R v Elijah Heart [2025] EWHC 2735 (SCCO)

[2025] EWHC 2735 (SCCO)Case No T20217262SCCO Ref: SC-2024-CRI-000152
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Venue Royal Courts of JusticeDate 20/10/2025
London, WC2A 2LL
Before
COSTS JUDGE NAGALINGAMR-v-Elijah HeartIN THE MATTER OF AN APPEAL AGAINST REDETERMINATION
Between
RH Law Solicitors LimitedAppellantThe Lord ChancellorRespondentHearing Hearing date: 07/08/2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 22/10/2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
COSTS JUDGE NAGALINGAM

Background

[1]The Defendant, Elijah Heart, was originally charged on a two count indictment.[2]Count 1 was for Conspiracy to Convert Firearms, contrary to section 1(1) of the Criminal Law Act 1977, in that between the 14th day of June 2020 and the 28th day of May 2021 the Defendant conspired together with six others (named in the indictment) “and with other persons unknown, not being registered firearms dealers, to convert into firearms things which though having the appearance of firearms were so constructed as to be incapable of discharging missiles through their barrels.”[3]Count 2 was for Conspiracy to Sell or Transfer Prohibited Weapons, contrary to section 1(1) of the Criminal Law Act 1977, in that between the 14th day of June 2020 and the 28th day of May 2021 the Defendant conspired together with six others (named in the indictment) “and with other persons unknown to sell or transfer prohibited weapons in contravention of Section 5(2A) of the Firearms Act 1968.”[4]On 24 June 2021 the Defendant appeared before the Crown Court at Manchester Crown Square. Over the course of a number of subsequent hearings three of the co-defendants (Mr Hughes, Ms Simmons and Mr Donald) pleaded guilty and their cases were adjourned for sentencing.[5]On 30 September 2021, the Defendant pleaded not guilty to both counts faced and her case was adjourned for trial. An original proposed trial date of 30 November 2021 could not be accommodated and a new date was set for the Defendant to stand trial alone on 25 July 2022.[6]In the intervening period three more co-defendants (Mr Baker, Mr Edwards and Ms Festus) were charged with the same offences, such that all of the defendants (including Ms Heart) faced a common conspiracy.[7]On 17 March 2022, an unopposed application for Joinder along with a ‘joint trial’ indictment was placed before the court. Mr Baker subsequently pleaded guilty and he too was adjourned for sentence. The Court thereafter determined that Mr Edwards, Ms Heart and Ms Festus would stand trial together on 25 July 2022.[8]Prior to the commencement of the trial it became apparent that the legal teams representing Mr Edwards and Ms Festus would not be trial ready. The Defendant was therefore severed from the original two count indictment and a new indictment was laid, on the same charges, where Ms Heart was the only defendant and stood trial alone before HHJ Johnson at Manchester Crown Square on 25 July 2022. For the purpose of terminology in this judgment, this is referred to as “Trial 1”.[9]Trial 1 ran from 25 to 27 July 2022 but was halted due to ongoing health problems with the Defendant which meant that the trial was unable to proceed.[10]The Crown sought a retrial and the Defendant’s case was adjourned for a case management hearing. The Defendant’s case was added to a new five count indictment and was subsequently consolidated with the trials of Mr Edwards and Ms Festus, which proceeded from 28 October 2024 to 12 November 2024. For the purpose of terminology in this judgment, this is referred to as “Trial 2”.

The Claim

[11]The Respondent has already paid the Appellant a full trial fee in respect of Trial 1.[12]However, the Appellant seek to appeal against the decision of the Respondent’s Determining Officer, to pay their claim under the LGFS in respect of Trial 2 as a retrial as opposed to a new trial.[13]The sole issue between the parties is whether the Appellant is entitled to a second trial fee of £90,172.69 including VAT for Trial 2, or whether this should be limited to a fee for a ‘retrial’ of £22,543.19 including VAT.

