Holden & Company v Crown Prosecution Service

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date10 November 1989
Judgment citation (vLex)[1989] EWCA Civ J1110-5
Docket Number89/1088
Date10 November 1989

[1989] EWCA Civ J1110-5



Royal Courts of Justice,


The Lord Chief Justice of England

(Lord Lane)

Lord Justice Lloyd


Lord Justice Stuart-Smith


Holden & Company
The Crown Prosecution Service
Robin Murray & Company
The Crown Prosecution Service
McGoldrick & Company
The Crown Prosecution Service
The Crown Prosecution Service
Steele Ford & Newton
The Crown Prosecution Service

MR. B. SPELLER (instructed by Messrs. Holden & Co., Hastings) appeared on behalf of Holden & Co.

MR. D.C. BURGESS (instructed by Messrs. Robin Murray & Co., London, S.E.18) appeared on behalf of Robin Murray & Co.

MR. W. McCORMICK (instructed by Messrs. McGoldrick & Co., London, S.E.8) appeared on behalf of McGoldrick & Co.

MR. M. GRIEVE (instructed by Messrs. Bradburys, London, S.E.5) appeared on behalf of Bradburys.

MR. B. SPELLER (instructed by Messrs. Steele Ford & Newton, Burnley) appeared on behalf of Steele Ford & Newton.

MISS J. BEALE (instructed by The Crown Prosecution Service) appeared on behalf of the Crown Prosecution Service.


This is the judgment of the Court. Lord Justice Stuart-Smith cannot be here, he is busy on other public duties.


Some doubt seems to have arisen as to the nature and extent of the Court's jurisdiction to order the solicitor in a criminal trial personally to pay the whole or some part of the costs of the prosecution.


We have accordingly been asked to consider these five separate cases, each raising the problem in a different form, in the hope that it might be possible to resolve some apparent difficulties.


That such a jurisdiction exists, there can be no doubt. The problem lies in determining, first, the nature and degree of fault on the part of the solicitor which is sufficient to justify the exercise of the jurisdiction; secondly, the purpose of the jurisdiction; thirdly, the extent to which the common law rules have, if at all, been modified by more recent rules and directions; fourthly, whether the jurisdiction in criminal trials differs from that in civil; and fifthly, who, if anyone, should be made respondent to any appeal.


1. The conduct which may give rise to the jurisdiction:


The locus classicus is Myers v. Elman (1940) A.C. 282. In that case a distinction was drawn between on the one hand "disgraceful or dishonourable conduct" such as might lead to the solicitor being struck off the Rolls or suspended, and on the other hand, misconduct or default or negligence in the course of proceedings. The former is strictly personal and relates to the solicitor. In the latter the primary purpose is not to punish the solicitor but to protect the client who has suffered and to indemnify the party who has been injured (per Viscount Maugham at page 288 et. seq.). Thus in the latter case the solicitor will be answerable for the defaults of his clerks.


Viscount Maugham further draws attention to the then Order 65 rule 11 of the Rules of the Supreme Court, which read as follows:

"If in any case it shall appear to the court or a judge that costs have been improperly or without any reasonable cause incurred, or that by reason of any undue delay in proceeding under any judgment or order, or of any misconduct or default of the solicitor, any costs properly incurred have nevertheless proved fruitless to the person incurring the same, the court or judge may call on the solicitor of the person by whom such costs have been so incurred to show why such costs should not be allowed as between the solicitor and his client and also (if the circumstances of the case shall require) why the solicitor should not repay to his client any costs which the client may have been ordered to pay to any other person, and thereupon may make such order as the justice of the case may require."

At page 292 of his speech Viscount Maugham says this:

"….the jurisdiction in question ought to be exercised only when there has been established a serious dereliction of duty as a solicitor either by himself or by his clerks."

Lord Atkin at page 303 said this:

"The Court is not concerning itself with a breach of duty to the other litigant but with a breach of duty to itself. Its jurisdiction is punitive…."


