Costs Judge Rules on Categorization of Legal Fees in R v Samad Ali: Key Issue of 'Trial' vs. 'Cracked Trial' Determined

Citation: [2024] EWHC 14 (SCCO)
Judgment on


The case of R v Samad Ali, as decided by Costs Judge Leonard in the Senior Courts Costs Office, concerns an appeal against the categorization of legal fees under the Criminal Legal Aid (Remuneration) Regulations 2013. The key issue is whether the case qualified as a ‘trial’ or ‘cracked trial’ for the purpose of remuneration. This discussion will examine the legal principles applied by the court, referencing the judgment and the legal context which informs it.

Key Facts

In R v Samad Ali, the defendant faced two charges related to the possession of Class A drugs with intent to supply, with a defence under Section 45 of the Modern Slavery Act 2015. The dispute arose when the defendant’s solicitors appealed the fee categorization, arguing that a trial had commenced and thus warranted a higher fee than that provided for a ‘cracked trial’. The Graduated Fee Scheme outlines payment for litigators where a ‘cracked trial’ results when a not guilty plea is entered and the case does not proceed to trial for various reasons including a change of plea to guilty or no evidence offered by prosecution.

The appeal hinged on whether substantial case management issues were addressed, thereby indicating that a trial had meaningfully begun, as outlined in Lord Chancellor v. Henery [2011] EWHC 3246 (QB).

In Ali’s case, a critical factor was the admissibility of an expert report by Dr Grace Robinson, upon which the defence sought to rely. The Crown countered that the report was inadmissible as hearsay in line with the Court of Appeal’s findings in R v Brecani [2021] EWCA Crim 731. On the trial date, before a jury could be sworn, the defendant changed his plea to guilty following an indication from the judge that the expert evidence would not be admitted.

The legal principles central to this case are the definitions of a ‘trial’ and ‘cracked trial’ for the purpose of litigator remuneration, the admissibility of evidence (namely expert reports and hearsay), and the determination of whether a trial has started in a “meaningful sense”. The decisions in Lord Chancellor v. Henery and R v Brecani are instrumental in informing these principals.

Costs Judge Leonard applied the principles from Henery, particularly that the key consideration is not whether a jury has been sworn but whether substantial case management issues have been addressed. Following the precedent set in Brecani, the decision regarding the inadmissibility of certain expert opinion evidence based primarily on hearsay was pivotal.


Judge Leonard determined that no substantial matters of case management had been addressed in the case of R v Samad Ali, and that the trial had not begun in a meaningful sense as per the legal criteria. The attempt by the defence to adjourn the trial due to the unavailability of their expert witness, and to rely on inadmissible evidence, did not amount to substantial case management. Consequently, the categorization of the proceedings as a ‘cracked trial’ was upheld, and the appeal for a trial fee was dismissed.


In R v Samad Ali, the determining factor for the classification of proceedings hinged on whether a trial had meaningfully commenced. The court concluded that the proceedings had not reached this threshold, drawing from the principles outlined in Henery and Brecani. This case underscores the importance for practitioners of understanding the nuanced criteria for what constitutes the start of a trial and highlights the influence of admissibility rulings on the strategic decisions made during criminal proceedings. The dismissal of the appeal affirms the application of existing legal frameworks in discerning fee classifications under the Criminal Legal Aid (Remuneration) Regulations.

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