England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice The Strand London
		24 January 2001

1. THE LORD CHIEF JUSTICE: This is an application for judicial review in respect of an order for costs made against the Commissioners of Customs and Excise by His Honour Judge Mayor QC at Leicester Crown Court on 18 February 2000, in relation to proceedings brought by the Commissioners of Customs and Excise against a Mr Watchorn and a Mr Wilson. The order for costs was made under section 19(1) of the Prosecution of Offences Act 1985 and the Costs in Criminal Cases (General) Regulations 1986. The relevant part of Regulation 3 reads as follows:

"(1) Subject to the provisions of this regulation, where at any time during criminal proceedings --

...

(b) the Crown Court is satisfied that costs have been incurred in respect of the proceedings by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, the court may, after hearing the parties, order that all or part of the costs so incurred by that party shall be paid to him by that other party.

....

(3) An order made under paragraph (1) shall specify the amount of costs to be paid in pursuance of the order."

2. The background facts to the making of that order were as follows. On 6 August 1999, Mr Watchorn and Mr Wilson were committed to stand trial at the Crown Court in respect of charges under section 170(2) of the Customs and Excise Management Act 1979, and of one charge of conspiracy to cheat the public revenue. The details of the different charges are not relevant for present purposes, but count 1 gives a flavour of the allegations which were being made by the Commissioners of Customs and Excise. Each defendant was charged on count 1 as follows:

"Being knowingly concerned in the fraudulent evasion of the duty chargeable on goods, contrary to section 170(2) of the Customs and Excise Management Act 1979.

PARTICULARS OF OFFENCE

Robin Watchorn and Stephen John Wilson between the 2nd October 1995 and the 6th January 1996 were in relation to certain goods, namely a quantity of ammonium nitrate on board the vessel 'Ivan Silver', knowingly concerned in the fraudulent evasion of Anti-Dumping Duty chargeable thereon by virtue of Council Regulation (EC) No 2022/95, by causing entries to be submitted to Her Majesty's Customs falsely declaring the Customs value of the goods, by submitting commercial invoices falsely purporting to show the price actually paid for the goods when sold for export to have been £84.92 per metric tonne and by falsely completing a Declaration of Particulars relating to Customs Value by stating that the buyer and seller were not related persons."

3. That was a charge alleging dishonest and fraudulent conduct on the part of the defendants.
4. The charges against the defendants arose out of allegations that they made various false statements. It was alleged by the Customs that the defendants had overstated the price that they had had to pay for the goods.
5. On 20 October 1999, an application to fix a date for a preliminary argument on an application to stay came before His Honour Judge Mayor. He had been appointed as being the appropriate judge to hear the matter in accordance with the practice for dealing with fraud offences of this nature. The judge fixed the hearing of the application for 14 February 2000. On that day there was an application to stay the proceedings as being an abuse of process made on behalf of the defendants. The basis of the application was that, under the appropriate regulations which dealt with the form of activity in which the defendants were said to be engaged, there should have been a preliminary inquiry by the Commissioners of Customs and Excise prior to the prosecution. It was said that to prosecute without conducting a preliminary investigation amounted to an abuse of process.
6. Matters became more complicated before the judge because an issue arose as to whether the Commissioners of Customs and Excise, as prosecutors, had failed to disclose certain documents to the defendants. The approach of Customs with regard to non-disclosure was that the documents, first of all, were not relevant, and secondly, if they were relevant and therefore should have been disclosed, they were documents in respect of which they were not obliged to make disclosure on the grounds of public interest immunity.
7. Prior to making the order for costs, which is the subject of the present application, Judge Mayor ruled that, first, the documents were relevant, and, secondly, that they should have been disclosed. On 17 February, the hearing was left on that basis. On the following day, 18 February, the judge ruled that an order for costs should be made against the Commissioners of Customs and Excise under Regulation 3. In order to understand how the judge came to make that order, it is necessary to refer to the transcript. It appears that the judge having indicated the order which he made with regard to the documents, the Commissioners of Customs and Excise decided, instead of complying with the order, that they would offer no evidence in support of the prosecution. In those circumstances the proceedings against the defendants came to an end. They were duly acquitted and formal verdicts of not guilty were entered in their favour under section 17 of the Criminal Justice Act 1967.
8. The defendants having been acquitted, the question of the substantial costs which had been incurred was very much in the mind of those who were representing them. They wished to recover those costs. They could have sought to have the costs paid out of central funds, in which case all the costs which were properly payable to them under an order of that nature would have been paid long ago. However, based on the contention that there had been an abuse of process by the Commissioners, the defendants chose to seek an order under Regulation 3. Mr Purnell QC, on behalf of Mr Watchorn, referred Judge Mayor to Director of Public Prosecutions v Denning [1991] 2 QB 532, and sought the order for costs against the Commissioners.
9. Mr Barnard, who represented the Commissioners of Customs and Excise before Judge Mayor (as he represents them before us today), said to the judge as follows:

"Your Honour, may I say that I am instructed to oppose the order and I do oppose the order, but inasmuch as it seems to me that this order sought is said to be the appropriate and really inevitable consequence of the rulings which your Honour made yesterday and this morning, I could not address argument, it seems to me, properly to you, because such argument would have to be on the basis those rulings were wrong and I am certainly not going to address that sort of argument.

So for the record I oppose the order but I do not think I can properly advance submissions in support of my opposition."

10. Judge Mayor said:

"Then the court orders that in respect of both defendants those costs which they have personally incurred in respect of these proceedings shall be paid to them by the prosecuting authority, namely Her Majesty's Customs & Excise, as being costs incurred as a result of an unnecessary or improper act or omission by the prosecution in this case.

I shall be kind to the extent of leaving the order in the alternative as to whether it is unnecessary or improper.

As to the legal aid costs incurred by Mr Wilson, arrears will be remitted and contributions made will be returned to him.

The amount of costs will be assessed or taxed, I confess I do not know which is the present proper word to use in the criminal jurisdiction, by the appropriate officers."

11. The judge clearly did not have in mind the precise terms of Regulation 3. It will be seen that a general order which the judge made on that occasion was not the type of order which was contemplated by Regulation 3. However, that was not drawn to the judge's attention. The words of the regulation require, first, that the order should specify the amount of costs to be paid. That was not done. Secondly, it is a requirement that before an order is made, it must be shown that the costs result from an unnecessary or improper act or omission by the party against whom the order is to be made. In this case the improper conduct was never identified. No doubt the judge had in mind that the prosecution should have disclosed the documents which he had indicated were relevant, and secondly, that they should have disclosed those documents notwithstanding that they were seeking to claim public interest immunity in respect of them.
12. What constitutes an unnecessary or improper act or omission by or on behalf of a party to proceedings is not entirely clear. So far as the authorities are concerned, help is provided by Nolan LJ (as he then was) in Director of Public Prosecutions v Denning (above). The meaning of Regulation 3 appears in the headnote:

"The word 'improper' in section 19(1) of the Act of 1985 does not necessarily connote some grave impropriety. Used, as it is, in conjunction with the word 'unnecessary', it is intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly."

13. In the course of his judgment, Nolan LJ also identified what he considered to be the purpose of section 19 and Regulation 3. At page 540C he said:

"The purpose and effect of section 19(2)(a) and regulation 3(1) seem to me to have been not to vary the normal procedure by which a final order of costs is made at the end of the proceedings -- that is to say, after they have been ended by a verdict, or by a notice of discontinuance -- but to give the court power to make an interim order of costs while the proceedings are still in progress. In short, the result of a notice of discontinuance in my judgment is to bring the proceedings to an end in the same way as a verdict would have brought them to an end but to leave the normal jurisdiction of the court in the matter of costs unaltered. The somewhat broader provisions in section 16 upon which Mr Field has sought to rely by way of contrast are, I think, designed simply to allow the defendant to be reimbursed out of central funds for costs other than those incurred in court proceedings."

14. The approach to costs is also dealt with in Practice Direction (Costs in Criminal Proceedings) 93 Cr App 89. Paragraph 7 of that Practice Direction deals with award of costs under the regulation here being considered. It provides:

"7.1 A magistrates' court, the Crown Court and the Court of Appeal (Criminal Division) may order the payment of any costs incurred as a result of an unnecessary or improper act or omission by or on behalf of any party to the proceedings as distinct from his legal representative: section 19 and regulation 3.

7.2 The court must hear the parties and may then order that all or part of the costs so incurred by one party shall be paid to him by the other party.