Later on the same page:

"….the judge laid down for himself a standard which was perhaps too favourable to the solicitor. 'By misconduct' he said, 'is meant something which should reasonably be regarded as disgraceful or dishonourable by solicitors of good repute; for example, wilfully misleading the Court in the conduct of a case.' I think this is too favourable, for it would appear from the cases that a breach of duty owed to the court committed by gross negligence may lead to the exercise of punitive jurisdiction."


Perhaps the most helpful passage is that in the speech of Lord Wright reported at page 319, where he says this:

"The underlying principle is that the court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, as was said by Abinger CB in Stephens v. Hill (1842) 10 M. & W. 28. The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor's duty to ascertain with accuracy may suffice…..It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity….".


The Chief Baron goes on to define the matter further.


We would define the conduct which gives rise to this jurisdiction as any conduct of a solicitor which involves a serious dereliction on the part of the solicitor of his duty to the Court. That formulation takes account of the dictum of Lord Denning, M.R. in R. & T. Thew Ltd. v. Reeves (No. 2) (1982) 1 Q.B. 1283 at page 1286 as follows:

"The cases show that it [the jurisdiction] is not available in cases of mistake, error of judgment or mere negligence. It is only available where the conduct of the solicitor is inexcusable and such as to merit reproof."


2. What is the object of the jurisdiction?


Despite the dictum of Lord Atkin in Myers v. Elman cited earlier, it seems clear that the object of the order is primarily to reimburse a litigant for costs which he has incurred because of the Solicitor's default (see Weston v. Central Criminal Court Administrator (1977) 1 Q.B. 32, at page 45 per Stephenson L.J.). The costs which the solicitor will have to pay from his own pocket will be those, and only those, which his default has caused. There is nothing to be added to that figure to mark the disapproval of the Court or by way of deterrence. To that extent the object of the jurisdiction is to compensate.


However there is a punitive element as May L.J. pointed out in Currie v. Law Society (1977) 1 Q.B. 990 at page 997, in that the solicitor is having to pay a bill which would otherwise have to be met by one of the parties to the litigation. There is also necessarily an element of deterrence in that solicitors will wish to avoid the expense and adverse publicity that the exercise of the Court's jurisdiction entails.


3. Has the common law rule been altered or modified by more recent rules of the Supreme Court and Practice Directions?


So far as criminal cases are concerned, it is necessary to consider the impact of paragraph 8.1 of the Practice Direction reported at (1989) 1 W.L.R. 625, at page 629:

"In addition to the power under regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 to order that costs improperly incurred be paid by a party to the proceedings, the Supreme Court (which includes the Crown Court) may in the exercise of its inherent jurisdiction over officers of the court order a solicitor personally to pay costs thrown away by reason of some improper act or omission on his part or that of his staff."


It is submitted to us that the effect of that Practice Direction is, or may be, to widen the duties as set out in Myers v. Elman, so as to enable the Court to assume jurisdiction where there has been no more than some improper act or omission, conduct in other words falling far short of "serious dereliction of duty" required at common law.


Support for the submission is to be found in the decision in Sinclair Jones v. Kay (1989) 1 W.L.R. 114, albeit that case involved a civil rather than a criminal matter. May L.J. delivering a judgment, with which Waite J. (the other member of the two-Judge Court) agreed, considered the effect of a change in the wording of Order 62 relating to this jurisdiction. The rule prior to 1986 had read (Order 62, rule 8):

"….. where in any proceedings, costs are incurred improperly or without reasonable cause or are wasted by undue delay or by any other misconduct or default, the court may make….. an order…".


The present version is contained in Order 62, rule 11:

".. where it appears to the court that costs have been incurred unreasonably or improperly in any proceedings or have been wasted by failure to conduct proceedings with reasonable competence and expedition, the court may…order…."


The words "by other misconduct or other default", it will be observed, have been omitted from the current rule.


Basing himself on that alteration in the wording of the relevant rule, and upon dicta in Countryside Properties v. Moore, Times Newspaper 30th January 1987, and In re F, Times Newspaper 25th August...

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