Submissions

[14]The Respondent was unrepresented at the hearing of this appeal by prior notification, stating via email in advance of the hearing that “The LAA rely on the determining officer’s written reasons, and do not propose to attend the hearing”.[15]The written reasons in question are dated 18 December 2024 and set out:
“The court log shows that the case proceeded to trial between 25/07/2022 and 27/07/2022. This was halted due to ongoing health problems with the defendant which meant that the trial was unable to proceed. At this point the judge then confirmed that the defendant’s case was to be fixed for retrial and consolidated with the trial of the co-defendants Edwards and Festus. The defendant was therefore joined to the Indictment of Edwards and Festus. The retrial then proceeded from 28/10/2024 to 12/11/2024. There appears to be no significant changes in the presentation of the case that the defendant faced. The defendant still faced the same two charges as the original Indictment. What appears to have happened is that he was joined to the Indictment of co-defendant’s who had already been named in relation to the conspiracy which Elijah Heart was part of. There appears to be no significant changes to the presentation of the case against Elijah Heart and appears to be all part of the same set of proceedings against the defendant. There is no evidence that there was a complete abandonment and beginning of fresh proceedings. Where defendants are joined onto one indictment or a single defendant has been committed separately for matters which are subsequently joined onto one indictment, this would be considered to be one case, and the litigator may claim one fee. This is what appears to have taken place in this case, all the Indictments were consolidated to form one Indictment and form one case. There appears to have been no significant changes to the presentation of the case. We have allowed a second fee in relation to a retrial on the basis that there was a break in the temporal and procedural matrix. This is on the basis of changes to the Indictment; additional evidence being served, there being a change of trial judge and the amount of time that elapsed between the two sets of hearings A break in the temporal and procedural matrix denotes that there was a trial followed by a retrial, also referred to as a new trial, rather than a continuous trial which would only be remunerated as a single trial fee.”
[16]Thereafter, citing the Crown Court Fee Guidance, the written reasons plead that “A case is defined as proceedings against a single person on a single indictment regardless of the number of counts”, and that “Where an Order is Made for a New Trial”, the guidance for litigators is:
“Where an order is made for a retrial and the same litigator acts for the defendant at both trials the fee payable to that litigator is a graduated fee for the trial and 25% of the fee as appropriate to the circumstances of the retrial. If there is an order for a retrial and the case is transferred to a new litigator then each litigator is paid a proportion of the graduated fee. Where an Order is Not Made for a New Trial It is acknowledged by all stakeholders that an order for a new trial is rarely made, and all other relevant factors must be taken into account when making a determination. In cases where there is no order made by the judge, then the LAA will apply the reasoning in Costs Judge decision: R. v. Nettleton (Mr Doran) (2012). In this case, Master Gordon-Saker held that if there is no order by the judge that there will be a new trial and the second leg of the case is deemed to be part of the ‘same temporal and procedural matrix’, then the fee payable is for one trial only. In Nettleton, despite the fact that there was a gap of two working days after the first jury was discharged, Master Gordon-Saker ruled that the case should be paid as one trial because it was part of the same trial process.”

