Case No: 00/5799/SZ
Neutral Citation Number:  EWCA Crim 1728
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 23rd July, 2001
In re `P'
"I consider it absolutely disgraceful that you have put forward your client to this jury as a woman of good character, in direct contra-distinction to Mr Mooney as having convictions. That is dishonest."
9. The appellant's immediate response was -
"I have not put her of good character."
The judge then continued -
"You have. You have directly compared her, as somebody with no more than a banning order, with Mr Mooney. You have directly asked the jury to compare, in terms of credit, Mr Mooney with his convictions, and your client with nothing more than a banning order. You said it at least three times. I did not interfere because I could not do so without aborting the trial, but I do consider it dishonest. I consider it unprofessional conduct and I find it extremely concerning."
10. The appellant then said that it was not his intention to do so, and the judge said that she had noted it and was appalled and surprised that any member of the bar would do such a thing. At that point the appellant said -
"I apologise unreservedly. It was not my intention at all to do that."
One of the points taken by Mr Rees QC, who has appeared on behalf of the
appellant before us, is that no weight should be attached to that implied
admission by an advocate taken somewhat by surprise whose initial anxiety, in
the interests of his client, would no doubt be to placate the judge. It seems
to us that in relation to what was said by the appellant on 4th
August 2000, if it stood alone, there would be force in Mr Rees' submission.
Returning to the events of 4th August, prosecuting counsel then said
that his recollection was the same as that of the judge. "It was" as he put it
"at least three times". Prosecuting counsel then raised other matters, the
appellant repeated his apology, and the judge then decided, sensibly, that
everyone needed to reflect over the weekend as to what to do next.
Monday 7th August
11. The appellant took advice over the weekend, and on Monday 7th August he told the judge that having looked again at his notes and re-considered what he had said he recalled saying to the jury that one swallow does not make a summer, and that the banning order of the defendant "being introduced by the Crown cuts both ways". It impinged on the credit of Mooney because he had said that she was banned before 29th October 1999, and he pointed out that the prosecution had been able to obtain evidence in relation to that banning order "within hours" whereas it had taken much longer than that to obtain and release to the defence information as to Mooney's previous convictions. Those he said were the only two occasions he remembered referring to the banning order. The judge then said -
"Well, perhaps I ought to tell you what I noted down at the time. You said that prosecution puts faith on Mr Mooney as a witness of truth but Mr Mooney has previous convictions. You asked them to compare whether, par for par, a banning order is the same as previous convictions. You said: `where is the parity?' Now, that to me is inviting the jury, quite clearly, to draw a comparison between a person with no more than a banning order and a person with previous convictions."
A copy of the actual manuscript notes made by the judge during the
appellant's final speech is now available.
12. Having told the appellant of her note, the judge then asked prosecuting counsel if what she had said accorded with his recollection, or with any note which he had made. He said that it did accord with his recollection. He said that he wrote down the word `Character' "when it came in, and I have put a box around it on four lines (sic) and that is every time that I recall character being directly referred to." Again, a photo copy of counsel's manuscript note is before us, and it shows the word character with what appears to be a two line box around each side of it.
The judge then said:
"I was quite clear that it happened three times, where a direct comparison had been drawn between a person with convictions and a person with no more than a banning order."
13. Prosecuting counsel confirmed that accorded with his recollection, and said that the appellant said on more than one occasion -
"Members of the jury, compare, if you will, the banning order against someone with previous convictions ... put that into the melting pot - "
Or words to that effect.
14. The judge then indicated to the appellant that what had just been discussed was what had caused her to make the strong remarks to him on the previous Friday, and the appellant said -
"I do not recall that part of the `par for par'."
15. He went on to say that he would not deliberately seek to mislead a jury, and if it was done he had not done it intentionally, he did not realise it had occurred, and he apologised unreservedly for it. He the raised the question of whether the defendant could have a fair trial. Other matters were discussed, and the appellant then said -
"I remember two occasions - your Honour has now said there is a third occasion - about putting faith on Mr Mooney and par for par value. May I say, it was not done deliberately. It was done, if I can put it this way, at the spur of the moment without a moments thought."
Pausing there, it is, as it seems to us, important to note that on the Monday, after a weekend considering the position and taking advice, the appellant was able to recall two occasions when something was said by him about putting faith on Mr Mooney and par for par value. The appellant continued -
"I thought I had to deal with the banning order in the two ways I thought appropriate... unfortunately it had, or it may have had, the inference or impact that she is a person of good character."
