12.—(1) The defendant uplift payable to a litigator is calculated in accordance with the table following this paragraph.
(2) Only one defendant uplift is payable in each case.
(3) In the table following this paragraph, the total fee means—
(a)in a cracked trial or guilty plea where the number of pages of prosecution evidence does not exceed the PPE Cut-off specified in the table following paragraph 5(1), the basic fee specified in the table following paragraph 6(2);
(b)in a trial where the number of pages of prosecution evidence does not exceed the PPE Cut-off specified in the table following paragraph 5(2), the basic fee specified in the table following paragraph 7(2) plus the length of trial proxy specified in the table following paragraph 7(3);
(c)in a cracked trial or guilty plea where the number of pages of prosecution evidence exceeds the PPE Cut-off specified in the table following paragraph 5(1), the final fee, as calculated in accordance with paragraph 8(2); and
(d)in a trial where the number of pages of prosecution evidence exceeds the PPE Cut-off specified in the table following paragraph 5(2), the final fee, as calculated in accordance with paragraph 9(2);
(e)where appropriate, the fee set out in paragraph 11.
(4) In a case where the representation of one defendant would attract a fixed fee under Part 3 and the representation of one or more of the other defendants would attract a graduated fee under Part 2, the total fee is the fee falling within whichever of paragraphs (a) to (d) of sub-paragraph (3) is appropriate.
| Total number of defendants represented by litigator | Percentage uplift to total fee |
|---|---|
| 2-4 | 20% |
| 5+ | 30% |
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.
(2) Where—
(a)a case is transferred to a new litigator; or
(b)a retrial is ordered and a new litigator acts for the assisted person at the retrial,
the fee payable to the original litigator and the new litigator is a percentage of the total fee, calculated in accordance with the table following this paragraph, as appropriate to the circumstances and timing of the retrial, transfer or withdrawal of the section 16 determination.
(3) In sub-paragraph (2), “transfer” includes the making of a section 16 determination in favour of an individual who, immediately before the making of the section 16 determination—
(a)had represented themselves; or
(b)had been represented (otherwise than pursuant to a section 16 determination) by the litigator named in the order,
and for the purposes of that sub-paragraph the litigator is to be treated as a new litigator.
(4) For the purposes of sub-paragraph (2), a case is not transferred to a new litigator where—
(a)a firm of solicitors is named as litigator in the representation order and the solicitor or other appropriately qualified person with responsibility for the case moves to another firm;
(b)a firm of solicitors is named as litigator in the representation order and the firm changes (whether by merger or acquisition or in some other way), but so that the new firm remains closely related to the firm named in the order; or
(c)a solicitor or other appropriately qualified person is named as litigator in the representation order and responsibility for the case is transferred to another solicitor or appropriately qualified person in the same firm or a closely related firm.
(5) For the purposes of sub-paragraph (2), where a case which has been transferred to a new litigator is transferred again, that new litigator—
(a)must be treated as the original litigator, where the transfer takes place at any time before the trial or any retrial;
(b)must be treated as a new litigator, where the transfer takes place during the trial or any retrial; and
(c)must not receive any fee, where the transfer takes place after the trial or any retrial but before the sentencing hearing.
(6) Where a section 16 determination is withdrawn before the case ends, a litigator must receive a percentage of the total fee, in accordance with the table following this paragraph, as appropriate to the circumstances and timing of a transfer.
(7) In the table following this paragraph, the total fee means—
(a)in a cracked trial or guilty plea in a case to which Part 2 applies, where the number of pages of prosecution evidence is less than or equal to the PPE Cut-off specified in the table following paragraph 5(1), the basic fee as set out in the table following paragraph 6(2);
(b)in a trial where the number of pages of prosecution evidence is less than or equal to the PPE Cut-off specified in the table following paragraph 5(2), the basic fee specified in the table following paragraph 7(2) plus the length of trial proxy specified in the table following paragraph 7(3);
(c)in a cracked trial or guilty plea in a case to which Part 2 applies, where the number of pages of prosecution evidence exceeds the PPE Cut-off specified in the table following paragraph 5(1), the final fee as calculated in accordance with paragraph 8(2);
(d)in a trial where the number of pages of prosecution evidence exceeds the PPE Cut-off specified in the table following paragraph 5(2), the final fee, as calculated in accordance with paragraph 9(2);
(e)in a cracked trial or guilty plea in a case to which Part 3 applies, the fixed fee set out in paragraph 11.
