R v Azad & Anor [2026] EWHC 1859 (SCCO)

[2026] EWHC 1859 (SCCO)Case No T20230032Case No T20230034SCCO Reference: SC-2025-CRI-000147
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Venue Royal Courts of JusticeDate 21 July 2026
London, WC2A 2LL
Before
COSTS JUDGE LEONARDRvAZAD AND GATESJudgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013Appellant: City Law Chambers (Solicitors)This Appeal has been dismissed for the reasons set out below.COSTS JUDGE LEONARD
Between
Azad & AnorDefendantRCrown
[1]The Appellant solicitors represented Mujahid Azad (“MA”) and Daniyal Gates (“DG”), together “the Defendants”, in proceedings before the Crown Court at Wood Green. The defence was funded by Criminal Legal Aid under Representation Orders dated 20 January 2023 and the Appellant is entitled to payment from public funds in accordance with the Litigators’ Graduated Fee Scheme at Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, as in effect on that date.[2]The issue on this appeal is whether, in respect of the Defendants, the Appellant is (in accordance with the decision of the Legal Aid Agency’s Determining Officer) entitled to the graduated fee payable where there has been a trial followed by a re-trial, or whether (as the Appellant argues) two full trial fees are payable. There is a significant difference: paragraph 13 of Schedule 2 provides that a retrial fee will be 25% of a full trial fee.

The Procedural History

[3]The case against the Defendants arose from Operation Yamata, a Home Office-funded Metropolitan Police initiative targeting street-level drug trafficking across East London. On 17 January 2023, police executed a search warrant at 33 Ellsworth Street, Tower Hamlets. DG and MA, along with Zahyan Gates (”ZG”) and Halim Azad (“HA”), were arrested and charged following the recovery of large quantities of Class A and Class B drugs, cash, and incriminating mobile phone evidence.[4]The first form of indictment against the Defendants, was a five-count indictment from December 2023. Count 1 read:
“MUJAHID AZAD, HALIM AZAD, DANIYAL GATES and ZAHYAN GATES, on the 17th day of January 2023, were concerned in the supplying of a quantity of cocaine, a controlled drug of Class A, to another in contravention of section 4(1) of the Misuse of Drugs Act 1971.”
[5]Count 2, against MA, was of possession of cannabis with intent to supply. Counts 3, 4 and 5, against MA, HA and ZG respectively, were of possessing criminal property.[6]On 21st February 2023, ZG pleaded guilty and was severed from the continuing trial process. Trial was set for MA, HA and DG (all of whom had entered Not Guilty pleas) on 13th February 2024.[7]Following the presentation of the prosecution case in the February 2024 trial, the trial judge, His Honour Judge Algazi KC, made a formal ruling of no case to answer in relation to HA. The jury was hung for MA and DG, and was discharged on 26th February. At the conclusion of the proceedings, the Crown indicated they would seek a retrial of MA and DG. The Court fixed the trial for 20th January 2025.[8]The indictment upon which MA and DG were tried in January 2025 was a three-count indictment. Count 1 read:
“MUJAHID AZAD and DANIYAL GATES , on the 17th day of January 2023, together with ZAHYAN GATES were concerned in the supplying of a quantity of cocaine, a controlled drug of Class A, to another in contravention of section 4(1) of the Misuse of Drugs Act 1971.”
[9]Counts 2 and 3, against MA, were identical to counts 2 and 3 against MA in the December 2023 indictment.[10]The January 2025 trial took place before HHJ Fugallo KC. On 29 January 2025, both the Defendants were acquitted on all counts.