The judge indicated her readiness to accept that it was not done
16. The prosecution then applied to introduce evidence of the defendant's previous convictions. The appellant resisted that, and submitted that a preferable course would be to discharge the jury. The judge's conclusion was that she must either let the previous convictions of the defendant go before the jury or abort the trial and in fairness to the defendant she chose the latter course. She said -
"It would not be fair to the defendant for her to suffer as a result of something which has been done without instructions by her counsel."
17. After discharging the jury the judge informed the appellant that there would have to be a hearing in relation to wasted costs, and she asked if the appellant objected to her presiding over that hearing. He said he did, and the judge then said she would have to consider that. The appellant asked the judge if she would say again exactly what he said to the jury, and the judge then said -
"I have written in my notebook:
`It is quite wrong for defence counsel to say that the prosecution puts faith on Mr Mooney as a witness of truth but he has previous convictions. This raises a clear implication that the defendant has no previous convictions. Defence counsel is asking the jury to compare, par for par, a banning order against previous convictions.'
"Where is the parity?"
"Convictions against banning order"
That quote is something that I believe that you actually said in those terms. That is all I have got in my notebook, but my clear recollection is that you drew the comparison three times at least."
18. The wording in the notebook is a little abbreviated, but no one has
suggested that the judge's interpretation of her notebook is other than
19. Nothing seems to turn on the notes used by the appellant when making his final speech, although they have been disclosed. On 4th August 2000 his instructing solicitors were represented by a clerk, part of whose note reads -
"Did not discovered 2nd Aug - previous convictions - prosecution did not anything about B. Mooney's previous conv. Mr Miller chairman of pub watch. (Defendant) got banned - people have diff. motives"
20. It is not suggested that any other part of the clerk's note is
21. On 17th August 2000 the appellant was advised by fax that Judge Wakefield proposed to conduct the wasted costs hearing on 23rd August, and that on that occasion she would receive representations as to whether she should preside, and as to whether such an order should be made. The grounds on which such an order might be made were set out in an enclosure. Those grounds summarise what is set out earlier in this judgment, and include this passage -
"In all the Judge recollects at least three occasions when, in the course of the speech, (the appellant) appeared to draw a direct contrast between the victim and the defendant (on the basis of a comparison between his previous convictions and her banning order)."
23rd August - Directions and Ruling
22. On 23rd August 2000 there was a directions hearing, and junior counsel, Mr Harrison, represented the appellant. He invited the judge to consider the note made by the appellant for use when making his speech to the jury, and, according the transcript, neither then nor at a later stage was any further submission made to the judge that she should not decide the issue of wasted costs. Mr Harrison accepted that nowhere in the appellant's note did there appear the words "par for par" or "where is the parity?" which had been noted by the judge. Mr Harrison said -
"It is certainly (the appellant's) case that they are words that he would have been extremely unlikely to have used and certainly doesn't recall using them."
23. Two things are worth noting about that observation. First, however
"extremely unlikely", on Monday 7th August the appellant had in fact
recalled using the words "par for par"; in any event there is no outright
denial that the words were used, and secondly there is no attempt to suggest
that if they were used they could have been used in any other context, or with
any other meaning than that which the judge ascribed to them.
24. What Mr Harrison did submit was that in the absence of a verbatim record of the appellant's final speech, made by tape or shorthand note, the judge should not pursue any further the question of wasted costs. The judge rejected that submission. As she pointed out, she raised the matter with the appellant as soon as he had finished his speech. At that time it was very clear in her mind what had been said "and the impression that had been given". She had also noted two particular phrases which she considered fundamental to the complaint, which was supported by prosecuting counsel. In those circumstances although it was regrettable that there was no "objective record", it was fair to go ahead.
14th September - Wasted costs hearing
25. The hearing took place on 14th September 2000 when the appellant was represented by Mr Rees. No evidence was called. By that time prosecuting counsel, Mr Giuliani, had provided a statement one or two aspects of which Mr Rees did not accept, but although Mr Giuliani was available Mr Rees did not seek to cross examine him, nor did he produce any statement from the appellant.
