England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		13 December 2007

1. MR JUSTICE BURTON: This is an application for judicial review by the Crown Prosecution Service to seek to quash a costs order made against them by District Judge Devas, sitting at Bury Magistrates' Court on 1 February 2007. The costs order in question has been described as a wasted costs order and the order itself is inscribed in a schedule kept by the court in the following form:

"Wasted costs order made requiring £6,000 ... to be paid to Messrs Freeman & Co as a result of negligent acts or omissions identified by DJ Baker which caused the trial of this matter due to take place on 4-10-06 to be adjourned."

2. However I have been persuaded by Mr Webster QC, in very convincing submissions, that this was in fact, on analysis - and it is regrettable there had not previously been such analysis - not a wasted costs order, under S19A of the Prosecution of Offenders Act 1985, but a costs order under S19 of that Act (a "s.19 order"). This was not an order made against a legal representative, which is the order that is strictly called a wasted costs order, and is made under S19A and Regulations and Practice Statements made relating thereto, but is an order made under the original S19 of the Act on an inter partes basis. S19(1) reads:

"The Lord Chancellor may, by regulations, make provisions empowering Magistrates' Courts in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by or on behalf of another party to proceedings to make an order as to the payment of costs."

3. The Regulations that are made in respect of s19 are those under Part II of the Costs in Criminal Cases (General Regulations) Order SI 1986 No 13/35, in respect of costs unnecessarily or improperly incurred, as opposed to wasted costs orders made and provided for under Part IIA of the 1986 Regulations. There is a Practice Direction on Costs in Criminal Proceedings 2004 Part VIII, which only applies to what Mr Webster has called the prescriptive procedure relating to the making of a costs order against a non-party, namely a legal representative. Although not identical to a costs order inter partes in civil proceedings, a s19 order has a much closer analogy to such an order than it does to a wasted costs order under s19A against a non-party.
4. The circumstances in which this matter arose were these. A defendant Mr Grogan - for whom Mr N Freeman of Freeman & Co Solicitors, who has been joined as an interested party in these proceedings and has not appeared, but has supplied a statement - was charged with offences under s47 of the Offences against the Persons Act 1861 and his brother Christopher Grogan was charged with an offence under s39 of the Criminal Justice Act 1988, with regard to alleged assaults on a group of children who had been playing in a field throwing berries and stones on to a road. The children had apparently hit their car with berries and stones, such that they stopped the car, got out, approached the children in the field and proceeded to the alleged assault. The evidence therefore against these two defendants was substantially that of the children, and in particular three of them.
5. There was an Order made by the Bury Magistrates' Court on 1 February 2006 - as it turned out, a year to the day before the eventual disposal of this matter at the Magistrates' Court - when what are described as the standard directions used in the Bury Magistrates' Court were adopted and made part of a court order. Those directions included the following provisions:

Special measures:

(a) The prosecution to serve any application for special measures within 14 days.

[This would relate to special measures as to the protection of the children who were to give evidence.]

(b) The defence to serve any response to the application for special measures within 14 days of service of the prosecution application.

The prosecution case and disclosure:

(c) To the extent it has not done so, the prosecution must serve copies of documents containing the evidence on which the charge or charges are based, including witness statements and any documentary exhibits, tapes of interview, video tapes and CCTV tapes within 28 days.

(d) To the extent it has not done so, the prosecution must comply with its initial duty of disclosure within 28 days.

6. The evidence of the three children complainants was, as one would expect, taken on video, which recorded an interview of each of them. Those plainly are the tapes which would have been the subject matter of that order. There were notes of the interviews of the children taken by the police. According to ordinary practice in the area, those notes were not to form part of the prosecution case, albeit in any event, in due course, they were served as part of the schedule of non-sensitive unused material. The practice in the relevant area is not for a transcript of the tapes to be supplied but for the original tapes themselves to be supplied in return for an undertaking to keep them safe by the relevant defence solicitors.
7. The service of the original tapes, on the basis of a request for a suitable undertaking, was thus ordered to take place within 28 days of 1 February 2006. There was a breach of that order by the Crown Prosecution Service, since they were not served at all. Both the Crown Prosecution Service and the defendants, represented by Freeman & Co, however filed certificates of readiness for trial in September 2006.
8. The matter came on for trial before District Judge Baker on 4 October 2006. What occurred thereafter is described in the acknowledgement of service filed on behalf of the Bury Magistrates' Court as defendant to this application:

"5 (a) … Even though directions had been made for the claimant to serve the ... transcripts of the children's evidence this had not been done prior to the commencement of the trial on 4 October 2006.

