England and Wales Court of Appeal (Criminal Division) Decisions

'P', R v. [2001] EWCA Crim 1728 (23rd July, 2001)

Case No: 00/5799/SZ
Neutral Citation Number: [2001] 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

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) [2001] 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 [1975] 1 QB 73, DPP v Channel 4 Television [1993] 2 All E R 517, Schot and Barclay [1997] 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 [1940] 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) [1982] 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 [1985] 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) [1993] 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 [1994] 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 [2001] 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) [1996] 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 it.
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.
Conclusion
60. For those reasons this appeal is dismissed.