26. Mr Rees submitted that the way in which character evidence had emerged at the trial made it difficult for the appellant when making his final speech to discharge his duty to his client without saying anything which might be open to criticism. As the judge pointed out, the problem could easily have been surmounted -
"He is entitled to say, can you believe Mr Mooney, a man with these previous convictions, and he also entitled to say, the fact that my client has a Banning Order should not detract from your looking at her evidence in the round, in considering whether she is telling you the truth and so on. But you must not I would say put the two together and say, where is the parity, the complainant has convictions, the defendant has a Banning Order, par for par, who do you believe, and that is what I am afraid that (the appellant) did, and that is the complaint."
27. Mr Rees submitted, and the judge accepted, that she should apply the
criminal standard of proof. Before us it has been submitted by Mr David Perry,
for the Lord Chancellor's Department, that the decision in relation to the
standard of proof was unnecessary and inappropriate.
28. With the assistance of the judge Mr Rees carefully explored the judge's recollection and the interpretation properly to be given to her note. As she said, her note referred to three occasions -
(1) When the appellant said "the prosecution are putting forward Mr Mooney as a witness of truth but he has previous convictions."
(2) When the jury was asked to compare par for par a person with a Banning Order and a person with previous convictions.
(3) When the appellant said `where is the parity, convictions against Banning Order?
29. As the judge accepted, the first occasion, standing alone, could be
regarded as innocuous but it alerted her to the possibility of a problem. The
three occasions occurred quite close together, in a contained part of the
speech, and formed overall something which seemed to the judge to be causing,
"a very misleading impression".
30. Mr Rees submitted that perhaps the judge might have interrupted counsel's speech and given a warning, but, as the judge pointed out, it is rare indeed for a judge to interrupt, and if her recollection is right she could only have justifiably interrupted after the damage was done. The first occasion, as she noted and recalled it, was not such as to warrant an interruption.
31. Right at the end of his submissions Mr Rees indicated that the appellant denies having "uttered the precise words which it is believed he did". That was the first occasion on which the appellant can be seen to have denied in terms using the words recorded in the judge's note.
32. In her ruling the judge said -
"I have a clear recollection, supported by my contemporaneous note that (the appellant) did, on more than one occasion, invite the jury when considering who to believe, between the alleged victim, Mr Mooney, and the defendant, to compare them in terms of the former having convictions, and the latter having no more than a Banning Order. I took the matter up with (the appellant) immediately the jury had left court, following his speech, and in the exchanges the following Monday morning I told (the appellant) of the words I had noted, in particular the phrases `where is the parity' and `par for par' both of which he had used when making direct comparisons between the two witnesses. On the occasion of each of those exchanges it appeared that the prosecuting counsel agreed, that such comparisons and words had been used, and a subsequent statement of prosecuting counsel does not seek to resile in any way from that position. (The appellant) has from the first maintained that it was not his intention to mislead the jury. He has also said that he has no recollection of using the words, or direct comparisons I refer to above. I now accept that (the appellant) did not deliberately mislead the jury. However I am satisfied, necessarily having put my own recollection into the balance, that he did do so having made the direct comparisons and having used the expressions I have referred to. In that he acted negligently, it being a failure to act with the competence reasonably to be expected from an ordinary member of the profession."
33. As to causation, the judge said -
"Given the misleading impression caused, and the impossibility of correcting it without making the jury aware at that very late stage of the defendant's previous convictions, I considered at the time, and still consider, that there was no other course fair to the defendant, but to discharge the jury from giving a verdict. Therefore I am satisfied that the conduct of (the appellant) did cause the three days of the trial's costs to be wasted."
Grounds of Appeal
34. There are in reality two grounds of appeal. - The first is that because if she proceeded she would have to act as both witness and tribunal in respect of the disputed issues of fact the judge should have disqualified herself from acting as judge for the proceedings in relation to wasted costs. The second ground of appeal is that no reasonable tribunal, properly directing itself, could have found negligence proved to the required standard, namely the criminal standard of proof.
Ground 1: Should the judge have disqualified herself?
35. Mr Rees submits, rightly, that, quite apart from any sum that he may be ordered to pay, an order made against a barrister in proceedings in respect of wasted costs affects the barrister's reputation and may also damage his prospects of advancement in his profession. The procedure for determining liability therefore needs to be fair, and in accordance with natural justice, because it can have significant results.
