Re A Barrister (Wasted Costs Order) (No. 1 of 1991)
| Jurisdiction | England & Wales |
| Date | 1992 |
| Court | Court of Appeal (Criminal Division) |
Crime - Costs - Wasted costs order - Judge disallowing unspecified part of counsel's brief fee - Whether order rightly made - Procedure to be followed - Whether costs payable out of central funds to successful appellant -
A court contemplating a wasted costs order under section 19A of the Prosecution of Offences Act 1985 should formulate concisely the complaint and the grounds upon which the order may be sought. The court should inquire whether there has been an improper, unreasonable or negligent act or omission, whether costs have been incurred as a result, and, if so, whether the discretion to make an order should be exercised. Proposals for a settlement are inappropriate, and the court must specify the sum to be disallowed (post, pp. 667G–668D).
Where, therefore, a barrister appealed against an order disallowing an unspecified part of his brief fee: —
Held, allowing the appeal and quashing the order, that the judge had failed to specify the fees to be disallowed and had adopted an inappropriate procedure; and that, in any event, there had been no unreasonable act or omission capable of founding an order under section 19A of the Act (post, pp. 665G–666B, G).
Per curiam. Consideration should be given to the lack of jurisdiction to make an order for the payment of costs from central funds, since otherwise a successful appellant will have to bear his own costs (post, p. 668E–F, H).
The following cases are referred to in the judgment:
Holden & Co. v. Crown Prosecution Service (No. 2) [
Practice Direction (Crime: Costs) [
No additional cases were cited in argument.
Appeal against wasted costs order.
On 16 October 1991, after a hearing in chambers to consider wasted costs after the jury in a criminal trial had been discharged and a retrial ordered, Judge MacRae made an order against the appellant, H., a barrister who had acted as defence counsel at the trial, disallowing “such part of the brief fee which would otherwise have been payable on the initial trial as exceeds what would be the proper enhanced refresher for the retrial …” under the provisions of section 19A(1) of the Prosecution of Offences Act 1985, as inserted by section 111 of the
The facts are stated in the judgment.
Anthony Thornton Q.C. and Alison Levitt for the appellant.
Stephen Richards for the Lord Chancellor's Department.
15 April. Macpherson of Cluny J. read the following judgment of the court. This is an appeal against a wasted costs order made on 16 October 1991 by Judge MacRae, sitting in the Crown Court at Kingston-upon-Thames. The appeal is allowed, in the circumstances which follow.
It is the first such appeal, and it is made under the provisions of section 19A of the Prosecution of Offences Act 1985, which section was incorporated into that Act by section 111 of the
“19A(1) In any criminal proceedings — (a) the Court of Appeal; (b) the Crown Court; or (c) a magistrates' 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. (2) Regulations shall provide that a legal or other representative against whom action is taken by a magistrates' court under subsection (1) may appeal to the Crown Court and that a legal or other representative against whom action is taken by the Crown Court under subsection (1) may appeal to the Court of Appeal. (3) … ‘wasted costs’ means any costs incurred by a party — (a) 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 (b) 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.”
Thus a new uniform personal costs order regime is prescribed. All courtroom advocates of all kinds are susceptible to wasted costs orders.
The “legal representative” concerned in this case is a barrister, who was instructed (with legal aid), to defend a woman called Princess Tucker at Kingston-upon-Thames Crown Court in September 1991. She was indicted with her son, Johannes Fowler, on two alternative counts under section 18 and 20 of the Offences against the
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