AB, R (on the application of) v X Crown Court [2009] EWHC 1149 (Admin)

[2009] EWHC 1149 (Admin)

Case No CO/3779/2009

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

QUEENS BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/05/2009

Before

MR JUSTICE HICKINBOTTOM

Between

The Queen on the application ofClaimant

ABClaimant

X Crown CourtDefendant

Sue Carr QC and Miles Harris (instructed by Reynolds Porter Chamberlain LLP) for Claimant

Pascal Bates (instructed by Treasury Solicitor) for Defendant

EF (instructed by the Revenue & Customs Prosecution Office) for Crown.

Hearing Hearing date: 15 May 2009

Judgment

Important Note

[1]In this application the claimant AB seeks to challenge the decision of Judge D on 27 March 2009 in the X Crown Court refusing to recuse himself from a wasted costs application he had initiated against the claimant, and also refusing to particularise further the basis of that application.

[2]On 1 May 2009, Davis J ordered a rolled-up hearing of the application for permission and, if granted, the substantive application for judicial review itself. At the hearing, Sue Carr QC and Miles Harris of Counsel represented the claimant. Pascal Bates of Counsel appeared for the defendant. He indicated that he had been instructed by the Treasury Solicitor for the Secretary of State for Justice (who is responsible for HM Courts Service, including the Crown Court), not actively to advocate on behalf of Judge D, but rather to assist the court and identify areas of concern for the wasted costs jurisdiction generally arising out of the claimant’s submissions. EF appeared for the Revenue and Customs Prosecution Office, which was directed to attend by Davis J.

The Facts

[3]The factual background is uncontentious. C and a co-accused were prosecuted for their alleged participation in a fraud. He was charged with a number of counts of fraud related offences. The first trial took place at X Crown Court in July 2007, before Judge D. At that trial, the claimant represented, not C, but his co-accused, who was acquitted on all counts. C was acquitted on some counts, but convicted on the others. However, the Court of Appeal quashed those convictions on the basis of a misdirection of the jury as to the mental element of the offences.

[4]The Court of Appeal ordered a re-trial of the remaining counts. The re-trial took place before Judge D during October and November 2008. The claimant was instructed by C to represent him at the re-trial. As at the first trial, EF appeared for the prosecution.

[5]The jury at the re-trial were inevitably going to know that there had been a previous trial, because the prosecution had served parts of the evidence of that trial upon which they intended to rely, particularly in the cross-examination of C. During the preliminary stages of the re-trial, an application was made on behalf of C for the jury to be told, not only that there had been an earlier trial, but also of his acquittal on some counts and the quashing of his conviction on the counts that they were being asked to consider. Judge D rejected that application ruling that, while the fact of a previous trial could be referred to, the verdicts could not. He ruled that the acquittals were irrelevant and inadmissible and that, despite the application made on C’s behalf, informing the jury of C’s earlier overturned convictions would be highly prejudicial to his defence.

[6]However, during the course of his cross-examination, C became animated and revealed to the jury his acquittal on some counts at the earlier trial. The judge indicated that he was satisfied that, in making this disclosure, C had not been intentionally trying to undermine the preliminary ruling on admissibility, and his doing so was attributable to his state of agitation during cross-examination. The jury sent a note to the judge shortly afterwards, asking him whether the previous acquittals were something they should take into account. In response, with the agreement of both Counsel, the judge amended his proposed draft direction, making it clear to the jury that the earlier acquittals were irrelevant to their considerations, and they must judge the case on the evidence they had heard at the re-trial and must not speculate on why the jury at the original trial had returned verdicts of not guilty on other counts.

[7]In the course of his closing on behalf of C, the claimant stated of C that:

“… 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…”

[8]The judge did not interrupt the speech but, at the end of it, he immediately expressed concern as to a number of statements made by the claimant, but particularly the two sentences I have quoted. He said that he would not take any decision until a transcript of the speech was available; but it might be necessary to discharge the jury, and that the claimant ought to notify his insurers.