36. Mr Rees further submits that, not in every case, but where liability turns on a disputed issue of fact in respect of which the judge is a principal witness against the barrister, natural justice requires that the critical decision, if it is to be made at all, should be made by an independent and impartial tribunal, which in reality means by another judge. There is nothing in the relevant statute, namely section 19A of the Prosecution of Offences Act 1985, or in the regulations made thereunder, to prevent that course, and if it is not adopted there is a real danger of bias, especially if, as here, the judge has at an early stage, and without qualification, expressed strong views in relation to the conduct of the barrister. Taking into account the European Convention on Human Rights, and the relevant jurisprudence it is common ground that the test of bias now is that set out by Lord Phillips MR in re Medicaments and Related Classes of Goods (No 2)  1 WLR 700 when he said at 727 A -
"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
37. Mr Rees goes on to submit that assistance can be gained from decisions
in relation to contempt of court where, as with proceedings in relation to
wasted costs, there is no defined procedure, the judge can appear to be in the
role of prosecutor, and the summary procedures can result in a heavy penalty.
On many occasions appellate courts have indicated that the judge initially
involved should so far as possible distance himself or herself from the
contempt proceedings (see Balogh v St Albans Crown Court  1 QB 73,
DPP v Channel 4 Television  2 All E R 517, Schot and
Barclay  2 Cr App R 383 and the Practice Direction to Magistrates
Courts in relation to contempt proceedings issued by the Lord Chief Justice
on 5th June 2001).
38. In our judgment the answer to the first ground of appeal is to be found in a number of authorities dealing not with contempt, which is a criminal offence punishable with imprisonment, but with the jurisdiction with which we are concerned. The first authority is Myers v Elman  2 AC 282, where there had been inadequate discovery and the issue arose as to whether the jurisdiction to order payment of costs could be exercised against a solicitor in respect of the failings of his managing clerk. Having referred to the jurisdiction to strike off the roll or to suspend, Viscount Maughan said at 289 -
"The jurisdiction as to costs is quite different. Misconduct or default or negligence in the course of the proceedings is in some cases sufficient to justify an order. The primary object of the Court is not to punish the solicitor, but to protect the clients who have suffered, and to indemnify the party who has been injured."
39. Similarly Lord Wright said at 318 -
"... alongside the jurisdiction to strike off the Roll or to suspend, there existed in the Court the jurisdiction to punish a solicitor or attorney by ordering him to pay costs, sometimes the costs of his own client, and sometimes those of the opposite party, sometimes, it may be, of both. The ground of such an order was that the solicitor had been guilty of professional misconduct (as it is generally called) not, however, of so serious a character as to justify striking him off the Roll or suspending him. This was a summary jurisdiction exercised by the Court which had tried the case in the course of which the misconduct was committed. ..... Though the proceedings were penal, no stereotyped form was followed. Hence now the complaint is not treated like a charge in an indictment or even as requiring the particularity of a pleading in a civil action. All that is necessary is that the judge should see that the solicitor has full and sufficient notice of what is the complaint made against him and full and sufficient opportunity of answering it. .... The underlying principle is that the Court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally ... The matter complained of need not be criminal;. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor's duty to ascertain with accuracy may suffice.... The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realise his duty to aid in promoting in his own sphere the cause of justice. This summary procedure may often be invoked to save the expense of an action. Thus it may in proper cases take the place of an action for negligence ... The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of."
40. In R and T.Thew Limited v Reeves (No 2)  1 QB 1283 a solicitor made a mistake in relation to a Legal Aid application. Lord Denning MR made the same distinction that had been made in Myers between the punitive and compensatory jurisdiction of the court, and at 1286 D he said -
"Our old books all show that if a solicitor on one side has done something wrong - which has caused useless costs to the other party - he could be ordered personally to compensate the other party. ... It was a summary jurisdiction without pleadings. All that was necessary was notice telling the solicitor what was alleged against him and giving him an opportunity of answering it ... This jurisdiction still exists in full force. As a rule the party - who has incurred useless costs - will himself make the application. But this is not invariable. Sometimes the court may act of its own motion. .. This compensatory jurisdiction still contains, however, a disciplinary slant. .. The cases show that it is not available in cases of mistake, error of judgment or mere negligence. It is only available where the conduct of the solicitor is inexcusable and such as to merit reproof."
