At the outset of the hearing, I made an order under section 4 of the Contempt of Court Act 1981 that the publication of any part of these proceedings be postponed until the criminal charges against the person referred to below as "C" have been finally determined. Similar reporting restrictions have also been imposed in the course of those criminal proceedings. Whilst those reporting restrictions remain, my judgment in these proceedings may (and may only) be published in the anonymised form set out below (or as a précis thereof) and no publication shall identify or tend to identify any of the persons variously referred to below as "AB", "C", "D" and "EF" or the location referred to below as "X".
Mr Justice Hickinbottom
QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of
|- and -
|X Crown Court
Pascal Bates (instructed by Treasury Solicitor) for the Defendant
EF (instructed by the Revenue & Customs Prosecution Office) for the Crown.
Hearing date: 15 May 2009
Crown Copyright ©
Mr Justice Hickinbottom:
"… There is no evidence that he has ever, for example, given evidence and been disbelieved by a jury. Bear in mind he gave evidence in a case in front of a jury, which was last year, he was believed…"
"This was frankly an outrageous thing for any Counsel, … to say to a jury. Not only was it incorrect, but it totally undermined any proper direction the court was going to give to the jury. The previous jury clearly disbelieved C because they convicted him on [a number of] counts. To invite this jury to say that the previous jury believed him was doing exactly what the direction that was to be given said they should not do, as it made clear they should not speculate about what had or had not happened at that trial…. If this jury would retire to consider their verdicts with the false impression that the previous jury had only considered some counts and had believed C when he had given evidence on oath, the question is whether or not this can be repaired without prejudice to C or the Crown."
The judge considered that it could not. He came to the firm view that, in the light of the claimant including the passage I have quoted in his closing speech, he had no option but to discharge the jury. The judge said:
"If it was at all possible to continue with the case without serious prejudice to C or the Crown, that would be the preferred course. However, if this jury were to be given, and I quote, "the full picture of the previous trial", and C was convicted, and instructed different lawyers, I have little doubt that the Court of Appeal would quash the conviction…. In this case, to attempt to repair the damage, would be in my view, unfair to this defendant and to do nothing would be unfair to the Crown. I shall therefore, with considerable misgivings discharge the jury and give them a full explanation why."
"[The claimant's] conduct in his closing address to the jury in the case of R v C on 30 October 2008 was improper, unreasonable and/or negligent resulting in the court discharging the jury and ordering a re-trial. Full details of the conduct alleged are contained in the judgment of 3 November 2008…."
The letter also indicated that any application to recuse should be made formally, with written submissions and authorities.
"Even if I approached it with a totally open mind and came down against you, it still appears to the outward observer, that as I already made the original decision, I must be biased when I come to the same conclusion…" (transcript, page 43E).
"4(ii) It is said that the causative link between what was said by [AB] and the discharge of the jury is to be challenged.
It is a fact that it was [AB]'s speech which caused the court to discharge the jury. The only issue is should the court exercise its discretion to order [AB] to pay the wasted costs. That decision will be reached after hearing submissions on behalf of [AB]. It would not be open to myself or indeed any judge of the Crown Court to go behind the fact of the discharge or its reasons. It would be an impossible task for another Crown Court judge to perform; he or she would not have any familiarity with the complex issues of the trial or what had transpired. If necessary this review could be undertaken by the Court of Appeal and if the jury should not have been discharged they can so rule as they did in Re A Barrister  QB 293 at 300C. However an appellate court review is not the same as inviting another judge to rule as to whether he/she might or might not have discharged the jury…
8. Miss Carr has submitted that if I do not recuse myself, I should pass the matter to another judge to decide. This would not be appropriate as it would be a sort of appeal process and the correct forum for an appeal is the Court of Appeal."
i) whether this court has jurisdiction to entertain a challenge by way of judicial review to the judge's decision not to recuse himself:
ii) if so, whether the judge erred in law in refusing to recuse himself:
iii) if so, what relief (if any) should be granted.