[9]A few days later, with the benefit of a full transcript, the judge heard submissions from the claimant and EF for the prosecution on whether or not the jury ought to be discharged. Although EF indicated immediately after the claimant’s closing speech that he had difficulty in seeing how the damage caused by it could be repaired, by the time submissions were made on discharge both he and the claimant considered that the jury need not and should not be discharged, but the trial should continue with a careful direction in relation to the earlier trial. EF submitted that the jury ought to be directed so that they knew there was a first trial containing a number of counts, on some of which C was acquitted. The jury should be directed not to speculate in relation to the other counts not before them, and should disregard the claimant’s comments about the first trial made in his speech. The claimant, with the approval of C and his instructing solicitor, also submitted that any misleading impression that might have been given by the speech could be addressed by a modification to the judge’s summing-up. Before giving those instructions to the claimant, his instructing solicitor took advice from both partners within his own firm and the claimant’s junior, but not from independent counsel.

[10]Despite the shared desire of both prosecution and C for the re-trial to proceed, the judge decided to discharge the jury. He criticised the claimant’s summing-up in a number of respects, but would not have been minded to discharge the jury but for the passage quoted above. In relation to that passage, the judge said:

“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.”

[11]The jury were duly discharged - with a full explanation - and they left the court at 10.40am.

[12]The judge then immediately indicated that he was going to consider the question of a wasted costs order against the claimant. The claimant submitted at that stage that consideration of such an order ought to be dealt with by another judge. Judge D said that, whilst he would prefer that course personally, he understood that the trial judge had to deal with such applications himself. Correspondence ensued and, on 13 November, at the judge’s request the Criminal Listing Officer at X Crown Court wrote to the claimant stating that, having consulted with the Resident Judge, the judge’s current view was that only he could determine the wasted costs matter: but before taking any final decision, he would take into account any written or oral submissions that the claimant might wish to make.

[13]On 21 November, Reynolds Porter Chamberlain, solicitors appointed to act for the claimant through his insurers, wrote to the court asking for particulars of the basis of the proposed application for wasted costs including, in particular, “how the wasted costs are said to have been incurred as a result of the conduct relied upon.” They also indicated that it was likely that they would be inviting the judge to recuse himself, because the claimant’s case “is likely to include a direct challenge to the reasonableness of [the judge’s] decision to discharge the jury.”

[14]On 2 December, the Criminal Listing Officer again wrote to the claimant’s solicitors saying that the complaint against the claimant was:

“[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.

[15]By letter dated 22 December, the Claimant’s solicitors wrote to the defendant and, in accordance with the guidance in El-Farargy v El-Farargy

[2007] EWCA Civ 49

, informally requested the judge recuse himself or, if he felt unable to deal with the request himself, to pass it to another judge. They also said again that, if the wasted costs application proceeded, the claimant would directly challenge the reasonableness of the judge’s decision to discharge the jury and, if Judge D retained the application, this would require him to decide upon the reasonableness of his own conduct. They considered that this gave grounds for a real danger of bias if the judge proceeded with the application himself.

[16]Following further correspondence, on 4 February 2009 a formal application was made for the judge to recuse himself or alternatively to order that another judge hear the recusal application.

[17]Judge D heard that application on 18 March 2009. Reflecting the earlier correspondence, it was clear from the application itself and Miss Carr’s skeleton argument that it would be the claimant’s case that the decision to discharge the jury was unnecessary and unreasonable and that therefore the cause of the wasted costs was the judge’s decision to discharge the jury, rather than any conduct of the claimant. EF, who although not a protagonist in this costs issue appeared at the invitation of the court, also submitted that, in order for the court to make a wasted costs order, it had to be satisfied that the relevant costs flowed from the conduct complained of and not from some intervening cause: and the issue of causation was “very live”, particularly as the judge had arrived at the conclusion that the jury had to be discharged of his own volition, in the face of both parties agreeing that the jury need not and should not be discharged. In terms of causation, the argument of the claimant would be designed to show that the judge was unreasonable and wrong to discharge the jury. Given the judge’s settled conviction that they had to be discharged, EF submitted that a fair-minded and informed observer would say that the judge could not consider this issue without the appearance of bias: and consequently the application ought to be passed to another judge.