Where an Order is Not Made for a New Trial

[17]In recognising no more than a break in the temporal matrix, the Respondent maintains “only a retrial fee would be considered payable in the relation to the dates of 28/10/2024 to 12/11/2024”, and states they “would only pay a second full trial fee in cases where the defendant faced wholly new/different case compared to the original trial.”[18]The Appellant is represented by counsel Mr Colin Wells who relied extensively on the bundles uploaded to the document upload centre and a comparator document which seeks to set out the main differences between Trial 1 and Trial 2.[19]Mr Wells succinctly summarises the circumstances as a 7-handed conspiracy for which only three defendants went to trial, the other four having pleaded guilty.[20]He argues that whilst Trial 1 collapsed after 2 days due to the Defendant’s ill-health, Trial 2 was a different trial for “many reasons”.[21]Mr Wells relies on a recent decision of Costs Judge Whalan in the matter of R v Howarth [2024] EWHC 310 (SCCO) which also concerned the question of whether the Appellant litigator should be remunerated on the basis of a retrial or a new trial.[22]In Howarth, the costs judge concluded that it was “axiomatic [that] in discharging the first jury and ordering a re-listing, the trial judge was ordering necessarily a new trial”, and at paragraph 13 found:
“Almost a year elapsed between the first and second hearing. By the second trial, the judge had changed, some of the advocates were different, a new jury was empanelled, the co-defendant profile had changed as at least one had absconded, and the evidence had developed considerably.”
[23]In doing so, Costs Judge Whalan found that the Appellant ought to be remunerated on the basis of a trial followed by a new trial.[24]Mr Wells contends that the facts of the index appeal largely mirror those in Howarth, and commends Costs Judge Whalan’s analysis of the remuneration regulations and associated guidance therein.[25]Amongst the key differences Mr Wells invites me to consider, he relies on paragraph 20 of his skeleton argument in that:(a) At Trial 1 the Defendant stood alone. At Trial 2 she stood with co-defendants.(b) Trial 2 began around 2½ years after Trial 1 concluded, by which point nearly 5,000 pages of additional evidence was served by the prosecution.(c) At Trial 2, the prosecution narrative had altered from alleging the Defendant’s role in the conspiracy was now “significant”, rather than the lesser role alleged at Trial 1.(d) Trial 1 ran for less than 3 days. Trial 2 ran for 12 days.(e) The co-defendant profile had changed between Trial 1 and Trial 2.[26]Mr Wells drew my attention to a CPS letter dated 23 July 2021 which sets out there were 156 pages of “statements”, 456 pages of “DCS Exhibits”, 620 pages of “Witnesses etc” and 43,261 pages of “DCS Digital Exhibits” prior to Trial 1.[27]He invited contrast be drawn with the status of evidence as at 11 October 2024, where the digital evidence alone had grown from 43,261 pages to 47,945 pages.[28]In terms of standing with co-defendants by the time of Trial 2, Mr Wells submits there were large volumes of evidence admissible at Trial 2 that had not been admissible for Trial 1. A new defence strategy was also necessary due to the risk of co-defendants giving potentially prejudicial evidence under cross examination, and the potential for applications regarding character and hearsay evidence.[29]In terms of additional evidence, Mr Wells submits that the prosecution presented a new sequence of events by the time of Trial 2. This included thousands of pages of additional evidence including telephone analysis, surveillance material, cell site data and financial documents.[30]In so far as a prosecution change of narrative was relevant, Mr Wells explained that at Trial 1 the prosecution had largely conceded that the Defendant had acted under the influence and direction of co-defendant Mr Donald. However, by the time of Trial 2 the prosecution sought to elevate the Defendant’s role to one of “significant” based on telephone data and analysis of financial records which demonstrated contact with co-conspirators for the first time.[31]Thereafter, citing the prosecution opening note for Trial 2, Mr Wells invited me to note the greater involvement attributed to the Defendant as compared with at Trial 1. For example, by the time of Trial 2 the relationship between the Defendant and Mr Donald was better established. It was also established that Mr Donald was thought to be a “major player” and that the Defendant was “in the thick of it and she cannot have been doing so in ignorance of what it was all about”.[32]The note also references at least one new co-defendant who was not named at the time of Trial 1. Mr Wells argues this is significant given that at Trial 2 the prosecution case looked more closely at contact between the Defendant and her co-defendants.[33]At Trial 2, the prosecution also had a new focus on various stores in various towns visited by the Defendant and co-defendants for the purchase of starter pistols and ammunition. This included CCTV evidence from those stores demonstrating when such purchases were made and by whom.[34]In the case of the Defendant in particular, the prosecution sought to present evidence that over a 5 month period she made contact with 8 different shops selling starter pistols on 27 occasions. Evidence was also presented that the Defendant bought a total of 17 blank firing pistols and various quantities of ammunition, paying in cash. Cell site data was used as part of the evidence in attributing such purchases to the Defendant.[35]Mr Wells also cited a particular focus on the Defendant’s mobile phone records showing contact with the co-defendants being tried in Trial 2, which was not set to be a factor in Trial 1.[36]Mr Wells highlighted further new allegations, in terms of the contact the Defendant had been said to have made with a gunsmith both by telephone and physical visits, further gun stores said to have been contacted by the Defendant, and ballistic vests order by her and found at her premises.[37]The Appellant has prepared a helpful comparator document which demonstrates, as a matter of fact, that between Trial 1 and Trial 2 there was a change of court venue, a change of trial judge, a change of defence counsel, an increase in defendants standing trial from one to three, an increase in trial length from 3 days to 12 days, and service of an additional 4,941 pages of prosecution evidence. The comparator document also confirms a gap of 2 years, 3 months, 1 week and 2 days between Trial 1 and Trial 2.[38]Mr Wells explained that there is no prosecution opening note for Trial 1 but averred that was not uncommon for a single defendant trial (as Trial 1 was before adjournment after 2½ days).[39]In the absence of a prosecution opening note for Trial 1, Mr Wells invited consideration of the Crown’s “Operation Analogue – SHORT NOTE IN RESPECT OF BAIL” document dated 7 June 2021.[40]In summary, the prosecution’s bail note confirms the Defendant (then aged 28) was one of four defendants sent to the Crown Court in respect of charges of conspiring to(1) convert imitation firearms into firearms and(2) transfer those firearms to others.[41]The Defendant is confirmed as having no previous convictions or cautions but was remanded into custody owing to the court’s conclusion that there were substantial grounds for believing that, if granted bail, the Defendant would “(1) Fail to Surrender; and / or (2) Interfere with witnesses and / or the course of justice; (3) Given the nature and seriousness of the allegations.”[42]The Defendant was sent to the Crown Court on 29 May 2021 and was due to appear on 24 June 2021 for a Plea and Trial Preparation Hearing. The Defence argued a presumption in favour of bail and made observations about the nature and strength of the evidence against the Defendant, as well as submissions made about her personal circumstances.[43]The prosecution observations noted that “Whilst there is (certainly at the moment) no evidence to suggest that she was in contact with any other conspirator, she appears to have worked under the direction of her partner and co-conspirator, Gavin DONALD, for a number of months and been involved in making purchases from a number of different establishments.”[44]The status of the investigation, as at 7 June 2021, was described as “The investigation is, in fact, continuing; others suspected of having involvement are yet to be arrested.”. Concerns for the welfare of the Defendant and her four young children were also raised, with the Defendant at that time incarcerated and displaying self-harming behaviour during her police interview.[45]As per the arguments set out in the Appellant’s Notice and skeleton argument of Mr Wells, the Appellant submits that the Defendant’s severance, her standing trial alone and subsequent rejoinder, and all of the factors outlined above, combine to lead to the conclusion that Trial 2 was fundamentally different from Trial 1 such that Trial 2 should attract a trial fee and not a retrial fee.