(b) Mr Freeman requested that the case should go ahead on the basis that the claimant's case would not be able to be pursued as a result of their error.

(c) District Judge Baker gave the defendant the opportunity to produce the video or transcripts, to adjourn the proceedings.

(d) She told counsel representing the claimant that in her view the hearing listed for 4-5 October had been wasted due to their negligence in failing to provide disclosure to which the defence was entitled. DJ Baker invited representations at that stage but counsel for the claimant merely stated that she could not understand why disclosure had not been made as they had been in possession of the tapes for some considerable time prior to the hearing.

(e) DJ Baker directed Freeman & Co to prepare a schedule of costs for the final hearing and put the claimant on notice that the court would consider the question of wasted costs. In fact the claimant accepted this in paragraph 10."

9. It is common ground that in the course of that hearing Mr Freeman made representations seeking to avoid the consequence of there being an adjournment. He said that to proceed on the evidence that had been served, since that is how the case had been prepared. He submitted that the onus was on the Crown Prosecution Service to disclose oral evidence on which they sought to rely, and there was no duty for him to request it. He said that he had sought counsel's advice on that point.
10. As I have said, the Crown was granted an adjournment in order for video evidence to be disclosed, after opposition by Mr Freeman. The trial was re-listed for 1 and 2 February 2007. The tapes and the schedule of unused material were served very shortly after that hearing on 4 October 2006. A letter was sent by Freeman & Co on 6 October 2006, stating:

"We write further to the above matter in which the judge intimated that she would look favourably on an application for a wasted costs order. She reserved her final decision until the conclusion of the trial when the Crown Prosecution Service would have an opportunity of making representations. Would you kindly indicate within the next seven days whether it is your intention in principle to oppose the application and, if so, on what basis?"

There was no response to that letter by the Crown Prosecution Service. There was also no service by Mr Freeman of the schedule of costs which District Judge Baker had directed should be served for the adjourned hearing.

11. On the adjourned hearing on 1 February 2007 the matter came before a different district judge, District Judge Devas. The defendants in the original case had now pleaded guilty. The issue of wasted costs, as they were described, a costs order to be made against the Crown Prosecution Service in favour of Freeman & Co - but strictly speaking in favour of the defendants who would be liable otherwise to pay Mr Freeman's costs - was now considered by District Judge Devas. He relied upon the matter which had been the subject of criticism by District Judge Baker, namely the breach of the order.
12. District Judge Devas has made a statement for the purposes of these proceedings which Mr Webster QC has not sought to challenge. He confirms the contents of the Acknowledgement of Service. He adds as follows:

"I have referred to my personal notes of the hearing ..... which confirm [my] recollection of the matter and that [I] specifically asked counsel for the CPS if there were any further representations or explanations for the failures identified by DJ Baker on 4 October 2006. No further explanations or representations were forthcoming and I ordered the costs against the CPS 'as a result of the omission by the CPS identified by DJ Baker ... at the hearing in October' which resulted in that trial having to be adjourned."