7.3 Before making such an order the court must take into account any other order as to costs and the order must specify the amount of the costs to be paid. The court is entitled to take such an order into account when making any other order as to costs in the proceedings: regulation 3(2) to (4). The order can extend to legal aid costs incurred on behalf of any party: section 21(4A)(b).

7.4 In a magistrates' court no order may be made which requires a convicted person under 17 to pay an amount by way of costs which exceeds the amount of any fine imposed on him: regulation 3.

7.5 Such an order is appropriate only where the failure is that of the defendant or of the prosecutor. Where the failure is that of legal representative(s) section 19A or the inherent jurisdiction .... may be exercised."

15. The fact that this procedure does not apply to a failure by a legal representative indicates that this jurisdiction is not the same as the wasted costs procedure which is directed at the defaults of legal representatives. However, Mr Richard Whittam, who has appeared as amicus, and for whose assistance we are very grateful, draws a parallel between the approach which should be adopted in a case of wasted costs proceedings and the present proceedings. I accept that there is a similar flavour to the procedure that we are considering here and the procedure which is involved in wasted costs proceedings. For that reason he drew our attention to the guidance which has been given in regard to the making of wasted costs orders, and in particular to the three-stage test which has been recommended, involving asking, first, whether there has been under the wasted costs regime an improper, unreasonable or negligent act or omission; secondly, if so, had any costs been incurred by any party in consequence thereof; thirdly, if so, should the court exercise its discretion to disallow or order a representative to meet the whole or any part of the relevant costs; and fourthly, if so, what specific sum was involved?
16. An examination of the language of the Regulations makes it clear that the proper exercise of the jurisdiction under Regulation 3 requires, first, the judge to consider whether there has been an unnecessary or improper act or omission. Secondly, the judge has to consider whether costs have been incurred as a result of that unnecessary or improper act or omission by one of the parties. Thirdly, the court has to consider whether it will as a matter of discretion order all or part of the costs so incurred to be paid to the other party by the party in default. It is implicit in the last stage that, before an order is made, the judge is required to identify the costs so incurred (that is the costs incurred as a result of the unnecessary or improper act or omission). Having performed those exercises, finally, the judge will have to specify the amount of costs to be paid. There is therefore a formal structure to be followed before an order is made. The use of a formal structure of the sort indicated was not, it appears, followed partly because Mr Barnard made a concession that it was a proper case in which an order could be made. It is important to appreciate why he made that concession. He did not agree that his clients should be ordered to pay costs under Regulation 3. He recognised that, unless he was to engage upon the pointless exercise of re-arguing the matters which had already been decided by the judge as to the relevance of the documents which were not disclosed and also whether they were privileged in the public interest, a costs order could properly be made under Regulation 3. However, he did not accept on behalf of the Commissioners that the judge was right to make the decisions which he had with regard to relevance and public interest privilege, but, having regard to the view which the judge had formed contrary to his submissions, he recognised that an order was inevitable.
17. On this application for judicial review the defendants first take a jurisdictional point. They consider that this is not a proper subject of an application for judicial review because of the terms of section 29(3) of the Supreme Court Act 1981, which limits the scope of applications for judicial review so that they do not apply "in matters relating to trials on indictment". The defendants submit that the order as to costs made by the judge falls within the exclusion. The words of section 29(3) have given rise to a considerable amount of authority. The authorities are not all consistent with each other. However, fortunately in the course of the argument that has been heard by this court today, the issue which we have to determine can be narrowed very considerably. Mr Barnard accepts that, unless the judge made an order which he had no jurisdiction to make, the provisions of section 29(3) would prevent an application for judicial review being pursued.
18. The House of Lords has now given considerable assistance as to the proper approach to section 29(3). I refer in particular to the dicta of Lord Bridge in In Re Smalley [1985] AC 622, to In Re Sampson [1987] 1 WLR 194, and primarily to In Re Ashton [1994] 1 AC 9. Were it not for the last case to which I have referred, the Commissioners, in their contention that there is jurisdiction to review the judge's order, would be able to rely on the decision of this court in R v Crown Court at Wood Green, ex parte Director of Public Prosecutions [1993] 1 WLR 725. The decision of the court in that case is dependent upon two authorities which were disapproved of in In Re Ashton. That being so, it seems to me that the decision in R v Crown Court at Wood Green is of little assistance in determining whether this is a proper matter to be considered on judicial review.
19. That being so, the case which becomes crucial is R v Crown Court at Maidstone, ex parte London Borough of Harrow [2000] 1 Cr App R 117. The issue which came before the Divisional Court (Kennedy LJ and Mitchell J) in that case was very different factually from the issue which we have to decide. There a defendant had entered a plea of not guilty by reason of insanity. The judge proceeded directly to make a supervision and treatment order under the provisions of the Criminal Procedure (Insanity) Act 1964. For the judge to proceed in that way was wrong. There was a failure to empanel a jury; so a verdict was not taken from a jury on the question of insanity. That being so, the judge was not entitled to proceed to deal with the defendant under section 5(1) of the Criminal Procedure (Insanity) Act 1964, since that Act expressly provided that a supervision and treatment order could only be made if either a special verdict was returned or findings recorded that the accused was under disability. That led to an application for judicial review. In a judgment of commendable clarity, Mitchell J dealt with the preceding authorities, and then proceeded to consider whether a judge has acted in a way which clearly was contrary to the statutory provisions to the extent that happened in that case, it was open for the court to hear an application for judicial review, notwithstanding the limit of the court's jurisdiction under section 29(3) of the Supreme Court Act 1981. In his judgment with which Kennedy LJ agreed, Mitchell J decided that there was scope for the court to exercise its powers of judicial review in those circumstances. He did so after referring to Maidstone Crown Court, ex parte Gill [1986] 1 WLR 1405, where Lord Browne-Wilkinson in his speech had suggested that it would be a helpful pointer to the true construction of section 29(3) if a court were to ask itself:

"'Is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated by the indictment (including the costs of such issue)?' If the answer is 'yes', then to permit the decision to be challenged by judicial review may lead to delay in the trial; the matter is therefore probably excluded from review by the section. If the answer is 'no', the decision of the Crown Court is truly collateral to the indictment of the defendant and judicial review of that decision will not delay his trial...."

20. Mitchell J, at page 138, gave his analysis of the decided cases which led him to reach a number of conclusions. The fourth of those conclusions was:

"Where an event within the excluded category is challenged on the basis of 'want of jurisdiction' then, just as in the cases of 'unappealable' sentences (which are challenged on that basis) an appeal does lie to the Court of Appeal, so this Court will not decline jurisdiction solely on the basis that the challenge relates to a matter within the excluded category. Subject to point 7 below, the Court will determine whether the Crown Court had jurisdiction to act as it did. The issue of 'jurisdiction' is not the same as an issue relating to the quality of a decision or an order which the Crown Court did have jurisdiction to take or to make. The word 'quality' embraces questions as to whether (jurisdiction apart) the decision/order was right or wrong and whether, if there was a discretion, it was properly exercised."

21. In his helpful submissions, Mr Barnard relies on the category of circumstances which Mitchell J identified in this paragraph of his conclusions. He submits that, while this case requires an extension of the approach of the Divisional Court in the Maidstone Crown Court case to a different situation, this submission is supported by the general approach which that paragraph indicates.
22. Mr Purnell, who appears on behalf of one defendant, Mr Goudie QC, who appears on behalf of the other defendant, and Mr Whittam, all agree with the basic approach of Mr Barnard. The dispute is as to its application to the circumstances which here are under consideration. Mr Barnard's argument involves going back to the language of Regulation 3 and recognising that the regulation presupposes that before the judge exercises his discretion to make an order, he has to be satisfied that there has been an unnecessary or improper act or omission. Mr Barnard submits that on the facts which are before this court there has been no unnecessary or improper act or omission by the Commissioners of Customs and Exercise with regard to the way they pursued the prosecution of the defendants so there can be no basis for the order of costs which was made.
23. The judge, as I have indicated, appears to have come to the conclusion that there was a default which falls within Regulation 3 because of the decision of the Commissioners of Customs and Excise not to disclose the documents, first, because they regarded them as irrelevant, and secondly, because they regarded them as being subject to public interest immunity.
24. Mr Barnard argues that the approach which should be adopted by prosecutors as to disclosure is now clearly set out in R v Keane (1994) 99 Cr App R 1. He took us to the statement of principle given in that case by Lord Taylor CJ, and referred in particular to pages 6 and 7. Mr Barnard submits that it was for him as the counsel prosecuting to make a judgment as to what documents were relevant or not relevant, and that was what he did. As I have indicated, Regulation 3 is not directed to defaults by a legal representative, and indeed no one is suggesting that Mr Barnard was in default in any way. Having formed a judgment that these documents were not relevant, Mr Barnard asks: what default was involved in his not handing those documents to the defence? He also submits that these documents could properly be the subject of a claim for public interest immunity. That was a claim which he put forward properly on instructions. The judge was the appropriate person to rule on that submission. It is true that the judge ruled against him, but that did not mean that he or the Commissioners of Customs and Excise had acted in any way which was inappropriate or wrong. For the purposes of deciding the section 29(3) point (which is critical), it is not necessary for this court to review the judge's decision. Suffice it to say that, in my judgment, having read the transcripts in this matter, I regard Mr Barnard's arguments as powerful. The judge was required to take them seriously and examine them with care before making the order for costs which he did.
25. In any event, having decided to make an order, he had to determine what were the costs incurred by the default of the Commissioners of Customs and Excise. That has not as yet happened. It is important to appreciate that the most that Mr Purnell can say is that the application to the judge about privilege should have been made earlier than it was. Following a proper application for public interest immunity, a judge's ruling was essential. No application could be made until a judge had been nominated. Frankly and appropriately, Mr Barnard accepts that if he had recognised, as the judge's ruling required him to do, that the documents were relevant, then he would have made an application before the hearing in February 2000. He would have done so because he would have been anxious to avoid costs being incurred. He would have made the application ex parte, but he would have given notice to the defendants (although they would not have been directly involved).