Relevant Legislation

[47]The applicable regulations are The Criminal Legal Aid (Remuneration) Regulations 2013 (‘the 2013 Regulations’), as amended in 2018.[48]The Respondent referred me to paragraph 13 of Schedule 2 of the 2013 Regulations, which sets out provisions for circumstances in which the litigator represents the defendant at trial and any retrial: 13.—(1) Where following a trial an order is made for a retrial and the same litigator acts for the assisted person at both trials the fee payable to that litigator is—(a) in respect of the first trial, a fee calculated in accordance with the provisions of this Schedule; and(b) in respect of the retrial, 25% of the fee, as appropriate to the circumstances of the retrial, in accordance with the provisions of this Schedule. Analysis and decision[49]The background and relevant case facts are outlined above and therefore not repeated here.[50]Whilst the Appellant relies on the decision of R v Howarth, the question in that matter was whether there had been one continuous trial (albeit it with a period of hiatus) or a trial and new trial.[51]It strikes me that in the index appeal, it would have been open to the Respondent to make a ‘Howarth’ type continuous trial argument, but instead the Defendant has adopted a pragmatic approach in remunerating the Appellant based on a trial and re-trial, having had regard to the ‘Nettleton’ principles.[52]In Howarth, Costs Judge Whalan directed the claim be assessed as a trial followed by a new trial, only after he had drawn the following conclusion: “The correct conclusion, in my view, is that on the facts of this case there were two trials, and not one continuous trial running effectively from June 2022 to June 2023”.[53]In R v George, Costs Judge Whalan addressed the issue of what is meant by a “new trial” where, at paragraph 13, he records “It is important, in my view, to note that the relevant nomenclature is ‘trial’ and ‘new trial’, and not ‘second trial’ or ‘retrial’…”.[54]In R v Innes, the issue of whether a second hearing was paid as a separate trial or a re-trial was considered in a litigators’ appeal heard by Costs Judge Rowley. In that case, the Defendant faced a five count indictment and at the first trial he was convicted on the 5th count, with the jury otherwise unable to reach a verdict in relation to the other (manslaughter) charges.[55]At the second trial, the trial judge (who did not hear the first trial) observed that the basis upon which the Defendant had been convicted on the 5th count was flawed, because the parties had been proceeding on a misapprehension as to whether certain reporting obligations (to reporting groundings of a yacht’s keel) applied in the circumstances the defendant had found himself in. As well as the potential impact on the 5th count, the ruling also had a bearing on to what extent other general criticisms of the defendant could be maintained.[56]This all meant the judge in the second trial had to make a number of findings of fact for the purposes of sentencing the defendant in respect of the 5th count. These findings were made in the course of hearing evidence in respect of the manslaughter charges, as opposed to their being a trial of counts 1-4 and then a Newton Hearing in respect of sentencing of the 5th count. Thus in Innes, the appellant’s cases was that a Newton Hearing had taken place following conviction on count 5, albeit in parallel with the substantive trial concerning counts 1-4.[57]The key feature of Innes is that the statutory footing upon which the defendant was convicted on count 5 was not attacked until a change of leading counsel for the second trial. The subsequent ruling by the trial judge at the second trial significantly altered the course of that trial, further witnesses were called and some 3,000 additional pages of evidence were produced.[58]Cases such as R v Nettleton [2014] 2 Costs LR 387 are concerned with the notion of a break in the “temporal or procedural matrix”, but that is in the context of considering whether there has been a single continuous trial, or a trial and retrial (for remuneration purposes), the latter being remuneratively more rewarding than the former.[59]The question of whether there has been a trial and a separate “new” trial is a question of fact. It cannot be inferred.[60]At paragraph 13 of Innes Costs

