ON APPEAL FROM Wood Green Crown Court
His Honour Judge PAWLAK
Strand, London, WC2A 2LL
B e f o r e :
MR. JUSTICE WILKIE
MR. JUSTICE OPENSHAW
| In the matter of a Wasted Costs Order made against
|Joseph HILL & Company, Solicitors
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Michael Bromley-Martin QC & Mr. Giles Cockings for the Appellants
Hearing date: 13th May 2013
Crown Copyright ©
The Honourable Mr. Justice OPENSHAW :
The statutory jurisdiction is to be found in section 19A of the Prosecution of Offences Act 1985: 'In any criminal proceedings … the Crown Court … may … order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined …'
By section 19A (3): 'wasted costs' means any costs incurred by a party (a) as a result of any improper, unreasonable or negligent act or omission on the part of any representative or any employee of a representative'.
iv. A three-stage test or approach is recommended when a wasted costs order is contemplated:
(a). Has there been an improper, unreasonable or negligent act or omission?
(b). As a result have any costs been incurred by a party?
(c). If the answers to (a) & (b) are yes, should the court exercise its discretion to disallow or order the representative to meet the whole or any part of the relevant costs, and if so what specific sum is involved?
vi. The judge must specify the sum to be allowed or ordered. Alternatively the relevant available procedure should be substituted should it be impossible to fix the sum.
vii. 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.
x. Because of the penal element a mere mistake is not sufficient to justify an order, there must be a more serious error
xii. The normal civil standard of proof applies but if the allegation is one of serious misconduct or crime clear evidence will be required to meet that standard.
"Improper, unreasonable or negligent: … In our view the meaning of these expressions is not open to serious doubt.
"Improper" means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to 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.
"Unreasonable" also means what it has been understood to mean in this context for at least half a century. … But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's judgment, but it is not unreasonable.
[W]e are clear that "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. In adopting an untechnical approach to the meaning of negligence in this context, we would however wish firmly to discountenance any suggestion that an applicant for a wasted costs order under this head need prove anything less than he would have to prove in an action for negligence: "advice, acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would have given or done or omitted to do;" an error "such as no reasonably well-informed and competent member of that profession could have made:" … We were invited to give the three adjectives (improper, unreasonable and negligent) specific, self-contained meanings, so as to avoid overlap between the three. We do not read these very familiar expressions in that way. Conduct which is unreasonable may also be improper, and conduct which is negligent will very frequently be (if it is not by definition) unreasonable. We do not think any sharp differentiation between these expressions is useful or necessary or intended.'
Section 5 (5) of the Criminal Procedure and Investigations Act 1996 provides that: '… the accused must give a defence statement to the court and to the prosecutor'.
Section 6A 2 (a) (added by section 33(2) of the Criminal Justice Act 2003), provides that: 'A defence statement that discloses an alibi must give particulars of it, including: (a) the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given'.