[18]During the hearing, the judge appeared to accept the force of those submissions saying: “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).

[19]However, in a reserved judgment, the judge rejected the claimant’s application and refused to recuse himself. In relation to the crucial issue of causation, he said (at paragraphs 4(ii) and 8):

“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 [1993] 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.”

[20]It is that decision that the claimant now seeks to challenge in these proceedings, in which three issues are raised, namely: 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

[21]Before I come to those specific issues, it would be helpful to deal first with the wasted costs jurisdiction, now derived from section 19A(1) of the Prosecution of Offences Act 1985 (inserted into that statute by section 111 of the Courts and Legal Services Act 1990). That provides that:

“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.

[22]Where a representative may have misconducted himself in the terms of section 19A(3)(a) then, either following an application or on its own motion, the court needs to consider whether to invoke the wasted costs jurisdiction. There are a variety of reasons why, in its discretion, the court may decline to do so. For example, it may be that any costs incurred as a result of any misconduct are nil or so small that it would not be proportionate to invoke the jurisdiction at all: or the issues involved may not lend themselves to the exercise of a summary jurisdiction such as that in section 19A (see Re Freudiana Holdings Ltd (Brolly v Eric Woolfson) (Unreported, 28 November 1995) (“Re Freudiana”, see further paragraph 34 below).

[23]Once the court decides that the jurisdiction should be invoked, before making an order against the representative, there is a three-stage test (Re A Barrister (Wasted Costs Order) (No 1 of 1991)

(1992) 95 Cr App R 288

;

[1993] QB 293

(“Re A Barrister”), Ridehalgh v Horsefield

[1994] Ch 205

, Re P (A Barrister)

[2001] EWCA Crim 1728

;

[2002] 1 Cr App R 19

(“Re P”) and the Practice Direction on Costs in Criminal Proceedings (“the Costs Practice Direction”) at paragraph VIII.1.4(iv)). The questions to be addressed are: 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.

[24]I now turn to the three issues in the application before me.

Does this Court have Jurisdiction?

[25]The current jurisdiction under which this court may review a decision of the Crown Court is found in section 29(3) of the Supreme Court Act 1981, which provides:

“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.”

[26]The Courts Act 1971 abolished both the Courts of Assize (a superior court of record) and the Courts of Quarter Session (an inferior court), establishing in their place the Crown Court which incorporated both jurisdictions. The Crown Court was declared by statute to be a superior court of record (Section 4 of the Courts Act 1971, now section 45(1) of the Supreme Court Act 1981). Although it was earlier suggested that, when the Crown Court was exercising the former jurisdiction of the Assize Courts, it (like the Assize Courts) could not be judicially reviewed (see, e.g. R v Sheffield Crown Court ex parte Brownlow

[1980] QB 530

), the 1971 Act replaced the High Court’s supervisory powers over the earlier jurisdictions with a statutory power initially set out in section 10 of the 1971 Act and now in section 29 of the 1981 Act (see Re Smalley

[1985] AC 622

at 641G and following, per Lord Bridge). The supervisory power of the High Court over the Crown Court is now found exclusively in section 29, without recourse to the earlier regime. The power to judicially review a decision of the Crown Court depends upon the proper construction of that section.