26. However, the fact that the judge's decision can be challenged does not mean that it is a decision which is made without jurisdiction. As was submitted on behalf of the defendants, there is no doubt that if the judge was seized of an issue as to whether relevant documents had not been disclosed, and that was an issue on which he had jurisdiction and with which he was required to deal. He did so and he came to his decision (right or wrong).
27. The same is true with the regard to the claim for public interest immunity. Both those decisions were made within the judge's jurisdiction. Having made those decisions, as Mr Barnard's concession illustrates, the judge had the necessary material on which to make an order under Regulation 3. It seems to me that, in those circumstances, it is quite impossible to say that there was here a lack of jurisdiction of the sort identified by Mitchell J in R v Crown Court at Maidstone, ex parte London Borough of Harrow. The extension of the principle of that case to cover the present case is an extension too far so far as the language of section 29(3) is concerned.
28. Accordingly, I conclude that the defendants are right in their submission that this court has no jurisdiction to reconsider the judge's decision on an application for judicial review. I recognise that there can be disadvantages in that conclusion. It means that here the Commissioners of Customs and Excise have no remedy in respect of Judge Mayor's decision, although it will be apparent from the comments I have already made in this judgment that if the merits of this application were to be considered, there may be powerful arguments in favour of the Commissioners of Customs and Excise.
29. The fact that it is the Commissioners of Customs and Excise who are the prosecutors who find themselves running up against section 29(3) means that the position is not of such great concern as it would be if it were a member of the public who was in that position. The primary purpose of section 29(3) is to avoid the criminal trial process being interfered with by applications for judicial review. Where the criminal proceedings have come to an end, as here, there can be no question of the proceedings being interfered with. Therefore the disadvantage of judicial review is not obvious. So it may be thought that the language of section 29(3) should perhaps be reconsidered so that in appropriate cases the risk of injustice which can be caused by section 29(3) applying would be avoided.
30. In this case it seems to me (and no one has suggested otherwise in the course of argument) that there could undoubtedly have been a proper and full order made for the defendants' costs to be paid out of central funds. It was not necessary for the defendants to make an application for costs under Regulation 3. Mr Purnell explains that there can be advantages in an order for costs under Regulation 3 because the judge fixes the amount of those costs, and if there has been a serious default, then that could cause the judge to take a generous approach towards the ordering of costs. That would therefore benefit someone in the position of his client. I recognise that there is substance in that submission. However, the benefit is achieved at considerable costs. There is a disadvantage of having to go through the structure which Regulation 3 requires. The disadvantage includes the fact that frequently it may be very difficult to identify the costs which have been incurred as a result of the default. It may be hotly disputed that there has been any default on behalf of the prosecution. Because of the difficulties to which I have drawn attention, it seems to me that it is important that the courts should adopt a conservative approach to the making of orders under Regulation 3.
31. I refer back to the guidance provided by Nolan LJ in DPP v Denning as to the sort of circumstances he had in mind when it would be useful to make an order. I can see that if there is a discrete hearing, and that is all that is involved, a judge can deal with the matter in a summary manner. However, this case illustrates that in situations other than that, complications can arise. It is accepted by all parties that because of the lacuna in the order which was made, the matter is going to have to go back to Judge Mayor so that if necessary he can fill in the blank spaces in the order. He can deal with the period it should cover and the amount of costs which are involved.
