England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Blofeld)

		Royal Courts of Justice Strand London WC2 Friday 27th April, 2001

1. LORD JUSTICE ALDOUS: I invite Lord Justice Rix to give the first judgment.
2. LORD JUSTICE RIX: This is an appeal against a wasted costs order made by Blofeld J on 1st November 2000 against the firm of Andrews Solicitors.
3. The matter arose in this way. The solicitors' client was a Mr Mach, who had made an application for judicial review in connection with his claim to asylum. In the event Mr Mach and his dependent family chose voluntarily to leave this country and flew off, with tickets which he had paid for himself, to the Czech Republic on 14th October 2000. At that time his application for judicial review was pending. The Treasury Solicitor informed Mr Mach's solicitors of his departure. However, quite reasonably, the solicitors wanted to be assured that the departure had been voluntary rather than involuntary; because, if involuntary, the application could and possibly would be maintained. Indeed, on the day before Mr Mach's and his family's departure he had been due to attend at the airport for involuntary removal.
4. In the result there was some deferment in the withdrawal of Mr Mach's application while the Treasury Solicitor sought to assure Mr Mach's solicitors that his departure had indeed been voluntary. There was an appearance in court on 27th October when Blofeld J adjourned the application and ordered the Treasury Solicitor to make a witness statement regarding the circumstances of Mr Mach's departure. The adjournment was to 1st November. That witness statement had not yet been supplied by the Treasury Solicitor, albeit the Immigration Office at Heathrow Airport was in possession of signed notices of withdrawal of appeal by Mr Mach and his partner at the time of their departure from the airport on 14th October.
5. Late on 30th October, as a result of their own enquiries, Mr Mach's solicitors were able to satisfy themselves that his departure had indeed been voluntary. Accordingly, on the next day, 31st October, they wrote two letters which were sent by fax, one to the court and one to the Treasury Solicitor. The letter to the court stated that they had received confirmation on the previous night that Mr Mach had attended at Heathrow on 14th October with aeroplane tickets. They pointed out that they had not yet received a witness statement from the Treasury Solicitor but had made their own enquiries and that, in the light of the information that they had now received, they asked for the hearing on the next day, 1st November, to be vacated.
6. In their fax to the Treasury Solicitor they also referred to the information received as a result of their own enquiries, pointed out that the Treasury Solicitor had not yet provided a witness statement and made it clear that in the light of Mr Mach's voluntary departure they would therefore be "withdrawing his application for judicial review". The significant thing to notice is that although the letter to the Treasury Solicitor made it clear that the application would be withdrawn in the light of the information received, the letter to the court - because it did not use the word "withdraw" or "withdrawal" but referred to the vacation of the hearing - left the court in some uncertainty as to what was to happen on the next day.
7. As a result of that uncertainty the hearing of 1st November was not vacated. The Treasury Solicitor appears to have been informed of that decision. As a result of that information there was a telephone call between Mr Spiropoulos of the solicitors and a Mrs Smith acting for the Treasury Solicitor on 31st October, and there was also a faxed letter from Mrs Smith to Mr Mach's solicitors. The letter, which preceded the telephone conversation, enclosed the witness statement which had been ordered and asked for the decision as to whether the application was to be pursued. The letter then concluded as follows:

"If the Judge hearing the application on 1 November agrees with my view (and my Counsel's submissions last Friday) that this application should not have been pursued once it was ascertained that Mr Mach had left the country voluntarily and once the legal issue which forms the basis of this application had been conceded by my Client, then I will be asking my Counsel to make an application for wasted costs on the basis of the hearings on 27 October 2000 and 1 November 2000 and the preparation of this witness statement could have been avoided."

8. Subsequent to the faxing of that letter there was the telephone conversation between Mrs Smith and Mr Spiropoulos, in which she informed Mr Spiropoulos that the request to have the hearing vacated had been refused by the court and she also confirmed that she had been in contact with the court and had in fact sent them a copy of the solicitors' letter to her. It was that letter which had made clear that the application was to be withdrawn. So that the court, albeit in the form of a letter transmitted by the Treasury Solicitor rather than directly by Mr Mach's solicitors, was informed about the intention to withdraw the application. Despite it being clear between the two solicitors that Mr Mach's application was to be withdrawn, there was no indication in the telephone conversation that the Treasury Solicitor was going to withdraw his application for a wasted costs order covering, in effect, all the costs from 27th October onwards.
9. In due course the parties therefore appeared before Blofeld J on 1st November and the Treasury Solicitor, by counsel, made its application for a wasted costs order.
10. What the judge did was to decline a wasted costs order in respect of the substance of the Treasury Solicitor's application by declining to make any finding that the solicitors had acted in any way improperly, unreasonably or negligently in respect of the hearing of 27th October or in respect of the request that the Treasury Solicitor make a witness statement. But the judge did find that the solicitors had acted unreasonably - but not, as he made clear, improperly or negligently - in not making it clear to the court in their letter of 31st October that the application was not merely to be vacated but was actually to be withdrawn. That was the ground upon which he made the order at the beginning of his short judgment, albeit subsequently in his judgment he gave an additional reason for making the order, namely that "this matter could have been dealt with by earlier contact with the Treasury Solicitor and there was no need for them to do anything until he had been in touch with them."
11. It is not clear what that additional ground is in respect of. The judge had already found that the solicitors were entitled to receive a witness statement from the Treasury Solicitor and on 31st October, the very next day after receiving their own information about voluntary departure of Mr Mach, the solicitors had informed the Treasury Solicitor that they were satisfied as a result of their own enquiries about Mr Mach's voluntary departure.
12. In these circumstances, Mr Umezuruike (who has been very helpful) submits that even if it was justifiable for the judge to have found that the solicitor had acted in some way unreasonably, nevertheless no loss had been caused to the Treasury Solicitor by reason of the failure to avoid a hearing on 1st November because, after all, the Treasury Solicitor had made it clear that at that hearing it was intended to make an application for a wasted costs order, the greater part of which was in any event denied.
13. It is quite clear that, whatever the conduct of a solicitor, in the context of this jurisdiction there is need for the causation of loss. Thus section 53.4 of the Practice Direction to CPR Rule 48.7 states:

"It is appropriate for the court to make a wasted costs order against a legal representative, only if:

(1) the legal representative has acted improperly, unreasonably or negligently;

(2) his conduct has caused a party to incur unnecessary costs, and

(3) it is just in all the circumstances to order him to compensate that party for the whole or part of those costs."

14. The Treasury Solicitor has not appeared on this appeal on the basis that, whatever this court's order, no order for costs would be made against it, and the appellants have given an undertaking to the Treasury Solicitor accordingly. So there has been no representation from the Treasury Solicitor here today and no submissions on his behalf.
15. I am satisfied that whatever else might be said – and Mr Umezuruike has made submissions on the question of unreasonableness and on the ultimate question of the court's discretion – no loss was caused to the Treasury Solicitor by the failure of the solicitors' letter to make clear that the application was being withdrawn, or indeed by any conduct on the part of the solicitors following their learning late on 30th October of their client's voluntary departure.
16. In these circumstances, I would allow this appeal.
17. LORD JUSTICE ALDOUS: I agree.
ORDER: Appeal allowed; that part of the order of 1st November 2000 that ordered that there be a wasted costs order in the sum of £400 against the claimant's solicitor set aside; no order as to the costs of the appeal. (Order not part of approved judgment)