[27]Unfortunately, the scope of the section 29 has caused some difficulties, and has been the subject of considerable debate in a number of cases, including several in the House of Lords. Section 29(3) provides that there is a general supervisory power in the High Court over the Crown Court other than in “its jurisdiction in matters relating to trial on indictment”. The cases provide some assistance in the scope of the exclusion of the right to review. For example, the exclusion is to be narrowly construed (Smalley at page 643A per Lord Bridge, and R v Snaresbrook Crown Court ex parte Field (Unreported, 23 March 1994) (“ex p Field”) at page 9 per Rose LJ). Further, the purpose of the restriction in the statute is to avoid delay. As Lord Browne-Wilkinson explained in DPP v Manchester Crown Court and Huckfield

[1993] 4 All ER 928

(“Huckfield”) at page 933A:

“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.”

[28]In an attempt to assist in identifying matters which fell within the section 29(3) exclusion, Lord Bridge in Smalley (at page 643E) identified “helpful pointers”, namely if the decision was “closely related to trial on indictment” or “affected the conduct of the trial on indictment” then that pointed towards the decision falling within the ambit of the exclusion. Lord Browne-Wilkinson identified a further “pointer” in Huckfield, based upon jurisdiction. He said (at page 933H and following):

“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 [1974] 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 [1987] 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.”

[29]Therefore, if a decision is made in the Crown Court in a separate collateral jurisdiction to the primary jurisdiction to try proceedings on indictment, that is a pointer that the decision does not fall within the section 29(3) exclusion, and that judicial review is available. A further indicator is if the decision is made against a party other than the parties to the indictment.

[30]With that background, I now turn to the issue in this case: is the judge’s decision to refuse to recuse himself amenable to judicial review? I am of the view that it is, for the following reasons.(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

[1987] 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.

[31]For these reasons, as a matter of construction of section 29(3), I consider the decision to refuse to recuse falls outside the exclusion and, as a matter of jurisdiction, the decision is amenable to judicial review by this court.

Was the decision unlawful?

[32]I now turn to the merits of the application.

[33]The test for recusal on the grounds of bias is well-settled. A judge must bring an impartial mind to bear upon the adjudication of the issues before him: he must be open to persuasion by the evidence and the submissions. Therefore, if a fair-minded and informed observer would conclude that there is a real possibility that the judge has not had or will not in the future have such an impartial mind - and is therefore potentially biased, in that sense - then the judge is unable to continue to deal with the matter. In making that assessment, everything will of course turn on the facts of the particular case, including the nature of the substantive issue before the judge (Locabail (UK) Ltd v Bayfield Properties Ltd

[2001] 1 QB 451

at [25]). Throughout this judgment, I use “bias” in the sense of this legal test, to include the mere risk of bias.

[34]It is important to stress that, if such an observer would come to that conclusion, the judge has no discretion. He cannot continue. He must recuse himself, no matter what adverse practical consequences might arise: “Inconvenience, costs and delay do not… count in a case where the principle of judicial impartiality is properly invoked” (Sir Alexander Morrison v AWG Group Ltd

[2006] EWCA Civ 6

at [6]). In Re Freudiana, in respect of the wasted costs application made to him, Jonathan Parker J concluded that(i) no other judge could deal with the application, primarily because of the complexities of the underlying matters aired during the trial before him; and

(ii) he could not deal with that application, because it would involve him being required to adjudicate upon his own conduct during the course of the trial which rendered him potentially biased. The Court of Appeal held that in those circumstances the judge was right to dismiss the wasted costs application. In the face of potential bias, it was not open to him to continue to deal with the application even though no other judge could deal with the application which, as a result, inevitably could not proceed further. On a true reading, Re P at [44(5)] does not suggest that, if there is bias, the judge has a discretion as to whether to continue or not.

[35]It follows that, when an issue of bias is raised (or where the court of its own motion considers there may be such an issue), the judge must consider and make a finding as to whether a fair-minded and informed observer would conclude that there is a real possibility of bias.