13. Given that Mr Webster is unable to contest that statement, it is apparent that the requirement of the Regulations to which I referred - that such an order must only be made after hearing the party who is proposed to be made liable - is fully complied with, for two reasons. First, because they have been given an opportunity over the period between October and February fully to prepare their answer to the application and, secondly, because they were asked in terms to make representations on the day, and passed up that opportunity. That seems to have been all that was said by the Crown Prosecution Service on the day; once again, they were unable to answer the application.
14. Mr Freeman indicated that his costs would be substantial. It appears that although he had not served a schedule, a figure of £6,000 had settled down into the mind of the district judge as appropriate. That was the order that was made. It would appear likely that what then occurred was that counsel, or the representative from the Crown Prosecution Service, went back to the CPS offices, and as a result of that an application was made in the afternoon to the District Judge asking for re-consideration of the quantum, of the amount; this was made ex parte because Mr Freeman by that time had left the court. The District Judge describes what happened in his statement:

"It should also be noted that the representative of the Crown Prosecution Service then referred back to the case. Later in the morning" -

I think it was the afternoon, but it may not matter -

"when Mr Freeman for the defence had already left the court, I was informed at that time that DJ Baker had asked for a schedule of costs to be prepared by Mr Freeman. It would appear that this had not been done. It was clearly in the interests of justice to re-open the question of quantum even in the absence of the defence, and this was done. It must be stressed again that there was never an application at this stage by the CPS to re-open the whole question of costs, merely quantum."

Once again Mr Webster has been unable to challenge that before us today.

15. In his application before us Mr Webster has, in the light of this recently served statement by the district judge, largely jettisoned most of the original grounds which relied upon (a) a failure to give an opportunity to be heard before making the order, and (b) a refusal to accede to an application to set aside the order in its entirety which it is now clear cannot be shown ever to have been made. The grounds of the application concentrated substantially on such matters as a failure to give reasons.
16. The very clear submissions of Mr Webster have very much simplified the way in which he has put his application. He began by criticising the unclearness of the order that was made, and as recorded in the schedule to which I have referred, by virtue of its definition as a wasted costs order. I have no difficulty, albeit loose language was used, in being satisfied that this was not a s19A order but a s19 order, which, again, in those circumstances, renders inappropriate a number of the other grounds which Mr Webster's predecessors had otherwise included in this application, by reference to the alleged non-compliance with the detailed provisions of Part VIII of the Practice Direction, to which I earlier referred or with the 'three-stage test' provided for. I am satisfied that what was required here, no doubt by analogy with the fairness that is required in order to make an application against a non-party but nevertheless not in express accordance with such stringent procedure, was ordinary fairness as in relation to any order made by the court. There is no doubt that sufficient reasons were here given, the sufficient reasons being that there was a failure by the Crown Prosecution Service to comply with a clear order. No explanation had been put forward. It appeared that the adjournment had been caused by that failure, and no opposition - other than as to quantum - was put forward to the making of that order in favour of Mr Freeman, and even quantum was only raised as an afterthought.
17. What Mr Webster has submitted to us today is a very powerful argument by reference to the fact that Mr Freeman or his firm was himself or itself in serious breach of the Criminal Procedure Rules, albeit perhaps to a secondary rather than to a primary extent as had been the Crown Prosecution Service. He has drawn our attention to two particular duties on a party and his representative to a criminal case. These duties are set out in the Criminal Procedure Rules, which is preceded by the recitation of the overriding objective which binds both the prosecution and the defence. The relevant paragraphs are these. First, Rule 1.2 (c):

"Each participant in the conduct of each case must

...

(c) at once inform the court and all parties of any significant failure whether or not that participant is responsible for that failure to take any procedural step required of him or any practice or direction of the court. A failure is significant if it might hinder the court from furthering the overriding objective."

18. Rule 3.2 which is the provision relating to the duty of the court under sub-section (1) reads:

"(1) The court must serve the overriding objective by actively managing the case.

(2) Active case management includes

...

(d) Monitoring the progress of the case and compliance with directions"

This is accompanied by the provisions relating to the duty of the parties.

19. In Rule 3.3 -

"Each party must -

(a) actively assist the court in fulfilling its duty under Rule 3.2 without or, if necessary, with a direction."