The Wasted Costs Jurisdiction
"In any criminal proceedings…the Crown Court…may disallow, or (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with regulations."
Sub-section (3) defines "wasted costs" as:
"…any costs incurred by a party –
as a result of any improper, unreasonable or negligent act or omission on the part of any representative or any employee of a representative; or
which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay. "
Regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 (SI 1986 No 1335), made under section 19A, is in similar terms. The costs in respect of which an order can be made must, therefore, be "as a result of" (i.e. caused by) the representative's misconduct as defined in section 19A(3)(a). Regulation 3C of the 1986 Regulations gives a representative against whom a wasted costs order is made by the Crown Court a right of appeal to the Court of Appeal.
i) Has there been any improper, unreasonable or negligent act or omission?
ii) As a result have any costs been incurred by a party?
iii) Should the court exercise its discretion to order the lawyer to meet the whole or any part of the relevant costs?
Only if all three questions are answered in the affirmative will an order be made. The second question reflects the need for a causative link between the misconduct and the relevant costs.
Does this Court have Jurisdiction?
"In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting or quashing orders as the High Court possesses in relation to the jurisdiction of an inferior court."
"If it were possible to challenge decisions taken in the course of a criminal prosecution, not only the prosecution but also the accused would be able to put off the conclusion of the trial by taking technical points and then seeking to have the judge's decision reviewed in the Divisional Court."
"With one possible exception (to which I will return) the only decisions of the Crown Court which have been held to be reviewable are those in which either the order was made under a wholly different jurisdiction, e.g. binding over an acquitted defendant (R v Crown Court at Inner London ex parte Benjamin (1986) 85 Cr App R 267) or the order sought to be reviewed has been made against someone other than the accused. Plus the Divisional Court has been held to have jurisdiction to review decisions estreating a recognisance given by a third party (Smalley), ordering solicitors to pay costs thrown away (per Megaw LJ in R v Smith  1 All ER 651 at 658, approved by Lord Bridge in Smalley), for an order forfeiting a motor car belonging to someone other than the defendant which had been used by the defendant in the course of drug dealing: R v Crown Court at Maidstone ex parte Gill  1 All ER 129. It may therefore be a helpful further pointer to the true construction of the section to ask the question: '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: therefore it may well not be excluded by the section."
(i) The wasted costs jurisdiction under Section 19A is a separate collateral jurisdiction from the Crown Court's primary jurisdiction to try indictments: it is a discrete jurisdiction arising in the Crown Court "irrespective of whether that which is before the Crown Court judge is a trial on indictment, committal for sentence, an appeal from the magistrates or any other proceedings" (ex p Field at page 8, per Rose LJ). It is noteworthy that Lord Browne-Wilkinson in Huckfield used the example of a solicitor paying costs thrown away as an example of the exercise of collateral jurisdiction (although R v Smith to which he refers was before the introduction of section 19A, and the court was exercising its inherent jurisdiction over solicitors - but nevertheless it was construing the same phrase, "matters relating to trial on indictment").
(ii) The decision sought to be challenged does not involve an issue between the defendant and the Crown formulated in the indictment: it does not involve the defendant in the indictment as a party at all, nor indeed the Crown (the wasted costs having been raised by the court on its own motion).
In context, the reference in Huckfield to "including the costs of such issue" (see paragraph 28 above) and the comments of Lord Bridge in Re Sampson  1 WLR 194 at page 198F in my view clearly refer to parties' costs, and not the costs for which a non-party might be liable (which was also the view of Rose LJ in ex p Field at pages 9-10). Further, I do not consider that the fact that Regulation 3B(3) of the Costs in Criminal Cases (General) Regulations 1986 (which permits the court to take into account any other order as to costs in the proceedings before making a wasted costs order and vice versa) or the Costs Practice Direction at paragraphs VIII.1.2 and 1.7 (which also appears to envisage that costs may be considered "in the round") is persuasive to the contrary: although other costs orders might militate against invoking the wasted costs jurisdiction (or affect the terms of any wasted costs order that might be made) in a particular case.
