Thomas Boyd Whyte Solicitors v Haskell Solicitors, Re

A wasted costs order under section 19A of the Prosecution of Offences Act 1985 requires a fair procedure. The court must determine whether the statutory power arises, give the affected person a full and fair opportunity to answer the complaint and address causation and discretion, and then decide whether to make an order.

The three-stage approach and the relevant practice direction are guides to fairness rather than rigid formalities. A departure from their precise procedure does not invalidate an order unless it produces unfairness. Adequate notice of the proposed order, its basis and the anticipated costs may permit written representations to suffice. An oral hearing is not required where no substantive issue or request for one is raised.

These were two appeals against wasted costs orders made by judges at Maidstone Crown Court.

In the first, Thomas Boyd Whyte Solicitors had opposed a late application for special measures. After they did not provide further written submissions requested informally by the judge, the judge determined the substantive application and, without prior notice, made a wasted costs order of £100.

In the second, Haskell Solicitors failed through negligence to prepare a defendant's evidence for confiscation proceedings. The resulting adjournment led the judge to make a provisional wasted costs order. The solicitor was given seven days to show cause in writing and later became subject to a final order for £93.

The central issue was whether the procedures adopted by the two Crown Court judges were fair.

1. The appeal of Thomas Boyd Whyte Solicitors was allowed and the £100 order was quashed. The appeal of Haskell Solicitors was dismissed.

2. The court applied the three-stage approach first adumbrated in Re a Barrister (Wasted Costs Order) (No.1 of 1991) [1992] 95 Cr.App.R 288. The court must determine whether section 19A confers power to make an order, ensure that the affected person has a full and fair opportunity to answer the complaint and address wasted costs, and then decide whether to exercise its discretion. The approach and Part 8 of the Practice Direction were expressions of common sense. Exact procedural compliance was unnecessary, but the procedure adopted had to be fair.

3. In the first appeal, the solicitors had received no notice that the judge was considering a wasted costs order. They had no proper opportunity to obtain instructions, explain the absence of further submissions, contest whether there were any wasted costs, or address discretion. In particular, the substantive application had been dealt with that morning without an adjournment. The order was therefore procedurally unfair and could not stand, irrespective of whether there had otherwise been a proper basis for one.

4. In the second appeal, the solicitor accepted negligence. The judge's use of the term provisional order gave clear notice that an order was contemplated, the negligent omission relied upon, and the costs said to have resulted from the need for a further hearing. The solicitor had a full opportunity to make representations in writing. His letter was a plea in mitigation and did not raise a substantive causation issue or request an oral hearing. The judge was not obliged to direct one.

5. The expression in principle did not create unfairness. It reflected that the precise counsel's fees had not yet been supplied. Once the amount was known, the final order could properly be made.

• Court of Appeal (Criminal Division) — In [2007] EWCA Crim 2740, the court quashed the order against Thomas Boyd Whyte Solicitors and dismissed the appeal of Haskell Solicitors.
• Crown Court at Maidstone — His Honour Judge Lawson QC made a £100 wasted costs order against Thomas Boyd Whyte Solicitors. In separate confiscation proceedings, His Honour Judge McDonald QC made a £93 wasted costs order against Haskell Solicitors.