Submissions and Conclusion

[11]Schedule 2 starts at paragraph 1(1), with this definition:
“In this Schedule— ‘case’ means proceedings in the Crown Court against any one assisted person… on one or more counts of a single indictment…”
[12]The particular significance of that definition, for the purposes of this appeal, is that there can be only one graduated fee for one case. That principle was put beyond doubt by the decision of Mr Justice Spencer in Lord Chancellor v Eddowes Perry and Osbourne Ltd [2011] 3 Costs L.R. 498, based upon identical wording in the predecessor to the 2013 Regulations.[13]There is no provision within the LGFS for two full trial fees to be paid for one case. If, within a single case, there has been more than one trial then a full trial fee will be payable for the first trial and a retrial fee thereafter.[14]There are cases in which it is right to reach the conclusion that there has been more than one indictment, and therefore more than one case, against a given defendant. The result is that two more than one case fee will be payable. Depending upon the circumstances, that might well lead to the conclusion that two full trial fees are payable.[15]As regards the Defendants, the Appellant has submitted that the change in the wording of count 1 in the indictment, between December 2023 and January 2025, advanced a new theory of joint enterprise which had been absent from its original wording. The Appellant argues that the Crown’s case against the Defendants changed very significantly between the February 2024 and January 2025 trials, in particular in that the four defendants had originally been alleged to be operating independently from the same address, whereas by January 2025 the Crown’s case was that there was a joint enterprise between DG, MA and ZG, with DG exercising control.[16]This, says the Appellant, led to the introduction of a much larger body of prosecution evidence, including over 107,000 pages of new digital material from a previously unused phone exhibits in particular, communications data was used selectively by the prosecution. This necessitated much work on the part of the defence team in order to go through that evidence and challenge (in the event, successfully) the Crown’s selective interpretation of it.[17]I admit to some surprise at the proposition that it could ever have been the Crown’s case that four individuals were running four entirely independent class A drug dealing businesses from one address. This seems to me to be inherently unlikely. It seems to me more likely that in order to bolster its case against the Defendants after the first trial, the Crown put together much more evidence to demonstrate exactly who had done what.[18]However that may be, Mr McCarthy KC, representing the Appellant on the hearing of this appeal (having, understandably, adopted the Appellant’s arguments in his initial written submissions) accepted that this is not a case in which one can say that there was more than one indictment against the Defendants.[19]That has to be correct. It is not possible to attach to the minimal change to the wording of count 1 between December 2023 and January 2035, the significance that the Appellant has attempted to impose upon it. The wording appears to have changed only to reflect the fact that ZG had already pleaded guilty to the substantive offence of supplying a class A drug. There was no material change to the indictment against either of the Defendants.[20]Mr McCarthy points however to the substantial changes in the case against the Defendants between February 2024 and January 2025, as well as to the long period between the two trials and the change of trial judge.[21]The parties have referred to a number of Costs Judge decisions. Some of those referred to b the Appellant in submissions to the Legal Aid agency are entirely irrelevant. The rest do not support the Appellant’s case and do not merit detailed consideration here.[22]I have focused rather upon the decisions referred to by Mr McCarthy, and by Ms Weisman for the Respondent. Again, it is not necessary for me to refer in any detail to those that necessarily address the question of whether there has been more than one indictment (and so more than one case) against a given defendant, because it is accepted that in this case, there was never more than one indictment.[23]I should however mention the decision of Cost Judge Whalan in R v. Curtis Howarth [2024] EWHC 310 (SCCO) and [2026] EWHC 249 (SCCO), in which he explained in his second judgment that what might have looked like a decision in his first judgment to the effect the two full trial fees were payable, was in fact a decision to the effect that the fee payable was for a trial followed by a retrial (some confusion tends to arise that the 2013 Regulations tend to use the words “retrial” and “new trial” interchangeably). Neither decision can be cited in support of the proposition that two trial full fees can ever be payable in one case.[24]I should also refer briefly to R v Elijah Heart [2025] EWHC 2735 (SCCO), a decision of Costs Judge Nagalingham, which in Mr McCarthy’s submissions has the appearance of a decision that two full trial fees were payable on grounds other than that there had been more than one indictment.[25]That is not my reading of Judge Nagalingam’s decision, which referred specifically (at paragraph 68) to changes to the indictment, which seems to have contributed to his conclusion that two full trial fees were payable.[26]In any event, the principle established by Lord Chancellor v Eddowes Perry and Osbourne Ltd (and the clear consensus amongst Costs Judges, who are bound by it) is that where there has been only one indictment, and therefore one case, against a given defendant, it can never be right to conclude that two full trial fees are payable.[27]The changes in the case described by the Appellant and Mr McCarthy between the February 2024 and January 2025 trials, are the sort of changes often successfully cited by appellants in support of the proposition that there has been a trial and a retrial, as opposed to one continuous trial. They do not and cannot support the conclusion that two full trial fees are payable where there has only ever been one case.[28]I can sympathise with the Appellant’s desire to be paid a full trial fee for a second trial which seems to have required a good deal more work than the first. That is not, however, how the 2013 Regulations work. It is an established principle that they must be applied mechanistically, on the understanding that the “swings and roundabouts” principle underpinning them means that in some cases, litigators will appear to be poorly rewarded compared to others.[29]For those reasons, I agree with the Determining Officer’s conclusion that a retrial fee is payable for the January 2025 trial. This appeal must be dismissed.