(8) Where a case becomes a Very High Cost Case after a section 16 determination has been made and is transferred from the litigator named on the representation order to a new litigator—
(a)the original litigator must be remunerated in accordance with the individual Very High Cost Case contract entered into by that litigator; and
(b)the new litigator must be remunerated in accordance with the individual Very High Cost Case contract entered into by that litigator.
(9) Where a case becomes a Very High Cost Case after a section 16 determination has been made and the section 16 determination is withdrawn before the end of the case, the litigator must be remunerated in accordance with the table following this paragraph as appropriate to the circumstances and timing of the withdrawal.
(10) Sub-paragraph (11) applies where—
(a)the case is a case to which Part 3 would apply if it resulted in a cracked trial or guilty plea; and
(b)at the time the case is transferred to a new litigator in accordance with sub-paragraph (2) it is not known whether the case would result in a cracked trial or guilty plea or whether it would proceed to trial.
(11) Where this sub-paragraph applies—
(a)for the purpose of a claim by the original litigator at the time of the transfer of the case, “total fee” in the table following this paragraph, means the fixed fee set out in paragraph 11;
(b)the original litigator may, if the case proceeds to trial, claim the difference between the payment received at the time of transfer of the case and the payment that would have been due at that time if that payment had been based on the case proceeding to trial.
(12) A litigator may not be treated both as an original litigator and as a new litigator in a case.
| Scenario | Percentage of the total fee | Case type to be used to determine total fee | Claim period |
|---|---|---|---|
| Cracked trial before retrial, where there is no change of litigator | 25% | Cracked trial | |
| Retrial where there is no change of litigator | 25% | Trial | |
| Up to and including plea and case management hearing transfer (original litigator) | 25% | Cracked trial | |
| Up to and including plea and case management hearing transfer – guilty plea (new litigator) | 100% | Guilty plea | |
| Up to and including plea and case management hearing transfer – cracked trial (new litigator) | 100% | Cracked trial | |
| Up to and including plea and case management hearing transfer – trial (new litigator) | 100% | Trial | |
| Before trial transfer (original litigator) | 75% | Cracked trial | |
| Before trial transfer – cracked trial (new litigator) | 100% | Cracked trial | |
| Before trial transfer – trial (new litigator) | 100% | Trial | |
| During trial transfer (original litigator) | 100% | Trial | Claim up to and including the day before the transfer |
| During trial transfer (new litigator) | 50% | Trial | Claim for the full trial length |
| Transfer after trial or guilty plea and before sentencing hearing (original litigator) | 100% | Trial, Cracked trial or Guilty plea as appropriate | Claim for the full trial length, excluding the length of the sentencing hearing |
| Transfer after trial or guilty plea and before sentencing hearing (new litigator) | 10% | Trial | Claim for one day or for the length of the sentencing hearing if longer than one day |
| Transfer before retrial (original litigator) | 25% | Cracked trial | |
| Transfer before cracked retrial (new litigator) | 50% | Cracked trial | |
| Transfer before retrial (new litigator) | 50% | Trial | Claim for the full retrial length |
| Transfer during retrial (original litigator) | 25% | Trial | Claim up to and including the day before the transfer |
| Transfer during retrial (new litigator) | 50% | Trial | Claim for the full retrial length |
| Transfer after retrial or cracked retrial and before sentencing hearing (original litigator) | 25% | Trial or Cracked trial as appropriate | Claim for the full retrial length, excluding the length of the sentencing hearing |
| Transfer after retrial or cracked retrial and before sentencing hearing (new litigator | 10% | Trial | Claim for one day or for the length of the sentencing hearing if longer than one day. |