(iii) The decision concerning recusal in this case does not in any sensible way "affect the conduct of the trial on indictment". Although he had earlier suggested to the claimant that he might wish to notify his insurers, the issue of wasted costs was only expressly raised by the judge after the jury were discharged. In any event, a wasted costs application (although compensatory in nature) bears upon, not the trial, but on the representatives' professional competence (see ex parte Field at page 12). Furthermore, the decision now sought to be challenged (the judge's refusal to recuse himself from dealing with wasted costs) is even further removed from the trial than a substantive decision in relation to wasted costs.
(iv) Looking at the purpose of the section 29 exclusion, given that the issue of wasted costs is entirely post-trial, there is no possibility of it delaying the trial to which they might relate.
(v) Ex p Field is clear authority for the proposition that a decision in relation to wasted costs does not fall within the exclusion: Rose LJ makes clear that he rejected the "submission that a wasted costs order is an integral part of the trial process". He went on to say (at page 12):
"I can see that that might be so, for example, if such an order were made because the conduct of Counsel by improperly repetitious questioning or submissions added to the length of a trial. But in the present case the order was made because the barrister was not in court."
The fact that the barrister was elsewhere when he should have been in court formed the basis of the application for wasted costs then before the court. Rose LJ continued:
"It would, as it seems to me, be an abuse of language to say that this order either affected the conduct of the trial or was an integral part of the trial process".
Mr Bates submitted that Rose LJ was drawing a line between those cases in which the costs arose as a result of what the representative did in court during the trial (within the exception: judicial review not available), and costs incurred otherwise (outside the exclusion: judicial review available). As the costs in ex p Field occurred otherwise than when the barrister was in court, in so far as he made that suggestion, Rose LJ's comments were obiter and made without the benefit of argument. But, in my judgment, Rose LJ was merely suggesting that he could envisage that there might be a case in which a decision on wasted costs could fall within the section 29 exclusion, without giving any clear indication as to the circumstances that might give rise to such a case. His comments have to be read in the context of his judgment as a whole, which makes clear that, in deciding whether a decision falls within or outside the exclusion, regard must be had to the indicators to which he referred, including whether the decision was made in a jurisdiction collateral to that of the primary jurisdiction of trying cases on indictment. Bearing all of those factors in mind, he considered the relevant question to be whether the decision is "truly collateral to the indictment".
Nothing in ex p Field persuades me that the decision in the case before me is other than "truly collateral to the indictment", for the reasons I have given - which are indeed reflective of Rose LJ's reasoning in that case, for which I am grateful. I do not discount the possibility of a particular wasted costs decision falling within the exclusion, although no example was raised in debate which I could confidently say would do so. Suffice it to say, that I am quite satisfied that this is not such a case.
Was the decision unlawful?
"Furthermore it was, in our judgment, wrong to have discharged the jury. Such a course was wholly unnecessary…. Costs were duplicated or wasted in fact because of the judge's decision."
Therefore, the relevant costs resulted, not from the representative's conduct, but from the conduct of the judge. In terms of the wasted costs jurisdiction, causation was therefore not proved.
(i) Insofar as it was suggested that it is a jurisdictional bar (which, as I understood Mr Bates, was his primary position), neither the judge nor Mr Bates put forward any jurisprudential basis for the position they adopted. There is no concept of issue estoppel in criminal cases (DPP v Humphrys  AC 1), and no other basis for any form of procedural bar on considering the same issue more than once in criminal proceedings was suggested.
(ii) Insofar as there was such a bar, it would not in any event apply in this case. First, the issues are not identical, the issue relevant to the wasted costs jurisdiction being whether, by discharging the jury, the judge acted unreasonably. On a wasted costs application, there would be no review of the decision to discharge, but only a consideration of whether the judge had gone beyond the boundaries of reasonable judicial decision in discharging the jury as and when he did. Second, and vitally, the parties to the criminal trial (being the Crown in the form of the Revenue & Customs Prosecution Office and C), were not the same as the parties to the wasted costs matter (which was brought against the claimant on the court's own motion).
