Practice Direction (Costs in Criminal Proceedings) 2015
| Jurisdiction | England & Wales |
| Judge | Lord Chief Justice of England and Wales |
| Judgment Date | 29 September 2015 |
| Neutral Citation | [2015] EWCA Crim 1568 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 September 2015 |
[2015] EWCA Crim 1568
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Chief Justice of England and Wales
PRACTICE DIRECTION (COSTS IN CRIMINAL PROCEEDINGS) 2015
CONTENTS
PART 1: GENERAL
| 1.1 | Preamble |
| 1.2 | The Power to Award Costs |
| 1.3 | Extent of Orders for Costs from Central Funds |
| 1.4 | Amount of Costs to be Paid |
| 1.5 | Criminal Procedure Rules |
PART 2: COSTS OUT OF CENTRAL FUNDS
| 2.1 | In a magistrates' court |
| 2.2 | In the Crown Court |
| 2.3 | In the High Court |
| 2.4 | In the Court of Appeal (Criminal Division) |
| 2.5 | Costs of Witness, Interpreter or Medical Evidence |
| 2.6 | Private Prosecutor's costs from Central Funds |
| 2.7 | Procedure |
PART 3: AWARDS OF COSTS AGAINST DEFENDANTS
PART 4: OTHER COSTS ORDERS
| 4.1 | Costs Incurred as a Result of Unnecessary or Improper Acts or Omissions |
| 4.2 | Costs Against Legal Representatives-Wasted Costs |
| 4.3 | Disallowance of Criminal Legal Aid Costs |
| 4.4 | Very High Cost Cases |
| 4.5 | Wasted costs orders in the High Court |
| 4.6 | Awards of Costs against Solicitors under the Court's Inherent Jurisdiction |
| 4.7 | Awards of costs against Third Parties |
PART 5: ASSESSMENT OF COSTS
| 5.1 | Assessment of defence costs out of central funds |
| 5.2 | Appeals to a Costs Judge |
| 5.3 | Supporting Papers |
| 5.4 | Time Limits |
| 5.5 | Appeals to the High Court |
PART 6: CONTRIBUTION ORDERS AND RECOVERY OF DEFENCE COSTS ORDERS
| 6.1 | Contribution Orders in the Crown Court |
| 6.2 | Recovery of Defence Costs Orders on appeal |
PART 7: COSTS IN RESTRAINT, CONFISCATION OR RECEIVERSHIP PROCEEDINGS
| 7.1 | The Order for Costs |
| 7.2 | Assessment of Costs |
| 7.3 | Remuneration of a Receiver |
| 7.4 | Procedure on Appeal to the Court of Appeal |
PART 8: ADVICE ON APPEAL TO THE COURT OF APPEAL (CRIMINAL DIVISION)
PART 9: VAT
| 9.2 | VAT Registration Number |
| 9.3 | Action Before Assessment |
| 9.4 | Costs Where VAT Rate Changes |
| 9.5 | Apportionment |
| 9.6 | Disbursements |
| 9.7 | Legal Aid |
| 9.8 | Tax Invoice |
| 9.9 | Appeal |
| 9.10 | Vouchers |
| 9.11 | Solicitors and other litigants acting in person |
| 9.12 | Government departments |
Schedule 1 Relevant Regulations Relating to Costs in Criminal Proceedings
Schedule 2 Costs from Central Funds and Relevant Statutory Authorities
Schedule 3 Form of Notice of Appeal to a Costs Judge
Schedule 4 Form of Certificate (VAT)
Schedule 5 Form of application for a Costs Order
PART 1: GENERAL
1.1 Preamble
1.1.1 The Lord Chief Justice has power, including power under section 74 of the Courts Act 2003 and Part 1 of Schedule 2 to the Constitutional Reform Act 2005, to give directions as to the practice and procedure of the criminal courts. The following directions are given accordingly.
1.1.2 This Practice Direction replaces the Practice Direction (Costs in Criminal Proceedings) given on 7 th October, 2013 [2013] EWCA Crim 1632; [2013] 1 WLR 3255, as amended by the Practice Direction (Costs in Criminal Proceedings) Amendment No. 1 given on 23 rd July, 2014 [2014] EWCA Crim 1570; [2014] 1 WLR 3037.
1.1.3 This Practice Direction has effect in magistrates' courts, the Crown Court, the High Court and the Court of Appeal (Criminal Division) where the court, in the exercise of its discretion, considers an award of costs in criminal proceedings 1 or deals with criminal legal aid and recovery of defence costs orders. This Practice Direction is to be known as the Practice Direction (Costs in Criminal Proceedings) 2015. It comes into force on 5 th October, 2015.