41. In Bahai v Rashidian  1 WLR 1337 the trial judge when giving judgment had been very critical of the plaintiff's solicitor, who had given evidence in support of his client's claim. The judge had gone so far as to draw his criticisms to the attention of the Law Society. When the defendants sought an order that the plaintiff's solicitor be held jointly liable with his client for the defendant's costs the plaintiff's solicitor applied for an order that the issue of his liability for costs be transferred to a different judge. The trial judge refused to make that order, and the Court of Appeal dismissed the appeal. Sir John Donaldson MR said at 1342 G -
"I accept that it must always be open to a judge to decline to proceed further with the hearing of any matter on the grounds that he is personally embarrassed by, for example, an appearance of bias. Subject to that, I have no doubt that it was the duty of (the trial judge) having heard and determined the issues in the action, himself to determine all applications as to the costs of the action... the fact that a judge has determined the issues in the action and in so doing has expressed views on the conduct of the parties and of the witnesses, neither constitutes bias nor the appearance of bias in relation to subsequent applications in the action.... If the application can only be sustained by proof of serious misconduct or crime, the standard of proof should be higher than would otherwise be the case, but, subject to that, the application should be dealt with the same way as would any other application for costs against a solicitor."
42. Parker L J dissented as to the result on the particular facts of the case, but agreed as to the principle, saying at 1343 G -
"Save in exceptional circumstances, it will be for the judge, who heard the case ... to determine the matter on a subsequent hearing .. there can be no doubt of this, the judge is dealing with the costs of an action which he has himself heard."
43. Balcombe L J agreed with Sir John Donaldson, saying at 1346 D
"I accept that the judge has a discretion to direct that the application be heard by another judge, but the discretion is a judicial one, to be exercised in accordance with settled principles, of which one is undoubtedly that the application should be tried by the judge who heard the action unless there are compelling reasons to the contrary. ... A judge properly exercising his judicial function, e.g. by criticising the conduct of a party's solicitor in the course of his judgment on a matter which he considers relevant to his decision, cannot by that process said to be biased. Bias is the antithesis of the proper exercise of a judicial function. .. If such an application has to be heard by another judge, the procedure will lose its summary character. It will become even more expensive and time consuming than it is already, and the defendants are justified in their contention that the remedy of the party damnified by the solicitor's misconduct will become illusory."
44. The three cases which we have cited thus far concern solicitors because until relatively recently orders could not be made against barristers, but the message is clear, namely -
(1) the primary object is not to punish, but to compensate, albeit as the order is sought against a non-party it can from that perspective be regarded as penal.
(2) The jurisdiction is a summary jurisdiction to be exercised by the court which has "tried the case in the course of which the misconduct was committed."
(3) Fairness is assured if the lawyer alleged to be at fault has sufficient notice of the complaint made against him, and a proper opportunity to respond to it.
(4) Because of the penal element a mere mistake is not sufficient to justify an order. There must be a more serious error.
(5) Although the trial judge can decline to consider an application in respect of costs for example on the ground that he or she is personally embarrassed by an appearance of bias, it will only be in exceptional circumstances that it will be appropriate to pass the matter to another judge, and the fact that, in the proper exercise of his judicial functions, a judge has expressed views in relation to the conduct of a lawyer against whom an order is sought does not of itself normally constitute bias or the appearance of bias so as to necessitate a transfer.
(6) If the allegation is one of serious misconduct or crime the standard of proof will be higher, but otherwise it will be the normal civil standard of proof.
45. In Re a Barrister (Wasted Costs Order) (No 1 of 1991)  QB 293 the court set out at 301 G a three stage test to be adopted when an order is sought against a barrister, namely -
"(1) Has there been an improper, unreasonable or negligent act or omission?
(2) As a result have any costs been incurred by a party?
(3) Should the court exercise its discretion to order the lawyer to meet the whole or any part of the relevant costs?"
46. Only if all three questions are answered in the affirmative will an order be made. That three stage test was approved by the Court of Appeal in Ridehalgh v Horsefield  Ch 205, and was adopted by the trial judge in the present case. In Ridehalgh Sir Thomas Bingham MR considered the definition of wasted costs which is to be found in the statute, and said at 232 E that -
"Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code."
As to negligent conduct, he said at 233 C -
" `negligent' should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession. .... acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would given or done or omitted to do."
At 233 E he said that the words used to describe conduct which can give rise to wasted costs overlap -
"We do not think any sharp differentiation between these expressions is useful or necessary or intended."