Judge Rowley observed:

“It is impossible not to have sympathy with the solicitors in circumstances where a retrial proves to be longer than the original trial and throws up significant new issues during its course. It cannot have been the intention of the regulations to reward such a hearing with a fee of only 25% of the original hearing. Such reduction must assume that there will be rather less for the litigator to do in the second trial since much if not all of the preparation from the first trial can simply be carried over into the second hearing. Where a trial does become significantly more involved than the first one, that assumption is obviously proved false.”
[61]See also at paragraph 15 of Innes where Costs Judge Rowley observed that “the regulations are clear in contemplating a trial and retrial but not the situation where two full trials can be remunerated in the absence of severance, quashing or staying of the original indictment taking place”.[62]I accept the Appellant’s contention, which in any event I don’t understand to be rejected by the Respondent, that the presence or absence of an order for a new trial is not of itself determinative of the question before me. It is more important is to look at the factual reality of what took place because in terms that there either was or was not a new trial.[63]The Respondent recognises changes to the indictment, the service of additional evidence, a change of trial judge, a change of trial location, a change of defence counsel and the lapse of time between 27 July 2022 and 28 October 2024. However, the Defendant considers those factors do not meet the threshold for a trial followed by a new trial, but rather a retrial.[64]The question of continuous trial, or trial and re-trial, or trial and new trial, is a common feature of appeals in this court. The bar for remuneration on the basis of trial and new trial is high, and decisions such as Innes recognise the potential for unfairness in the remuneration system.[65]Any instance where a determining officer or costs judge on appeal concludes remuneration on the basis of a trial and new trial seems rare, but that is because such a determination will always be on the facts of the individual case.[66]In the index matter, the starting point is not whether this was a continuous trial. It clearly was not and the Respondent does not raise such an argument.[67]Factors such as passage of time, change of judge, or even a change of counsel and jury in addition have been known to fail the threshold to be considered a new trial as opposed to a retrial.[68]All of those factors are present here. However, I consider the Respondent has attached too little weight to the additional factors of a change to the indictment (severance and rejoinder), a change from a single defendant trial to being tried on the basis of active participation in a wider conspiracy, and the addition of several thousand pages of new evidence and video evidence (which was to be used to argue a significant rather than lesser role).[69]Thus and only because of the factors unique to this matter I allow the appeal and the matter shall accordingly be remitted to the Legal Aid Agency for any further remuneration due.

Costs

[70]The Appellant seeks a recovery of £100 to cover the appeal fee, and £500 plus VAT for the cost of engaging Mr Wells. COSTS JUDGE NAGALINGAM

Cited in 1 later judgment