted the ‘main hearing’ and is, thus, entitled to the main payment for his representation. The Court directed that the case fees be recalculated and paid to Mr. Smith, subtracting only the standard appearance fees due to Mr. Cassidy. Additionally, Mr. Smith was awarded the sum paid to lodge the appeal.


The SCCO’s judgment in R v Muhibur Rahman resolved with a careful application of regulatory provisions addressing advocate remuneration, resulting in the realignment of fee payment that reflected the actual work undertaken. This case underscores the importance of accurate categorization of case stages for the purpose of fee calculation and clarifies the responsibilities of the LAA in remedying overpayments. The appeal’s success reinforces the advocacy for the principle that final remuneration should be reflective of the effective representation at the conclusive stage of legal proceedings.

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