47. Quite recently, in Harley v McDonald  2WLR 1749 the Privy Council considered an appeal against a costs order made in New Zealand under the inherent jurisdiction of the court. At 1768 D Lord Hope described such orders as both compensatory and punitive -
"A costs order against one of its officers is a sanction imposed by the court. The inherent jurisdiction enables the court to design its sanction for a breach of duty in a way that will enable it to provide compensation for the disadvantaged litigant. But a costs order is also punitive. Although it may be expressed in terms which are compensatory, its purpose is to punish the offending practitioner for a failure to fulfil his duty to the court."
After referring to Myers he continued at 1768 F -
"The jurisdiction is compensatory in that the court directs its attention to costs that would not have been incurred but for the failure in duty. It is punitive in that the order is directed against the practitioner personally, not the party to the litigation who would otherwise have had to pay the costs. As a general rule allegations of breach of duty relating to the conduct of the case by a barrister or solicitor with a view to the making of a costs order should be confined strictly to questions which are apt for summary disposal by the court. Failures to appear, conduct which lead to an otherwise avoidable step in the proceedings or the prolongation of a hearing by gross repetition or extreme slowness in the presentation of evidence or argument are typical examples. The factual basis for the exercise of the jurisdiction in such circumstances is likely to be found in facts which are within judicial knowledge because the relevant events took place in court or are facts that can easily be verified."
48. It is difficult to envisage an advocate accepting that he has been
grossly repetitive, or extremely slow in the presentation of evidence or
argument, but clearly Lord Hope did not envisage such criticisms being referred
for investigation by a different judge.
49. All of the authorities leave room for the exceptional case, such as In re Freudiana Holdings Ltd The Times 4th December 1995, where the Court of Appeal upheld the trial judge's decision that a wasted costs application would require a full scale re-litigation of the issues in the original trial and therefore should not proceed, but that is not this case.
50. On behalf of the Lord Chancellor's Department Mr Perry submitted, and we accept, that in almost every case the trial judge should be the judge who deals with any application for an order in respect of wasted costs. There is a punitive element in the jurisdiction, but in reality the jurisdiction is closer to that exercised in civil proceedings under CPR 44.3 where the court is entitled to have regard to "the conduct of all the parties" than it is to the jurisdiction in respect of contempt of court.
51. Bearing in mind that this is a summary jurisdiction, to be exercised by the trial judge as part and parcel of her duty to exercise proper control over and to do justice in the proceedings taking place before her, we cannot see how any fair minded and informed observer would conclude that there was a real possibility that the tribunal was biased simply because the judge was critical of what she had just heard and recorded, and because the advocate challenged seemed reluctant to admit that that was what he had said. In the present case the appellant was understandably adamant that he did not intend to mislead, but at least by the 7th August he seemed able to recall having used one of the phrases the judge had recorded, so it can hardly even be said that there was stark and fundamental issue as to what he had said.
52. We would emphasise, as Mr Perry emphasises, that the trial judge was ideally placed to assess the appellant's conduct in the trial, and the effect of his speech at the time it was delivered. The whole tenor of the authorities is supportive of her decision in the exercise of her discretion to retain jurisdiction, and to proceed as she did. Furthermore, in our judgment, whilst it is obviously important for an advocate who is criticised to have proper notification of the complaints made against him, and a proper opportunity to respond to them before a tribunal ready and willing to give him a fair hearing, it is also important, in the public interest and in the interests of the legal profession, to have a wasted costs procedure which is swift, economical and effective. That means that it must retain its summary form. Otherwise it would justifiably be said that those who default can easily escape censure by calling for a procedure so elaborate and expensive as to be unworkable.
53. We therefore conclude that there is no substance in the first ground of appeal. We have reached that conclusion as a result of a full consideration of the merits in the light of the arguments presented to us, but, particularly having regard to the letter of 17th August 2000, we consider that ground 1 should have been properly argued before the trial judge before being raised in this court.
Ground 2: Insufficent evidence
54. We have already cited what was said by Sir John Donaldson MR in Bahai as to the standard of proof, and Mr Perry invited our attention to the speech of Lord Nicholls in Re H (Minors)  AC 563, where he said at 586 C -
"Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance probability, usually referred to as the balance of probability. This is the established general principle."
He then referred to contempt of court applications as an exception, and continued -
"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in a particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence ... Built into the preponderance of probability standards is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on the balance, the event occurred."
