A law firm has lost its challenge to the Legal Aid Agency’s decision to pay a retrial fee rather than an entirely new trial fee, despite the later proceedings involving substantial additional technical evidence.
What did the High Court decide?
In R v Kyle Fletcher [2026] EWHC 2588 (SCCO), handed down on 12 October 2026, Costs Judge Whalan dismissed an appeal brought by Newgate Solicitors against the Legal Aid Agency’s determination of a claim under the Litigator’s Graduated Fees Scheme (LGFS).
The dispute concerned the fee payable for a trial held from 5 to 16 January 2026. Newgate argued that the proceedings should be treated as a new case for remuneration purposes. The determining officer had concluded that the hearing fell within the retrial provisions in paragraph 13 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013.
How did the case reach retrial?
Mr Fletcher was originally tried at Sheffield Crown Court between 3 and 30 May 2022 alongside co-defendants. He faced one count alleging conspiracy to supply class A drugs, namely diamorphine and cocaine, between 1 January and 22 May 2020. The jury could not reach a verdict in relation to him.
After further listings and a change in legal representation, a second trial took place in January 2026. The prosecution sought to rely on additional cell-site material and encrypted mobile-phone communications known as EncroChat or VENETIC evidence. The admissibility of that evidence had been considered in a ruling delivered in February 2025. Mr Fletcher was convicted at the later trial and sentenced to six years’ imprisonment.
- Original trial takes place; the jury cannot reach a verdict for Mr Fletcher.
- A ruling permits the prosecution’s disputed VENETIC evidence to be admitted.
- Legal aid representation transfers to Newgate Solicitors, according to the judgment’s background.
- Mr Fletcher is tried again and convicted.
- Costs Judge Whalan dismisses Newgate’s fee appeal.
Why was a retrial fee payable?
The relevant provisions are contained in the Criminal Legal Aid (Remuneration) Regulations 2013, as amended. Paragraph 13 of Schedule 2 addresses retrials and transfers, including how fees are apportioned when a case moves to a new litigator or a retrial is conducted by a new litigator.
The Legal Aid Agency argued that the proceedings remained one case because the central allegation had not materially changed. Although there was additional evidence, a different legal team and a significant interval between the trials, the defendant continued to face the same essential charge.
Newgate’s position was that the January 2026 proceedings had changed so substantially that they should be treated as a new trial for fee purposes. It pointed to the revised indictment, new evidence, different representation and the technical complexity of the later proceedings.
What was the court’s reasoning?
Costs Judge Whalan distinguished between a separate trial and an entirely new “case”. The parties accepted that the January 2026 hearing was a separate trial, not simply a continuation of the May 2022 hearing. The appeal therefore turned on whether the later proceedings constituted a new case under the regulations.
The judge concluded that they did not. Although indictments may be amended as proceedings develop, and counts or co-defendants may be added or removed, the central question was whether the changes meant the defendant faced a genuinely new case. Here, both indictments alleged a single count involving the same offence and the same period of alleged criminality. The “core criminality” remained identical.
“The ‘core criminality’ was identical.”
Costs Judge Whalan’s conclusion on the unchanged substance of the allegation.
The judge acknowledged that Newgate had encountered a different and considerably more complex body of technical and expert evidence at the January 2026 trial. However, the regulations did not give the court discretion to award a new-trial fee on that basis. The appeal was therefore dismissed.
What does the ruling mean for criminal law firms?
The decision highlights the importance of distinguishing the procedural fact of a retrial from the regulatory question of whether the defendant is facing an entirely new case. Changes in evidence, legal representation or the practical conduct of proceedings may not, by themselves, establish that a new case has arisen.
For firms submitting LGFS claims, the substance of the indictment and the continuity of the alleged criminal conduct will be central considerations. Where the same offence is alleged over the same period, a revised indictment or more complex evidential picture may not be enough to secure a new-trial fee.
The judgment also recognises the practical concern for solicitors undertaking substantially more complex work at a retrial. Costs Judge Whalan nevertheless held that the applicable remuneration rules required the retrial-fee outcome in this case.
Frequently asked questions
What was the outcome in R v Kyle Fletcher?
The High Court dismissed Newgate Solicitors’ appeal. The January 2026 hearing attracted the retrial-fee treatment rather than an entirely new trial fee.
Why did Newgate Law seek a new-trial fee?
The firm argued that the later trial involved substantial additional evidence, a different legal team and other changes that made it, in substance, a new case.
Why did the appeal fail?
The defendant faced the same single-count allegation concerning the same offence and the same timeframe. The judge concluded that the core criminality was unchanged.
Which rules applied to the fee dispute?
The appeal concerned the Criminal Legal Aid (Remuneration) Regulations 2013, particularly paragraph 13 of Schedule 2 on retrials and transfers.
Did the court say the later trial was not a separate trial?
No. Both parties accepted that the January 2026 hearing was a separate or new trial. The issue was whether it also amounted to an entirely new “case” for remuneration purposes.