Angela Taylor Solicitors, R. v

A wasted costs order requires conduct meeting the applicable statutory and procedural threshold. An error by solicitors, even where it causes another party to incur unnecessary costs, does not justify the order unless it amounts to serious misconduct or a sufficiently serious improper, unreasonable or negligent act or omission.

The adequacy of office arrangements may be relevant. However, a failure to identify and answer an urgent fax while the responsible solicitor is absent may remain a mere mistake. The court also doubted that sending a draft witness summons necessarily imposes a duty to notify its recipient that the application was refused.

The Manchester Crown Court made a wasted costs order of £1,550 against Angela Taylor Solicitors, who acted for a defendant in criminal proceedings.

The firm had sent a local authority a draft witness summons seeking material thought capable of assisting the defence. The application was refused. The local authority was not told of the refusal, and its attempts to contact the firm by telephone and fax received no response before it attended court by counsel unnecessarily.

The appeal concerned whether the firm’s failure was sufficiently serious to support a wasted costs order, or was instead a mere mistake.

1. Appeal allowed. The wasted costs order could not stand. The Court of Appeal held that the relevant omission was an error, but it was not properly characterised as a serious error or, more importantly, serious misconduct.

2. The Crown Court had proceeded on the basis that, having initiated the proposed witness-summons process, the solicitors were obliged to tell the local authority that the application had been refused. The court was not satisfied that such an obligation existed.

3. The proper focus was instead on the absence of arrangements to identify and respond to an incoming fax when the responsible solicitor was out of the office on the Friday before a bank holiday. That failure had caused the local authority’s unnecessary attendance. It was nevertheless a mere mistake rather than conduct meeting the threshold for a wasted costs order under Prosecution of Offences Act 1985 and the Practice Direction (Costs in Criminal Proceedings) [2004] 2 All ER 1070.

4. The order was to be quashed. The court declined to order that the appellant’s pro bono costs be paid from Central Funds.

• Court of Appeal (Criminal Division) — allowed the appeal and quashed the wasted costs order: [2008] EWCA Crim 3085.

• Manchester Crown Court — on 19 June 2008, made a wasted costs order of £1,550 against Angela Taylor Solicitors.