[36]Miss Carr submitted that in this case the judge erred in failing to make any such finding and indeed, having set out the correct test in paragraph 3, his judgment failed to engage with the issue of bias at all. Mr Bates, in particularly helpful submissions, accepted that that was the case but, he said, on the judge’s analysis of the legal position, such engagement was not necessary. He submitted that, at the heart of the judge’s rationale was the premise that his decision to discharge the jury was a decision which could not be challenged by him or any other judge in the Crown Court either directly or collaterally. That was clear from paragraph 4(ii) of his judgment (quoted at paragraph 19 above). Consequently, in the Crown Court it was not open to the claimant to defend the application for wasted costs on the basis that the discharge of the jury was unnecessary and/or unreasonable. As the potential for bias only arose as a result of the judge being required to consider a challenge to his own decision to discharge, if that challenge could not be mounted as part of the defence to the application in the Crown Court, the potential for bias simply fell away. Bias of course must be considered in the light of the nature of the issues before the judge for determination.

[37]That indeed appears to have been the analysis of the judge. It explains why he did not engage with the issue of bias in his judgment, and also his comments during the exchange with EF in the course of the recusal hearing (transcript, page 34H-35D: it seems likely that the missing, inaudible words at page 35D are, “But nor can any other Crown Court judge”).

[38]Unfortunately, the premise relied upon by the judge as the foundation stone of the analysis (namely that, in considering a wasted costs application in the Crown Court, a Crown Court judge is barred from considering whether the conduct of the judge hearing the substantive matter was causative of the relevant costs) is false.

[39]In a wasted costs application, one crucial step towards the making of an order is that the representative’s misconduct caused the costs sought to be reimbursed (see paragraph 21 above). In determining whether the misconduct of a representative has caused any (and, if so, what) costs, consideration has to be given to whether there is any other cause for the expenditure of those costs. One such cause might be the conduct of the judge himself. In Re A Barrister, the relevant representative made remarks to the jury which the judge described as “grossly improper” and “outrageous”, which resulted in the judge discharging the jury and making a wasted costs order against the barrister. The Court of Appeal found that the barrister had not acted unreasonably, and not guilty of any conduct that could found a wasted costs order. However the court went on to say (page 300D):

“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.

[40]Mr Bates accepted that causation must be proved for the wasted costs jurisdiction to be exercised, and suggested that, on reading his judgment, Judge D also accepted that. However, the judge considered, and Mr Bates supported the proposition, that it would amount to an improper collateral attack on the decision to discharge the jury to allow the claimant to defend a wasted costs application against him on the basis that the cause of any additional costs was not his conduct but the (unreasonable) conduct of the judge in unnecessarily discharging the jury as he did. That was an issue that could only be considered by an appeal court.

[41]I cannot accept that submission.(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

[1977] 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 [44] 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”..

[42]I consider the judge’s approach in this case clearly flawed as a matter of law. It was not open to him to proceed with the wasted costs application he had instigated, but not allow the respondent to that application (i.e. the claimant in this claim) to defend himself by raising the issue of the judge’s own conduct. In defence of the wasted costs application, the claimant raised the issue of the judge’s own conduct (the reasonableness and necessity of his decision to discharge the jury when he did) both as showing that the cause of any additional costs was not caused by anything that he (the claimant) had done, and also as a factor in the exercise of the court’s discretion if causation be proved. I make no comment about the merits of that, except to say that it seems to me to be more than meritless. In those circumstances, a number of courses were properly open to the judge. All involved some consideration as to whether the test for recusal for bias was met. He could have considered that test himself, or (as advocated in El-Farargy) he could have passed the application for recusal to another judge. If, upon consideration, the judge determining the issue had decided that there was risk of bias, then two options lay open to him. Another judge could of course deal with the wasted costs application, and consider the claimant’s plea with regard to the judge’s conduct. In practice, as the application would require a consideration of the reasonableness and necessity of Judge D’s decision to discharge the jury, then it may have been preferable to have such an application dealt with by a judge senior to him (for example, a High Court Judge or possibly a Senior Circuit Judge): but that would be a matter of practicality and convention, rather than jurisdiction. Alternatively, much as Jonathan Parker J did in Re Freudiana, the judge could have taken the view that he could not deal with the application because of the risk of bias and, although not jurisdictionally barred, it would be inappropriate for any other Crown Court judge to consider the propriety of his conduct, in which case he would have been bound not to have proceeded with wasted costs application.

