England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		9th May 2007

Ruling
1. MR JUSTICE GIBBS: In relation to the issue of fact which has arisen, and I have not found the decision to be easy, there is undoubtedly a conflict or substantial difference of evidence between Miss Dzewu, on the one hand, and Mr Wright and Mr Murphy on the other. The issue is really twofold: was there a conversation between Mr Murphy and Mr Dzewu after the District Judge arose following his decision to award costs? If so, was the conversation substantially as recollected by Mr Wright and Mr Murphy?
2. Less weight can attach to Mr Murphy's evidence because of his non-attendance. I bear that in mind, despite having been persuaded to admit it in evidence on the ordinary modern approach to civil procedure. I have listened to, and observed both witnesses, who actually gave oral evidence, with care. I believe them both to be respectable, intelligent and honest people, having heard and seen them. How then do I decide which account I accept? I remind myself that the decision is on the balance of probabilities. Looking at Mr Wright's account and that of Mr Murphy it is impossible to see how, if their account is wrong, it could be simply mistaken. It really must have been fabricated. Having heard and seen Mr Wright I do not believe that he was fabricating his evidence. I was impressed by its particularity, one example being the remark exchanged between him and Mr Murphy after leaving court and supposedly having heard the conversation between Miss Dzewu and Mr Murphy.
3. I accept further that because their respective practices were such that neither person knew what, if any, time limit applied to the submission of a bill of costs for taxation, they would have more than likely enquired about it from an officer of the court, as indeed an enquiry was made later by the letter of 9 December. It is quite likely that they would have enquired about the procedure and any time limit which applied.
4. As regards Miss Dzewu, equally, as I have said, she appeared to me to be an honest and straightforward person, but there exists at least the possibility of innocent error or lack of recollection on her part. She may have said something to Messrs Murphy and Wright and simply have subsequently forgotten. She denies it, but unlike the account given by Messrs Wright and Murphy her account could, if wrong, be the product of a mistake, not fabrication. After careful consideration I think it probable that Mr Wright's account is substantially correct. The precise words one cannot now be sure of. Whether the actual words were, "There is no time limit", or whether they consisted of an observation which carried that implication, one cannot now say. It could be that the remark was along the lines, "Do not worry about any time limit", or some such expression. But I think it more probable than not that words were said which conveyed that there was no limit or deadline for the application. Similarly I am satisfied that a summary was given of the basic requirements for submitting the matter for taxation.
5. I bear in mind what Miss Dzewu says: if she had been asked such questions she would not have given the answers that it is claimed that she gave. In formal circumstances, and by way of a considered response, I am satisfied that she is right about that, but the context here is of a casual unrecorded exchange which she was not asked to recall, and it is not her fault, for some months later. All three relevant witnesses appear to have a good recall of the detail of the case itself with some slight variations; but of the three witnesses relevant to the issue Miss Dzewu is likely to have had the least reason to need to recall the events in question.
6. I would like to conclude by saying that both witnesses gave their evidence well and clearly and were undoubtedly both trying to assist the court. The legal consequences of the decision on the facts will be a matter of submission in a few moments' time. I would make this observation: it is not a wise thing to seek guidance about the law informally and orally from busy members of staff, or officers of the court, and then to rely on the oral response. There have been a number of cases, to my knowledge, where reliance has allegedly been placed on off-the-cuff or unconsidered remarks made by officers of the court or members of the court service. It is basically a matter for those professionally qualified in the law to advise themselves on the questions of procedure and time limits, it is wiser to regard remarks by legal advisers, members of court staff, and so on, made informally, simply as assistance to be checked out later.
7. MR JUSTICE GIBBS: Mr Sampson, that is my ruling. These final remarks are not meant to be determinative of the issues about which you are going to address me. They are just matters of general observation.
(Legal argument continues) Judgment
8. MR JUSTICE GIBBS: This is a claim for judicial review of a decision of the defendant, the South Western Magistrates' Court, on 21 June 2006. A quashing order of that decision is sought.
9. The decision was one that rejected the claimant's claim for costs, which arose following his acquittal of an offence of driving without due care and attention, after a trial at the Defendant Court before a District Judge on 11 November 2005.
10. Following the hearing, successful from the claimant's point of view, the District Judge, on the application of his counsel, Mr Wright, made a defendant's costs order. He then left court. There is a conflict of evidence as to what occurred thereafter. That conflict of evidence concerned whether or not there was a conversation between the legal adviser, Miss Dzewu, who remained in court, and Mr Murphy, the claimant's solicitor, in the presence of the claimant's counsel, Mr Wright. I have resolved that difficult issue of fact in a ruling which I have already given, to which reference can be made, if needs be.
11. As a result of that ruling, I proceed on the basis that at the request of Mr Murphy the legal adviser supplied some details of what was necessary to be sent to the court in order for the claim and for the costs order to be taxed, and also reassured Mr Murphy that there was no time limit either in express terms or in susbtance.
12. The fact is that for different reasons neither Mr Murphy nor Mr Wright were familiar with Magistrates' Court procedure. Mr Murphy was not familiar with it because he was a civil practitioner dealing with the civil aspects, no doubt, of accident claims. Mr Wright was a criminal practitioner engaged understandably by Mr Murphy because of his expertise in the field, and because of the importance of the case to Mr Leask, the claimant. Mr Wright was familiar only with the costs regime at the crown court.
13. Following the hearing, Mr Murphy and a firm of Edwin Coe, to which he was then partner, followed up the question of costs in a letter to the Clerk to the Justices of the defendant on 9 December 2005. In that letter the outcome of the proceedings and the costs order were recited and the letter went on:

"We had anticipated that in order that we could deal with the taxation of costs and prepare the bill and papers for that purpose, that we would receive from the Court an Order or some documentation confirming the Judge's Order and also some documentation to enable us to complete the taxation of the costs or setting up procedures for doing so. In fact, we have not received anything so far and having spoken to the Court Official on a subsequent occasion, there seems to be a confusion as to whether or not we should receive any documentation as both explanations were given to us. In the circumstances, to avoid any further confusion, we would be grateful if you could please write to us letting us know whether or not we will be provided with an Order or any documentation from the Court either confirming the Judge's Order for costs to be paid or to enable us to deal with the taxation. If we are not to receive any further documentation, we would be grateful if you could please let us know what procedures you require us to carry into effect in order to deal with the taxation for costs."

That letter was a further demonstration that the claimant's solicitors were not familiar with the procedures in the Magistrates' Court.

14. No reply was sent to that letter. What happened was that a member of staff at the defendant's rang up Edwin and Co and left a message for Mr Murphy. That, at any rate, is the inference that I draw from a handwritten note on the original letter, which has been produced helpfully by the defendants today.
15. The situation arguably, at any rate, was left in an unsatisfactory state. Mrs Dzewu acknowledges in her evidence that she and her manager, Mrs Duncan, who made the challenged decision here, agreed that it would have been more satisfactory if a reply had been sent to that letter. We do not know whether any message reached Mr Murphy. There is no direct evidence that he rang back, although that is at least a possibility since he refers to a subsequent telephone conversation in later correspondence.
16. Following that letter there was, on 15 February 2006, a letter sent from Mr Morton, who had been engaged as a costs draftsman. That letter was sent some four days after the period of three months had elapsed from the costs order. It set out various questions and enquiries, which Mr Morton wished to make, with regard to the way in which the costs claim was to be framed. Anybody who read the letter would think, if they gave it thought, that Mr Morton was proceeding on the basis that the expiry of the three months should not affect the validity of the enforcement of the costs order.
17. This point was not taken up in any correspondence in reply. It was only on 19 May 2006 that the claim for costs was submitted with documents annexed to it. Again the way in which that letter of claim was framed does not indicate any concern on the part of the writer that the time limit had expired, or any consciousness that an application for an extension of the time limit was necessary.
18. I turn now to the notification of the decision. By a letter of 21 June 2006, signed by Miss Dzewu, but plainly implementing a decision of Mrs Duncan, the following appears:

"The matter of the taxation and any extension of time has been referred to the Bench Legal Manager at this court for a decision as to whether or not the taxation should be done out of time. You stated in your letter that you were not aware that you were up against a time limit but the onus is on you to know the provisions under which you are making the application for the Defence Costs Order and those provisions are quite clear.

It has been decided that no good reason has been given as to why the time limit should be extended and therefore as stated in my previous letter your claim is out of time and I will be returning your file in due course."

There were further discussions and representations. These were followed by the decision letter now under challenge, dated 28 June 2006, but received by the solicitors on the 30th. It includes the following:

"The case was concluded on 11th November 2006. On your application the court ordered a defence costs order.