55. In our judgment that is the approach to be adopted by a judge
considering whether to make an order for wasted costs. There is for this
purpose no analogy with proceedings for contempt of court, and the criminal
standard of proof should not be used. Of course the fact that it was used in
this case was of benefit to the appellant, and Mr Rees makes no complaint about
56. Given then that the judge was the appropriate tribunal, was she entitled to conclude, as she did, that "on more than one occasion" the appellant invited the jury, when considering who to believe as between Mr Mooney and the defendant, "to compare them in terms of the former having convictions and the latter having no more than a Banning Order"? Mr Rees has drawn our attention to the fact that because of the state of the evidence counsel had to choose his words with care if he was to discharge his duty to his client but avoid making a misleading comparison. That is true, but, as the judge pointed out when the same argument was put to her, the problem is one which in some form is frequently encountered by both advocates and judges, and it is not difficult to overcome. Mr Rees goes on to submit that because of the problem, and because the appellant chose to compare the speed of the prosecution's production of details of Mooney's previous convictions with the speed of the investigation into the Banning Order, there was at least a possibility that the appellant's words were misunderstood. Mr Rees goes on to emphasise that there is no transcript of what was said, and that, he submits, in a situation like this should really be regarded as conclusive in favour of the appellant. The contemporaneous notes made by the judge and prosecuting counsel were scanty, and Mr Rees submits that there have been variations in their accounts of what was said. As indicated above, the judge originally accused the appellant of transgressing at least three times, but when the matter was fully investigated on 14th September 2000 she accepted that what he said on the first of the three occasions recorded by her could be regarded if it stood alone, as being innocuous. Either in the letter which set out the complaint or in the course of argument on 14th September the judge misinterpreted her own note of what the appellant said on the first occasion. Either it was "the prosecution puts faith in Brian Mooney" or "the prosecution are putting forward Mr Mooney ..". Mr Rees rightly does not attach much weight to that discrepancy because it is clear from the photocopy that the original note is abbreviated, and not easy to read. Furthermore there is no significant difference between the two interpretations. Turning to prosecuting counsel Mr Rees points out that he asserted that the appellant transgressed on four occasions, but he recorded only the word character.
57. In our judgment the evidence in favour of the judge's conclusion as to what the appellant did was overwhelming. She was alerted by what the appellant said on the first occasion, and she then recorded the significant words used on the second and third occasions, words which in the circumstances seem incapable of having an innocuous meaning. She then, within minutes, whilst the matter was plainly fresh in her mind, put her concerns forcefully to the appellant, and she did not even have to seek confirmation of her recollection from prosecuting counsel because he was already seeking to introduce evidence of the defendant's convictions on the basis that the appellant had transgressed in the way complained of by the judge. After the weekend the appellant, having taken advice, was able to recall two occasions when he spoke about putting faith on Mooney and par for par value. It seems that neither was recorded by his solicitor's clerk, and he told the judge that what he had said was done on the spur of the moment without a moment's thought.
58. The next question to be considered is the gravity of the transgression. Was it, as the judge found, a failure to act with the competence reasonably to be expected of an ordinary member of the profession? That was the right test, as can be seen from what was said by Sir Thomas Bingham MR in Ridehalgh, and, as it seems to us, the judge was fully entitled to find that it was satisfied. The state of the evidence was such that the appellant did have a problem, but it was a problem which with a bit of care a competent advocate could have overcome, and, as his notes make clear, the appellant was not under pressure. He had time to prepare copious notes for his final speech. It was more than a mere mistake. Mr Rees submits that the judge's conclusion as to the gravity of the transgression is undermined by what she said when fixing the sum to be paid, when she accepted Mr Rees' own submission that there should some amelioration to allow for the forensic difficulty which the appellant faced. In our judgment that concession, whether or not it was justified, does not in any way undermine the judge's earlier conclusion as to the gravity of the transgression.
59. Mr Rees accepts that if the judge was right her perception of what the appellant had said and done her decision to discharge the jury cannot be impugned. It therefore follows that although in her judgment the judge expressly accepted that the appellant did not deliberately mislead the jury his negligent actions directly caused the waste of costs which was inevitable when the jury was discharged, and we cannot discern any reason why he should not have been ordered as he was to pay a substantial proportion of those costs.
60. For those reasons this appeal is dismissed.