20. It appears very clear from those Rules - which if they are not fully complied with by all parties to Magistrates' Court proceedings should be - that Mr Freeman, apparently with some advice from counsel if what he told the court in October 2006 is right, considered that he was entitled to ignore the breach of duty by the prosecution, the failure to comply with the Order, albeit that it was going to lead to hindering the court in furthering the overriding objective, and to fail to assist the court in fulfilling its duty to monitor the progress of the case and comply with directions.
21. Albeit that the first breach is by the Crown Prosecution Service, there was plainly a breach in those circumstances by the solicitor for the defendants in filing a certificate of readiness and then and thereafter failing to inform the prosecution and/or the court that the prosecution was in breach, in order to seek to ensure that the case went forward properly, and avoid the adjournment, which not only caused costs and inconvenience but, in relation to this case, no doubt caused some considerable concern to the children who would have had to attend on the day in order to be somewhere, at any rate, no doubt in the court precincts in order to be cross-examined.
22. This conduct was plainly a tactic by Mr Freeman, seen by him to be in the best interests of his clients, in the hope, as it turns out unfulfilled, that if he allowed the position to continue so that the prosecution turned up on the day without the possibility of being able to call their witnesses because they had not served the tapes, he would be successful in having the case dismissed, but that if all else failed there would simply be an adjournment.
23. This is quite inconsistent, not only with the express terms of the Civil Procedure Rules but also with the approach of the courts as recently enunciated - not only in the Foreword to the Magistrates' Court Criminal Cases Management Framework by Sir Igor Judge P, but also in the Court of Appeal per Auld LJ in R v Gleeson [2003] EWHC Crim 3357 at paragraph 36, and in the Divisional Court in Robinson and Others v Abergavenny Magistrates' Court [2007] EWHC 2005 Admin per Treacy J, giving the judgment of the court of which Hughes LJ was a member, at paragraph 14, and again in the Divisional Court in R (on the application of Director of Public Prosecutions) v Chorley Justices [2006] EWHC 1795 Admin per Thomas LJ at paragraphs 47 to 58, the latter being a case in which Freeman & Co themselves were instructed - in all of which the court made it plain that the days in which a defendant can take an ambush point by failing to co-operate have long gone.
24. What Mr Webster has submitted before us is that by virtue of the clear failure, as he submits it to be, of Mr Freeman, the interested party, to comply with the Criminal Procedure Rules, he ought to have been disentitled to receive costs, or at any rate that no order for costs should have been made against the claimant albeit that the Crown Prosecution Service was in breach of the Order.
25. Mr Webster faces in so doing, in my judgment, a considerable difficulty. That is that this is not a point which was ever made by the Crown Prosecution Service in submissions before this Order was made, or even after it was made, when the question of quantum came to be reconsidered before the Magistrates' Court itself. It was not made - nothing effectively was said - when the original problem arose before District Judge Baker on 4 October. Notwithstanding Mr Freeman's letter reminding them that he would be making an application, nothing was prepared prior to the hearing on 1 February. Nothing was said on the morning of 1 February when the matter was argued inter partes, and nothing was said in the afternoon when the question of quantum was re-opened.
26. It has therefore to be Mr Webster's submission that this is a point that should have been raised by the judge of his own motion when asked by Mr Freeman for those costs to be ordered, and that a breach of the Civil Procedure Rules is so important a matter and so obvious that it should have been taken into account; and consequently that the order by the district judge is one which failed to take into account a material matter and ought to be quashed on that ground, notwithstanding it had not been placed before the district judge by the Crown Prosecution Service. The great difficulty that Mr Webster faces in that regard is that if it is so obvious it is extraordinary that it was not obvious to the Crown Prosecution Service itself on no less than four different occasions.
27. I am not persuaded that it is a matter which ought to have been raised by District Judge Devas of his own motion. Mr Freeman had made clear on the earlier occasion before District Judge Baker that he had some sort of counsel's advice. How that counsel's advice can be justified against the Criminal Procedure Rules may be difficult to understand. But he had asserted that he had such advice, and there were months in which the Crown Prosecution Service could have armed themselves with the necessary argument to show that, if any such advice were indeed given, it must have been misconceived, and certainly that the circumstances were such that no costs order should be made against them despite their having been in breach of the Order.