It is not accepted that the clerk of the court advised you that there was no time limit. She is fully aware of the time limit set by the regulations.

You wrote to the court on the 9th December 2005 requesting written advice on how to pursue your application. On receipt of that letter on the 12th December 2005 a telephone call was made to your office asking for you to call back to discuss the contents of your letter.

On the 19th May 2006 you sent a claim for £48,820.99 plus supporting documentary evidence."

The letter of 26 May 2006 was then recited and Mrs Duncan went on:

"I confirm the position: in my view the fact that you were completely unaware that there was a time limit does not amount to a good reason."

19. The acknowledgment of service disputes the criticism which is made of the decision and gives reasons why there was no good reason to extend the time limit. It does not, however, go on expressly or, in my judgment, by implication to consider the question of exceptional circumstances.
20. The Costs in Criminal Cases (General) Regulations 1986 provide as follows, under the subject of time limits, at regulation 12:

(a) a claim for costs by an applicant under regulation 6, an application for a redetermination under regulation 9, or a request for an appropriate authority to give reasons for its decision on a redetermination under regulation 9;

...

may, for good reason, be extended by the appropriate authority, the Senior Costs Judge or the High Court, as the case may be.

(2) Where an applicant without good reason has failed (or, if an extension were not granted, would fail) to comply with a time limit, the appropriate authority, the Senior Costs Judge or the High Court, as the case may be, may, in exceptional circumstances, extend the time limit.

(3) An applicant may appeal to the Senior Costs Judge against a decision made under this regulation by an appropriate authority ..."

The relevant time limit in this case is agreed to be 3 months.

21. The interpretation of those regulations has been considered by Schiemann J, as he then was, in a case in this court (unreported), namely R v the Clerk to the North Kent Justices, ex-parte McGoldrick and Co court reference CO/2392/93, heard on Tuesday, 24 January 1995. I do not propose to cite extensively from that case, but I accept Mr Sampson's submission that the issue being considered in that case was very similar to that arising in this case. Critically Schiemann J found that there were two separate aspects which needed to be considered by a decision-maker in circumstances such as those that arose in that case and in this case: first, whether the failure to comply with a time limit was without good reason or whether a good reason existed; and second, whether exceptional circumstances existed which would justify the extension of the time limit. The fact that there was no good reason, or that the reason for failure was not a good one, did not preclude there being exceptional circumstances. Each aspect had to be considered separately.
22. In this case there are, in my judgment, two flaws in the defendant's approach which must lead to the decision being quashed. The first is that Mrs Duncan proceeded on the basis that the conversation, which I found to have taken place immediately after the conclusion of the hearing, did not take place. Secondly, no consideration was given to whether there were exceptional circumstances. In quashing the decision I do not think it right to substitute a decision of my own and thereby to take the place of the decision-maker. I think it appropriate to remit the matter for further consideration. I leave the decision on reconsideration entirely to the decision-maker.
23. There are matters which I would invite the decision-maker to take into consideration (although I do not thereby imply that they are the only relevant matters). First, he was fully entitled to take into account the general proposition that the parties, and particularly professional advisers to parties, are responsible for ascertaining the law and would be unwise to rely on oral remarks, however helpfully given, by members of staff of the HMCS or officers of the court. Secondly, I would invite consideration of the conversation that I have found did follow the court hearing. Thirdly, consideration of the fact that the letter of 9 December 2005 was written and never received any formal written reply. Fourthly, in so far as it might be thought relevant, the written inquiry made by Mr Morton, the costs draftsman, on 15 February 2006. Beyond drawing the attention to those matters, I say nothing more about what the appropriate eventual decision should be.
24. MR SAMPSON: My Lord, I am very grateful. You will have received a costs schedule, but my Lord will be aware of Schiemann J's observations in McGoldrick with regard to costs. If your Lordship read that file in the transcript--
25. MR JUSTICE GIBBS: I did. I think the same principles apply today.
26. MR SAMPSON: I just thought I would mention costs in case your Lordship is thinking otherwise.
27. MR JUSTICE GIBBS: I think not only on the principles enunciated by Schiemann J, but also on the basis that whatever the outcome of this one cannot blame the court for what happened entirely, or indeed necessarily at all.
28. MR SAMPSON: So be it. I am very grateful for your Lordship's time today.