Costs Judge Leonard ruled only a 50% retrial fee was payable under the 2013 Regulations.
Legal aid trial fees were at the centre of a High Court appeal dismissed after Costs Judge Leonard ruled that solicitors were entitled to only a 50% retrial fee, despite taking over representation shortly before the final trial.
The judgment in R v O’Brien [2026] EWHC 2410 (SCCO) was handed down on 18 September 2026 in the Senior Courts Costs Office. Hodge Jones & Allen had represented Nathan O’Brien in Crown Court proceedings at Portsmouth and appealed against a Legal Aid Agency decision limiting its payment for the October 2025 trial to 50%.
The case involved a long-running prosecution on one count of conspiracy to kidnap. The first trial in August 2021 did not conclude after O’Brien became ill with Covid and the defence advocate withdrew. Further proceedings followed, including a trial in April and May 2024 which ended without a verdict. The case was subsequently listed for October 2025.
In August 2025, O’Brien dispensed with his defence team and appeared unrepresented. Hodge Jones & Allen subsequently took over representation on 15 October 2025, shortly before the trial began on 22 October. The prosecution offered no evidence on 27 October and O’Brien was formally acquitted.
The solicitors claimed a full trial fee. The Legal Aid Agency’s Determining Officer concluded that there had been one case throughout and that the October proceedings were the latest in a series of retrials. A 50% retrial fee was therefore allowed.
Hodge Jones & Allen argued that the circumstances amounted to a sufficiently significant break in the proceedings to make the October hearing a new trial for fee purposes. The firm pointed to the change of legal team, the gap of nearly a year between the 2024 and 2025 hearings and the receipt of thousands of pages of previously unserved evidence shortly before the October trial. The October trial judge had also told the LAA that the case should be treated as a new trial.
Costs Judge Leonard rejected the appeal. He found that the proceedings remained one “case” under Schedule 2 of the Criminal Legal Aid (Remuneration) Regulations 2013 because there had been no material change to the indictment.
The judgment explains that the terms “new trial” in Schedule 1 and “retrial” in Schedule 2 describe the same type of further trial following an earlier trial. Whether there has been more than one trial depends, among other things, on whether the court ordered a further trial and whether there was a sufficient break in the temporal and procedural circumstances.
However, where there is only one case, the regulations provide for a single graduated fee structure rather than two full trial fees. Where legal aid is transferred to a new litigator after an initial trial but before a retrial, paragraph 13 of Schedule 2 provides for the new litigator to receive 50% of the full trial fee.
Judge Leonard acknowledged that Hodge Jones & Allen had undertaken substantial work at short notice and that its efforts had assisted the court. He nevertheless said the 2013 Regulations operate mechanistically and that neither he nor another judge had discretion to depart from them.
The appeal was therefore dismissed, leaving the firm entitled to a 50% retrial fee rather than the full trial fee claimed.