28. I do not conclude that this was a matter which ought to have occurred to the District Judge of his own motion such as to set aside what was all but unopposed, and had been previously heralded by District Judge Baker as a straightforward matter. There was clear negligence. There was a clear breach of the Order which had not been explained, and it qualified under s19. There was no operation of the "three-stage test" which would have been applicable to a wasted costs order under s19A and therefore, to that extent, it may be that questions of causation were not fully considered by the District Judge. That must however now follow, as the District Judge has set aside the Order as to quantum.
29. When it comes to a consideration of the consequences, all that has occurred so far - I am not proposing to quash the order of the judge - is that there is an order in principle in favour of Mr Freeman. Mr Freeman will need to show the Magistrates' Court that there was loss caused as a result of the breach of the Order and negligence by the Crown Prosecution Service and what that loss was, and that he or his client is entitled to recover that loss. This is against a clear situation in which, albeit there was such a breach, at any stage Mr Freeman on behalf of his clients could, and was obliged to, have remedied the problem by raising it with the Crown Prosecution Service and/or the court. Had he done so, the adjournment would have been avoided.
30. Consequently when the Magistrates' Court comes to consider what, if any, sum should be paid, it will no doubt take into account (a) the fact that the party seeking to recover any sum under that order was himself, and his clients through him, in serious breach of the Civil Procedure Rules; and, (b) by virtue of the fact that both the claimant and the interested party were in breach of the Rules it may be difficult to establish that any loss - certainly any material loss - was caused by the original and continuing breach by the Crown Prosecution Service.
31. The matter of quantum must be a matter for the Bury Magistrates' Court now that the issue is to be reopened. The order itself cannot be quashed and consequently the application for judicial review is dismissed.
32. LORD JUSTICE MAURICE KAY: For the reasons given by Mr Justice Burton, I, too, would dismiss this application for judicial review. Accordingly the matter must now return to the District Judge to assess what sum, if any, should pass from the Crown Prosecution Service to Mr Freeman. That is a matter entirely for the District Judge.
33. It may be helpful if I record my view in agreement with that of my Lord, that it will be important for the District Judge to keep in mind that the liability relates only to wasted costs which have been caused by the omission of the Crown Prosecution Service. For my part, I am troubled by the approach of Mr Freeman and his client in this case. Plainly from his notepaper Mr Freeman is an experienced criminal practitioner. The notepaper discloses that he practises from premises modestly or immodestly called Freeman House in the centre of Manchester. He is a member of the Legal Services Commission Serious Fraud Panel, and the notepaper includes the logos of the Criminal Defence Service and the Community Legal Service. He and his client plainly decided to take advantage of the Crown Prosecution Service's error.
34. Although I make no findings in the absence of Mr Freeman, I consider that there is force in Mr Webster's submission that Mr Freeman had no regard for his duties under the Criminal Procedure Rules but preferred to proceed opportunistically on behalf of his client. If the District Judge were to come to that conclusion, it would be surprising if he were to consider it just to make the Crown Prosecution Service pay a substantial sum. He may think that justice would be done by fixing a modest sum, perhaps no more than necessary to remind the Crown Prosecution Service of the importance of complying with directions and duties.
35. Mr Webster, thank you very much.
36. MR WEBSTER: Could I ask for a copy of the District Judge's statement? I do not think that made its way to the claimant. I had seen the Acknowledgement of Service which set out his version but I had not seen the statement itself. I am sure it would be of assistance.
37. LORD JUSTICE MAURICE KAY: It was annexed to it.
38. MR JUSTICE BURTON: It came in by letter of 3 August.
39. MR WEBSTER: It has not made its way through to my papers. I do not think it has got to the CPS.
40. MR JUSTICE BURTON: It did not add anything great.
41. MR WEBSTER: I agree.
42. MR JUSTICE BURTON: But it did knock on the head any possibility of suggesting that the Acknowledgement of Service was not itself a statement of facts.