(iii) Despite his diligent researches, Mr Bates did not produce any support for his proposition from the authorities. I was not referred to any case that supported the proposition that the conduct of a judge cannot be questioned in a wasted costs application at first instance. Indeed, from cases such as Re A Barrister, in which the Court of Appeal identified a number of grounds on which the judge at first instance erred without there ever being a suggestion that the court dealing with a wasted costs application at first instance cannot (even absent bias) consider the conduct of a judge, it seems implicit that there is no such bar. In El-Farargy, Ward LJ referred to the possibility of a judge considering the conduct of another judge at the same level as he, "hard though it is to sit in judgment on one's colleague" (at paragraph 32).
(iv) Of course, in practice, the courts have expressed themselves reluctant to engage in satellite litigation in which substantive issues are relitigated on the basis that the judge ought to have decided matters differently. For example, in Re Freudiana (transcript, page 7) Jonathan Parker J appears to have expressed the "tentative view" that complaints about judicial conduct should not be entertained in the context of wasted costs hearings: but that appears to have been common ground between the parties, and his view was given without the benefit of argument. In any event, he was not suggesting that there was a procedural or jurisdictional bar, only difficulties in practice. That judge certainly did not consider that the wasted costs hearing before him should (or could) proceed on the basis that the respondent could not defend it on the basis of the judge's conduct: and, in the event, the application was dismissed as an inappropriate case for the wasted costs jurisdiction to be invoked at all (see paragraph 34 above). If Mr Bates' submission were correct - and no judge in the Crown Court could consider a collateral challenge to decisions and conduct of the trial judge - the result would be, not that which he advocates, but that wasted costs applications would be dismissed where the respondent sought to defend on the grounds of the conduct of the judge. Alternatively, the approach advocated by Mr Bates would lead to almost every wasted costs case in which the conduct of the judge was in issue having to be determined by the Court of Appeal, effectively as a first instance case so far as that issue is concerned: that would in substance be contrary to the guidance given in Re P at  and in the Costs Practice Direction at paragraph VIII.1.5(ii), that the wasted costs 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"..
What relief should be given?
(i) I accept that successful judicial reviews in the wasted costs jurisdiction will be very rare. It is a summary jurisdiction with a simple and relatively short procedure and, in most cases, the proper course will be an appeal of the substantive order to the Court of Appeal. The appellate route will be the usual route for any challenge (see ex p Field at pages 18-19, per Rose LJ). As that right of appeal is expressly restricted to the representative the subject of an order, it will be (at highest) considerably rarer that an application for judicial review by a wasted costs applicant will be successful. I do not rule out the possibility, only because it is impossible to envisage every circumstance that might arise. To allow a judicial review in the case before me, which has exceptional features, will not lead to the opening of any floodgate.
(ii) Ex p Field was a case in which there was an actual right of appeal - because it concerned a substantive costs order, and the judicial review applicant was the subject of it - but nevertheless the judicial review was granted. It was granted because the judge's wasted costs order was bad on its face - it failed to identify any party who had incurred costs that were to be recompensed. Rose LJ was restrictive in his approach to the exercise of the judicial review jurisdiction in wasted costs applications. He only allowed the judicial review in that case because the order was bad on its face (pages 18-20). He said that he was not satisfied that the unavailability of an appeal is a reason for making judicial review available to challenge a wasted costs decision (page 17). He was unimpressed by submissions as to costs (page 16).
(iii) This court is rightly wary of granting relief where an alternative remedy is available: and is also wary of allowing a challenge by way of judicial review where Parliament has, with obvious positive intent, omitted an appeal right. However, in this case, there is no appeal against the judge's refusal to recuse himself. That is in a different category from (e.g.) a challenge to a substantive wasted costs order by an unsuccessful applicant, which appears to have been deliberately omitted from having a right of appeal. In my judgment, one cannot properly conclude from the statutory provisions that Parliament sought to exclude the possibility of any challenge of a decision of a judge who refuses to recuse himself in the circumstances of this case.