[43]For those reasons, I consider that the judge erred in law refusing to recuse himself as he did, his legal approach being in error.

[44]May I add this. The courts have been careful to set the hurdle for those alleging bias at an appropriate level. The fair-minded and informed observer is aware that robust judicial language and frank preliminary views are sometimes justified (see, for example, R v George

[2005] EWCA 2813

at [17]-[24] and El-Farargy at [25]-[27]). However, where a judge is asked to consider a final decision he has made in the circumstances of this case - and to consider whether that decision was unreasonable and/or unnecessary - it is difficult to see how even the most redoubtable observer could say that there were not grounds for potential bias. It is difficult to see how a judge could maintain an impartial mind so as to avoid the risk of his judgment being adversely affected. He may be slow to say that he was unreasonable. On the other hand, he may be overcautious to deny it.

[45]Judge D made it clear at the outset of the application that he would prefer not to deal with the wasted costs application. He was patently aware of the correct test for bias, which he set out in paragraph 3 of his judgment. Further, he made it clear during argument that, if he had not considered that no Crown Court judge could collaterally review his decision to discharge the jury in the context of a wasted costs application in which his conduct in the decision to discharge was in issue, he would have recused himself. He appeared to be in no doubt that, if he had to consider the reasonableness of that decision in the context of a wasted costs application, that would lead a fair-minded and informed observer to consider there was a risk of bias. That seems to me to be an entirely proper application of the legal test for bias. Mr Bates also accepted that would be the case and, if there were no bar to a Crown Court judge considering the reasonableness of the decision to discharge, he considered that the judge would have had no option but to recuse himself. For the reasons set out above, I consider that that concession was quite properly made.

What relief should be given?

[46]Relief in this court is of course discretionary. Given the decision not to recuse was unlawful, what relief (if any) should flow?

[47]As matter of policy and practice, the courts have taken a stance that a judge should recuse himself only in exceptional circumstances. That is reflected in paragraph VIII.1.5 of the Costs Practice Direction, especially at (v). However, as I have already indicated, when bias arises, a judge has no option but to stand down (see paragraph 34 above).

[48]This court having a supervisory jurisdiction and the judge having failed to recuse himself in circumstances in which he erred in law - and he himself having indicated would have recused himself on the basis of the law as I have interpreted it - is there any reason for not granting the claimant substantive and effective relief? I do not consider there is.

[49]Mr Bates submitted that there is an alternative remedy, namely a right of appeal to the Court of Appeal (see paragraph 21 above). That is true in respect of a wasted costs

[50]In the circumstances, I consider that, subject to any submissions in respect of the form of the order, the appropriate relief is as follows, namely an

[51]The claimant also seeks an order requiring Judge D to specify(i) which statements in the closing speech are relied upon in the wasted costs application, and

(ii) whether or not, in making the remarks to which objection is taken, the claimant faces an allegation that he deliberately acted to undermine the judge’s preliminary ruling and to mislead the jury. He refused to give further particulars in paragraph 7 of his judgment of 25 March 2009. That is the decision challenged.

[52]Whilst bearing in mind that the jurisdiction is a summary one, in defending the wasted costs application, the claimant is entitled to know the case he faces. As the Costs Practice Direction indicates (at paragraph VIII.1.4(i)), “There is a clear need for any judge or court intending to exercise the wasted costs jurisdiction to formulate carefully and concisely the complaint and grounds upon which such an order may be sought. These measures are draconian and, as in contempt proceedings, the grounds must be clear and particular”.

[53]The extent to which any further particulars are required is essentially a matter for the judge who deals with the wasted costs application. However, my views on the requests made, for what they are worth, are as follows.