32. I hope, however, that it will not be necessary for a protracted hearing to take place before the judge, although I can well understand that there is a danger of that happening. It seems to me that, bearing in mind that the defendants are entitled to an order out of central funds, it should be possible for the parties to be sensible and realistic, and to take a broad view as to the appropriate order under the power contained in Regulation 3. That will enable a further hearing before the judge to be (as I hope) a formality rather than a contested and expensive dispute. I would dismiss this application.
33. MR JUSTICE NEWMAN: I agree and wish to add only some short observations. As my Lord, the Lord Chief Justice, has observed, the material in this case discloses a number of things which occurred in the course of the two hearings before His Honour Judge Mayor QC which could be regarded as capable of giving rise to some sense of grievance on the part of the Commissioners of Customs and Excise. It is unnecessary for those to be looked into. That which has been brought before this court turns upon the judge's exercise of power under section 19(1) of the Prosecution of Offences Act 1985 and Regulation 3 of the Costs in Criminal Cases (General) Regulations.
34. It is common ground that it was not dealt with as it should have been, because it is now accepted that the judge should have: (1) identified the costs so incurred by reason of the improper act or omission he had found on the part of the Commissioners; (2) put a figure on the costs; and (3) insofar as the figure did not cover all the costs, award the defendants' costs out of central funds to make sure their costs were covered.
35. Counsel for the Commissioners made no application that he should identify and quantify the order. Nor did counsel for the defendants. Nor was any application made for costs out of central funds to cover any figure not covered by the Regulation 3(1) order for costs.
36. Moving to the question of jurisdiction, Mr Barnard made a concession in the terms which my Lord has set out. In my judgment, the position as it stood before the concession, as a matter of jurisprudence, was that the facts as found in the PII applications were antecedent conclusions of fact made in the context of another issue which were made plainly within the jurisdiction the judge was exercising. They were plainly conclusions of fact reached within the jurisdiction of the court. It is nevertheless plain that the judge had to make a finding in the context of the costs issue which required him, in my judgment, to be satisfied of impropriety or an omission. One can well understand why Mr Barnard made the concession which he did, having regard to the terms in which the judge had concluded on the issues as to PII. But in my judgment, as my Lord has stated, as a matter of analysis, the effect of the concession was to leave the matter for the judge to determine whether or not an order for costs should be made, on material which was translated from being material in the PII application to being material capable within the costs' jurisdiction of being used by the judge to determine whether or not there had been impropriety or omission.
37. Unattractive as it may have been for Mr Barnard to advance argument again, as a matter of analysis, in my judgment, that task was one which the judge had to undertake, whether or not he heard argument upon it. It was necessary for the judge to have regard to the powers he was exercising under the regulations and, having regard to the findings that he had made, to consider in the context of that issue whether or not it amounted to impropriety or omission. The concession as to that, made in the terms that it was made, did not relieve the judge of that responsibility. But in my judgment it cannot possibly be said that what occurred on this analysis is anything akin to that which occurred in R v the Crown Court at Maidstone, ex parte London Borough of Harrow, to which my Lord has referred.
38. That unattractive proposition was not, however, the only matter with which Mr Barnard could have dealt. Since the judge had not considered the issues expressly by reference to Regulation 3, it would, in my judgment, have been helpful had the judge been addressed specifically by reference to each of the ingredients of Regulation 3. Further, had Mr Barnard taken this course, he could have drawn the judge's attention to the need, when exercising his powers under the regulation, to identify the specific consequence in costs by reference to the omission or impropriety. Had that been done, it is possible that some of the difficulties, which have now been ventilated before this court, may well have dissipated, and it may well have been that in the course of such submissions, and in the course of such identified and specific argument, the learned judge may well have shed more light, or reconsidered at least in the context of that argument, the position which stood in his PII ruling. These difficulties emphasise that any judge dealing with such an application, would be well advised to follow what appears at paragraph 6-40 in the current edition of Archbold, namely the extract from the decision of Re Mintz (Wasted Costs Order) (The Times, 16 July 1999, CA) where, as appears from Archbold, various steps are set out. It is suggested they should be implemented when a wasted costs order is made. In particular, a three-stage test is recommended:

"(i) Had there been an improper, unreasonable or negligent act or omission? (ii) If so, had any costs been incurred by any party in consequence thereof? (iii) If so, 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 was involved?"

39. The approach is equally relevant to an order under section 19(1) of the Prosecution of Offences Act. Had an approach such as that been adopted by the judge, notwithstanding the findings he came to in the course of the PII application, it is not fanciful to suggest that the outcome may well have been different.
40. I agree nevertheless with everything my Lord has said and that in this matter the facts do not fall within any excepted area to the terms of section 29(3). This application should be dismissed.
41. MR PURNELL: My Lord, I make application for the costs of these proceedings and of the application before the Vice-President for permission to be joined?
42. THE LORD CHIEF JUSTICE: The costs of the proceedings would presumably cover that, but insofar as it does not, you ask for them?
43. MR PURNELL: My Lord, I do.
44. MR GOUDIE: My Lord, I make a like application. On 27 July, when both Mr Watchorn and Mr Wilson were joined, the court (Rose LJ and Rafferty J) said that the costs of that occasion should be reserved. I would ask for an order that embraces that order for reserved costs?
45. MR BERNARD: My Lord, I obviously have to be very careful not to make any concession. All I would do is to draw the court's attention to the fact, as is obvious from the Practice Direction, that the Divisional Court may make a defendant's costs order on determining proceedings in a criminal cause or matter (which this is). My Lord, whether that is an appropriate course in the context of this case, I make no submissions, but simply draw it to your attention.
46. THE LORD CHIEF JUSTICE: Thank you very much, Mr Barnard. (The court conferred) Mr Barnard, we do consider that this is a case where an order should be made against the Commissioners. Have you considered the schedule of costs which has very appropriately been delivered by Mr Purnell?
47. MR BARNARD: My Lord, I have seen it. I have no comments to make. Whether this is an appropriate case for summary assessment or formal assessment is a matter for the court. I do not think there is a schedule from Mr Goudie.
48. THE LORD CHIEF JUSTICE: Maybe Mr Goudie does not want any costs for counsel's representation in this case.
49. MR GOUDIE: My Lord, I understand that we have. It may not have got through to my learned friend's attention.
50. THE LORD CHIEF JUSTICE: Or to the court.
51. MR GOUDIE: I think in fact we faxed it through to my learned friend yesterday. My Lord, I will hand it to the court.
52. MR PURNELL: My Lord, there should be a slight amendment to the schedule which I have handed up.
53. MR BARNARD: My Lord, those who sit behind me say that there are items on the bill of costs which they looked at, in particular the preparation by those who instruct my friends in this matter -- if your Lordships look at the amounts there, they are matters which should be considered by one of the taxing masters. We would ask that there should be an assessment -- a taxation --
54. THE LORD CHIEF JUSTICE: As you know, that involves additional costs being incurred, but if you are challenging it ....
55. MR BARNARD: My Lord, we are.
56. THE LORD CHIEF JUSTICE: I think it would be difficult to make a summary assessment, and so it seems to me appropriate that the order should be that the Commissioners pay the costs of the application, including of the application before Rose LJ and Rafferty J, those costs to be assessed if not agreed.
57. MR BARNARD: I am obliged.
58. MR PURNELL: My Lord, I do ask for a sum on account. My Lord, the position is that for the variety of reasons that your Lordship has set out, and the history (the unattractive history) of this matter, my client is now severely financially embarrassed by the absence of any execution of the order of Judge Mayor and by the costs involved in this. So we would ask for your Lordship to award a sum on account and for the remainder to be dealt with by of taxation.
59. MR GOUDIE: We would invite your Lordship to do the same in our case.
60. MR BARNARD: My Lord, there would be no objection to your Lordships making an interim order on this bill in a sum which your Lordships thought to be appropriate. I am talking now obviously about the costs in the Divisional Court.
61. THE LORD CHIEF JUSTICE: Yes, I appreciate that. (The court conferred) There will be an interim order in each case of £12,000.