Thomas Boyd Whyte Solicitors v Haskell Solicitors, Re [2007] EWCA Crim 2740

No: 200703403 & 200703421 D5[2007] EWCA Crim 2740
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 22nd October 2007
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LATHAM
Vice President of the Court of Appeal Criminal Division
MR JUSTICE BURTON
MR JUSTICE TEARE
Between
RE: THOMAS BOYD WHYTE SOLICITORSHASKELL SOLICITORS
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr S Gledhill appeared for First AppellantMr M E Haskell appeared for Second Appellant
Judgment

LORD JUSTICE LATHAM:

[1]Before us this morning are two appeals against wasted costs orders made against solicitors, pursuant to the provisions of section 19A of the Prosecution of Offences Act 1985. In both cases the sums in question are small. In relation to Thomas Boyd Whyte solicitors, the sum was £100. In the case of Haskell, the sum is £93. Nonetheless, both solicitors are concerned that the appropriate procedures were not complied with in relation to the way in which the orders were made and they are entitled, in those circumstances, to appeal to this court.[2]It is unnecessary for the purposes of these appeals to reiterate in detail the jurisprudence relating to the making of wasted costs orders. That is now a matter well known to the courts, and indeed to the profession. The essential steps which have to be taken by the court considering whether or not a wasted costs order should be made are, firstly, to determine whether or not the requirements of section 19A have been met so as to empower the court to make such an order. Then the question is the way in which the court can ensure that the person or persons against whom it considers it has that power have a full and fair opportunity to answer the complaint that is made in respect of their conduct, and to argue as to whether or not in truth there has been any wasted costs. Finally, the court should determine whether it should exercise its discretion to make an order against that person. That has been described as a three stage test and was first adumbrated in Re a Barrister (Wasted Costs Order) (No.1 of 1991) [1992] 95 Cr.App.R 288 and [1993] QB 293.[3]It should, however, be stated that that three stage test, and indeed the provisions of the Practice Direction (Costs in Criminal Proceedings) [2004] 2 AER 1070, and in particular Part 8, set out matters which are essentially common sense. The mere fact that a court does not follow precisely the procedure indicated will not in itself be fatal to any subsequent order made by the court.[4]The power to make an order has been established. The only question thereafter is whether or not the procedure adopted has been fair.[5]It is in that context that we turn to the individual appeals. Firstly, in so far as Thomas Boyd Whyte is concerned, they were a firm of solicitors who represented two defendants charged with various sexual offences on a female child under the age of 13. During the pre-trial period, the Crown served out of time an application for special measures to be put in place in respect of the mother of the child complainant. Shortly after that application had been made, the solicitors served notice on the Crown Court that the special measures application was opposed as it was out of time and the Crown's reasons for the extension of time was not accepted. Six days after they had given that notice, they received a telephone message from a clerk at the Maidstone Crown Court confirming receipt of the notice and stating that the judge, His Honour Judge Lawson QC, requested further written submissions to be lodged by 18th May 2007. This was recorded on an attendance note in the file. It should be noted that there was no formal court order to that effect.[6]There were then notifications as to the date for the hearing, which ultimately took place on 14th June 2007. The solicitors had not, however, by that date submitted any further written submissions as requested by the judge. That day the judge granted leave to make the special measures application out of time, and then proceeded to deal with, on his own motion, the wasted costs order against which the appeal has been brought. There had been no notification to the solicitors or to counsel before the day of the hearing that the judge had in mind any wasted costs order. The judge, however, having determined the substantive issue proceeded to make the wasted costs order simply on the basis, in his judgment, that there had been an unexplained failure to provide those written submissions.[7]Mr Gledhill, who appears for those solicitors before us today as he did before the judge, in the sense that he was then acting for the relevant defendants, submits that the procedure adopted by the judge was unfair. They had not been provided with any prior notification that the judge was considering making a wasted costs order. Mr Gledhill therefore had no opportunity to take instructions in relation to the circumstances. He was not in a position to indicate to the judge why there had been no further submissions, but in particular he was given no opportunity to argue the question as to whether or not, even if there had been fault on the solicitors' part, there were in truth any wasted costs. The judge, it will be remembered, had been able to deal with the application that morning. There had been no necessity for an adjournment.[8]We have no hesitation in concluding that the procedure was indeed unfair. Leaving aside for the moment the question as to whether or not there was any proper basis for making a wasted costs order on the basis that there had been misconduct, unreasonable behaviour or negligence, the order was made by the judge without giving the solicitors any opportunity to make proper and considered representations against the order ultimately made. In those circumstances, that order cannot stand and is quashed.[9]Turning to the appeal by Mr Haskell, that arose out of another case before the Maidstone Crown Court but before a different judge, His Honour Judge McDonald QC. It arose in relation to confiscation proceedings which were consequent upon the conviction of a defendant, Mr Newman, and a co-defendant of two counts of theft on 2nd January 2007. The prosecution having indicated that it wished the judge to make a confiscation order under section 6 of the Proceeds of Crime Act 2002, the procedure for the making of such an order was put in train. The original hearing date was fixed for 3rd April and the prosecution was ordered to serve its statement of information by 13th February. They did not do so.[10]The responsible fee earner in the appellant's office sent a letter to the Crown on 14th March requesting service of the relevant documents and eventually notified the court that the prosecution had failed to make appropriate disclosure and requested that the confiscation hearing be vacated due to insufficient time for the defence to respond. The document in fact detailing the material arrived on 23rd March, and in response to the request to vacate the court vacated the hearing and refixed it for 30th April.[11]The co-defendant's statement in response to the Crown's statement was served, effectively saying that the co-defendant had no assets. No statement was served on behalf of the defendant, Mr Newman, the position being that, erroneously and without proper consideration, the fee earner had assumed that Mr Newman had no assets like the co-defendant. That was incorrect. He had a valuable motor car and a share in a house. That became apparent at the hearing on 30th April. It was clear as a result that, although the matter could be dealt with so far as the co-defendant was concerned, because without having any assets there was no substantial order that could be made, nonetheless the matter had to be adjourned for determination of the issue in relation to Mr Newman. The judge determined that there was indeed no option but to adjourn; and a date was fixed with a time estimate of one day. Parenthetically, it would appear that only half a day was required, but there is no doubt that the judge was confronted with the fact that, on the face of it, the court had had to make provision for two separate hearing dates instead of the one.[12]The result was that after hearing the application for an adjournment