1.1.4 Consequent on the rearrangement of the Criminal Procedure Rules in the Criminal Procedure Rules 2015, S.I. 2015/1490, the text of this Practice Direction is amended to bring up to date the cross-references to the Criminal Procedure Rules and other legislation which that text contains. In all other respects, the content of this Practice Direction reproduces that of the Practice Direction (Costs in Criminal Proceedings) of 2013, as amended by the Practice Direction (Costs in Criminal Proceedings) Amendment No. 1 of 2014, which it supersedes.
1.2 The Power to Award Costs
1.2.1 The powers enabling the court to award costs in criminal proceedings are primarily contained in Part II of the Prosecution of Offences Act 1985 ("the Act") (sections 16 to 19B), the Access to Justice Act 1999 and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (in relation to funded clients) and in regulations made under those Acts including the Costs in Criminal Cases (General) Regulations 1986, as amended ("the General Regulations"). References in this direction to sections and regulations by number alone are to the sections and regulations so numbered in the Act and the General Regulations unless otherwise stated. Schedule1 below sets out details of the relevant regulations.
1.2.2 Sections 16 and 16A of the Act make provision for the award of defence costs out of Central Funds (a defendant's costs order). Section 17 provides for an award of costs to a private prosecutor out of Central Funds. Section 18 gives power to order a convicted defendant or an unsuccessful appellant to pay costs to the prosecutor. Section 19(1) of the Act and Regulation 3 of the General Regulations provide for awards of costs between parties in respect of unnecessary or improper acts and omissions. Section 19A provides for the court to disallow or order a legal or other representative of a party to the proceedings to meet wasted costs. Regulations 3A to 3D of the General Regulations govern the making of wasted costs orders. Section 19B provides for the award of costs against third parties. Regulations 3E to 3I of the General Regulations apply to third party costs orders.
1.2.3 The Senior Courts also have the power under their inherent jurisdiction over officers of the court to order a solicitor personally to pay costs thrown away. The inherent jurisdiction of the court should be invoked only to avoid a clear injustice. 2 Where the legislature has stepped in with particular legislation in a particular area (e.g., the wasted costs provisions) then, within that particular area, the existing inherent jurisdiction will be ousted or curtailed, at any rate in
so far as the particular legislation is negative in character. 3 Given the present provisions relating to costs, the exercise of the inherent jurisdiction will occur only in the rarest of circumstances.1.2.4 Where the court orders a defendant to pay costs to the prosecutor; orders one party to pay costs to another party or a third party to pay costs; disallows or orders a legal or other representative to meet any wasted costs; or makes a defendant's costs order other than for the full amount; the order for costs must specify the sum to be paid or disallowed. Where the court is required to specify the amount of costs to be paid it cannot delegate the decision, but may require the appropriate officer of the court to make enquires to inform the court as to the costs incurred, and may adjourn the proceedings for enquiries to be made if necessary. The rules provide that a party who has incurred wasted costs should provide assistance to the court as to the amount involved: Criminal Procedure Rules, rule 45.8(5), 45.9(5).
1.3 Extent of Orders for Costs from Central Funds
1.3.1 Where a court orders that the costs of a defendant, appellant or private prosecutor should be paid from Central Funds, the order will be for such amount as the court considers sufficient reasonably to compensate the party for expenses incurred by him in the proceedings; unless the court considers that there are circumstances that make it inappropriate to allow the full amount in which event it will allow such lesser sum as it considers just and reasonable. This will include the costs incurred in the proceedings in the lower courts unless for good reason the court directs that such costs are not included in the order, but it cannot include expenses incurred which do not directly relate to the proceedings themselves, such as loss of earnings. Where the party in whose favour the costs order is made is legally aided, he will only recover his personal costs: see section 21(4A)(a) of the Act. Schedule 2 below sets out the extent of availability of costs from Central Funds and the relevant statutory authority.
1.3.2 If a defendant's costs order includes legal costs (sums paid for advocacy, litigation services or experts' fees) the order must include a statement to that effect.
1.4 Amount of Costs to be Paid
1.4.1 If the court does not fix the amount of costs to be paid out of central funds, the costs will be determined in accordance with the General Regulations by the appropriate authority. The appropriate authority will calculate the amount payable in respect of legal costs at such rates and scales as are prescribed by the Lord Chancellor. Where the court makes a defendant's costs order, or an order in favour of a private prosecutor, but is of the opinion there are circumstances which make it inappropriate that the person in whose favour the order is made should recover the full amount of the costs, the court may assess the lesser amount that would in its opinion be just and reasonable, and specify that amount in the order. If the court is not in a position to specify the amount payable, the Judge may make remarks which the appropriate authority will take into account as a relevant circumstance when determining the costs payable.
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