[54]The passages of the claimant’s speech about which the court took objection are, in my view, clear from the judge’s judgment of 3 November. There is only on short passage, quoted in paragraph 7 above, which the judge considered was fatal in terms of requiring the jury to be discharged. In terms of causation, that is the only passage that could have caused any additional costs for which compensation may be due.

[55]However, whether or not the claimant faces a case that he deliberately misled the jury appears to me to be a vital matter. Parts of the judge’s ruling as to why he proposed to discharge the jury could suggest that he considered the claimant had deliberately undermined his earlier ruling and misled the jury (see, e.g., 3 November transcript page 11E). The claimant at the first opportunity stressed that he had no intention of doing either (3 November transcript, page 4B, 5D and 6E). Mr Bates submitted that, whether deliberate or not, the conduct alleged falls within the misconduct envisaged by section 19A. However, even if that be right, if there is an allegation on male fides in my judgment the claimant is entitled to know that and it is an important matter for the court to bear in mind when exercising its discretion as to whether to invoke the wasted costs jurisdiction at all. Section 19A is a summary jurisdiction, and it “should only be exercised in a reasonably plain and obvious cases” (Re Freudiana at page 28, per Millett LJ). The courts have said that it may be inappropriate to use the summary procedure when allegations of male fides against a legal representative (ibid at page 31). I do not make an order for particulars now, because that is a matter properly for the judge dealing with the wasted costs issue to consider: he may, for example, take the view that male fides should not pursued in any event (although I stress that that is not an indication that he should take that course).

[56]For those reasons, I will not make any order here for further particulars of the allegations the claimant faces in the wasted costs application.

Postscript

[57]It will be for the judge assigned to deal with this wasted costs application to determine whether this case is one where the jurisdiction should be invoked. Nothing I say should or, I am sure, will influence him to do other than exercise his independent judicial mind on the facts and circumstances of this case. However, looking at the four files of papers which have been lodged in relation to this interlocutory application within a wasted costs matter - and without laying any blame on anyone for the costs and time expended on this wasted costs application to date, which is at a relatively preliminary stage - I should like to underscore the essential characteristics of this jurisdiction.

[58]The courts have frequently stressed the quintessentially summary nature of the costs jurisdiction under section 19A, and what flows from that. In Re Freudiana (at page 28), Millett LJ said:

“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.”

[59]It is important that, “Costs applications should be confined strictly to questions which are apt for summary disposal” (Harley v McDonald

[2001] 2 WLR 1749

at 1768F per Lord Hope): and that the procedure is “swift, economical and effective. That means that it must retain its summary form.” (Re P at [52]). Where the subject matter is not appropriate for summary disposal, as Re Freudiana shows (see paragraph 34 above), then section 19A proceedings should not be instigated or, if begun, continued.

[60]Of course, although a wasted costs application is compensatory, it is also punitive: “… [I]ts purpose is to punish the offending practitioner for a failure to fulfil his duty to the court” (Harley v McDonald at 1768D per Lord Hope). However, it must be borne in mind that the summary procedure for wasted costs is not the only punitive sanction (and may not be the most appropriate sanction) for a representative who has misconducted himself, e.g. a reference to the appropriate professional regulatory body may be a more appropriate course (see Re A Barrister at page 300 E).

[61]When considering whether to invoke the section 19A wasted costs jurisdiction, and if so the appropriate procedure for dealing with it, I would urge courts to be sensitive both to the summary nature of the procedure and to alternative ways of dealing with apparent misconduct of representatives.

order

a representative who is the subject of such an order may seek to appeal. However, there is no appeal from what is effectively an interlocutory order, such as this. I do not consider that, in the circumstances of this case, the claimant ought to have to plough on through a wasted costs hearing before the judge, and then be required to appeal on the grounds that the judge was biased and failed to recuse himself, for these reasons:(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. 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