the judge said as follows:

"All that remains is for me to make a provisional wasted costs order, which I do. There is a provisional case, that the case handler at Haskell and Company, whom I shall require to be identified by name, is guilty of an unreasonable or negligent omission, either to prepare the defendant's evidence in accordance with the court's directions or to notify the court of a substantiated and reasonable inability to do so in time for this fixture to be de-listed. He or she has seven days in which to show cause to me by letter why I should not make a wasted costs order. Provisionally the costs are certainly both your brief fees [that is, counsels'] and I suppose an attendance fee for whoever sits behind you."
The relevant fee earner (and indeed, in a note, counsel) reported to Mr Haskell that the judge had made such a provisional order; and the consequence was that Mr Haskell wrote a letter dated 4th May 2007 to the judge in which he explained how the situation had arisen. He made it plain that his firm accepted unreservedly that steps should have been taken to obtain Mr Newman's detailed instructions and it had failed to do so:
"By way of explanation rather than excuse, it seems that the combination of late service of papers and lack of experience caused the necessary work on Mr Newman's file to be overlooked."
The letter went on to underline the fact that this was a mistake which was one which was not typical of his firm's conduct of business as the judge he hoped would appreciate. The last paragraph reads as follows:
"May I repeat my apology for the inconvenience caused to the court and the Crown. I would be pleased to attend the court in person should Judge McDonald require me to do so. Please do not hesitate to contact me if I can be of further assistance in any way."
The response from

the judge on 14th May 2007 was:

"On 02/04/2007 Mr Newman was ordered to serve his defence statement by 24/04/2007 with the hearing fixed for 30/4/2007. Absolutely nothing was done. This is a straightforward case of an unreasonable or negligent omission to make any proper preparation of Mr Newman's case in the confiscation proceedings leading directly to an adjournment and to the waste of costs. There is no reason not to make a wasted costs order against Mr Haskell, which I now do in principle make."
Subsequently, an order was made on 25th May 2007, which is the substantive order against which this appeal is brought, ordering Mr Mark Haskell, the principal of Haskell and Company, to pay £93 wasted costs of 30th April 2007.[13]Mr Haskell, on behalf of himself and his firm, has accepted before us that the judge undoubtedly had power to consider a wasted costs order in the sense that he accepts that the firm, through its relevant fee earner, had been negligent. However, he submits that the procedure adopted was one which was wholly incorrect. He submits that neither the rules nor the practice direction makes any reference to 'provisional' orders or 'orders in principle'. He submits that the requirements of fairness dictate that if there is to be an order made in such circumstances there should be an oral hearing. He should accordingly have been entitled to appear before the judge and argue the two aspects which he submits would have been relevant, firstly, as to whether in truth there had been any wasted costs on the basis that had a defence statement been submitted, there would have inevitably had to have been a further hearing because of the length of enquiry that was necessary beyond that which was necessary for the co-defendant. He submits further that he should have been entitled to make such further arguments as he might consider appropriate to persuade the judge that in the exercise of discretion a wasted costs order was unnecessary in all the circumstances of the case.[14]We return to what was said at the beginning of this judgment in relation to the general principles. It having been accepted by Mr Haskell on behalf of himself and his firm that there had indeed been negligence, the sole remaining question, in essence, is whether or not the procedure followed was fair. The judge, in using the phrase 'provisional order', was making it plain that he was putting the appellant on notice, unlike in the other appeal, that he was minded to make a wasted costs order. The basis of it was plain, namely that the result of the negligence on the part of the fee earner was that a further hearing had become necessary. He was accordingly put on full and proper notice as to the basis upon which the wasted costs order was considered appropriate and the basis upon which it would be calculated, subject to any submissions that Mr Haskell might consider appropriate. Mr Haskell was accordingly given a full opportunity to make representations. The letter in which he made those representations was essentially a plea in mitigation; a not inelegant plea but nonetheless a plea in mitigation.[15]The letter does not contain any arguments of substance as to why no order should be made, in particular in relation to causation. It does not indicate to the judge that Mr Haskell was requiring, for any particular reason, an oral hearing. It simply indicated that he would be willing to attend if the judge considered it appropriate. The judge having received that letter was not, in our view, required to conclude that any issue was being raised by Mr Haskell as to which an oral hearing would have been either appropriate or necessary. In those circumstances, the judge was fully entitled to take the view, as he did, that he could move to make a wasted costs order. He did so at that stage "in principle" simply because he had not, by then, been told what precise sums counsel had been paid for the hearing in question. That having been resolved, the final order was made. There was no unfairness in that respect because the basis upon which the judge was intending to make the order had at all times been made clear to Mr Haskell, who could not therefore have been under any misapprehension as to the extent of the costs liability to which he would be exposed on the making of the order.[16]For those reasons we do not consider that there was any unfairness which could justify the conclusion that the order made by the judge was one with which this court could or should interfere. In those circumstances, this appeal is dismissed.[17]Are there any further orders, Mr Gledhill?[18]MR GLEDHILL: My Lord, I do not believe that there are. We have incurred costs in terms of retrieving transcripts but they cannot be recovered. The £100 wasted costs, as I am instructed, has not yet been paid therefore that does not need to be recovered and I act on a pro bono basis. My understanding is there are no further orders to be made.

LORD JUSTICE LATHAM: It is to your credit, Mr Gledhill. Thank you very much for your written submissions.

[20]MR GLEDHILL: I am obliged.

LORD JUSTICE LATHAM: Thank you, Mr Haskell, for your help too.