(iv) Furthermore, in exercising its discretion, courts have become more sensitive to considerations of proportionality and costs since ex p Field was decided in 1994. The prospect of wasted costs proceedings moving through the Crown Court and the Court of Appeal, with the possibility of it then being remitted for hearing by another judge, with the consequent delay and costs that that would entail, is an appalling prospect for this claimant. The estimated costs of just those Crown Court and Court of Appeal hearings are nearly £50,000 for him, and a further £20,000 for the Crown. Even if successful, the claimant will be unable to recover any of his costs. Furthermore, whilst this application lies over him, there are inevitable professional concerns for him. Delay will compound those. Even further, extended litigation over wasted costs may adversely affect the timetable for the second retrial of C, and even possibly the ability of the claimant to represent him at that trial. The claimant is C's barrister of choice for that trial. EF also expressed concern over the potential for delay and further costs, and the long-term integrity of the prosecution of C. In 1994, Rose LJ was not very impressed by such matters. Today, they are of very real concern to me in the context of this case.
(v) In considering relief, I am also influenced by Judge D's indication that, if a Crown Court judge were able to consider the reasonableness of his decision to discharge the jury, he would have recused himself. He will of course wish to act lawfully, and expressed the view that he would rather recuse himself. He did not do so, only because he felt himself constrained by what he considered the law to be. I have found that there is no such constraint. To grant relief in this case will not only speed the resolution of this wasted costs application, it will also give Judge D that which he preferred, namely to pass the wasted costs application to another judge.
(vi) Further, if Judge D were to continue to deal with the matter as he proposes - i.e. to deal with the wasted costs application himself, and not allow the claimant to rely upon his defence on causation - that would in my view (subject to correction on appeal) deprive the claimant of a fair hearing before an independent and impartial tribunal.
(vii) I also take into account the views of the Crown, a particularly interested party in this application. EF argued at the time that the jury need not and should not be discharged. The Crown has not sought to make any application for wasted costs themselves. EF considers that, in all of the circumstances of this case, the judge ought properly to have recused himself - and that was his submission to the judge. He expressed himself particularly concerned about the potential for further delay in the criminal proceedings that might be brought about by the wasted costs application especially in the light of the Court of Appeal direction on the appeal from the first trial that C be re-arraigned within two months. Those submissions, from a party without direct interest in the wasted costs application which was required to attend this hearing to render assistance to the court, deserve particular consideration.
(viii) I also note that C has himself made a complaint to the Office of Judicial Complaints about the judge's discharge of the jury which is, at least, further evidence that he wished the jury not to be discharged. The complaint is in very strong terms, in substance alleging bad faith against the judge (in the penultimate paragraph on page 5), going far beyond the claimant's case in respect of the wasted costs application. However, in relation to this application, from C's point of view my main concern is that the ultimate conclusion of the criminal proceedings against him should not be further delayed.
(ix) The judge considered that this application for wasted costs was "not in any way an exceptional case". With respect, I do not agree. Given that the judge discharged the jury in circumstances in which the Crown and the defendant in the criminal trial were ad idem in considering that the jury need not and should not be discharged, and the other circumstances of this case, the challenge to the reasonableness of that decision is, in my view, exceptional.
(x) The wasted costs application raises no particular difficulties in scope. It turns on two sentences in the claimant's closing speech and, although it requires some background in relation to the first trial, the extent of that is very limited. This is not a case, such as Re Freudiana, in which the complexities of the litigation and scope of the allegations are such that no judge other than Judge D could deal with the wasted costs order.
(i) granting permission to judicially review:
(ii) allowing the application for permission to judicially review:
(iii) quashing the decision of Judge D to refuse to recuse himself: and
(iv) requiring that all issues and matters relating to the wasted costs application initiated by the court shall be dealt with by a judge other than Judge D.
Particulars of the allegation
"The jurisdiction to make a costs order is a summary jurisdiction. It follows, first that the hearing should be short; secondly, that the procedure followed should not be unduly elaborate; thirdly, that the jurisdiction should only be exercised in a reasonably plain and obvious case."