AB, R (on the application of) v X Crown Court

A Crown Court decision concerning a wasted costs application is ordinarily collateral to the trial on indictment and may therefore be amenable to judicial review. A representative defending such an application may raise the judge’s own conduct as a possible cause of the costs, including whether the judge acted unreasonably in discharging a jury.

Where a fair-minded and informed observer would conclude that there is a real possibility of bias, the judge has no discretion to continue. Practical inconvenience, cost or delay cannot justify continuation. The wasted costs jurisdiction is summary and should be used only in reasonably plain and obvious cases, on issues suitable for summary disposal.

AB, counsel in a criminal retrial before Judge D, challenged Judge D’s refusal to recuse himself from a wasted costs application which he had initiated. The application arose after Judge D discharged the jury following part of AB’s closing speech. AB intended to argue that the discharge was unnecessary and unreasonable, and that the judge’s decision, rather than AB’s conduct, caused any additional costs.

Judge D held that the discharge could not be challenged in the wasted costs proceedings and refused both to recuse himself and to provide further particulars. The central issues were whether the refusal to recuse was amenable to judicial review, whether the judge had erred in law, and what relief should follow.

1. Jurisdiction. The wasted costs jurisdiction under Prosecution of Offences Act 1985, section 19 A, is a separate and collateral jurisdiction. It does not concern the issue between the Crown and the accused formulated by the indictment. A refusal to recuse in such proceedings therefore fell outside the exclusion in section 29(3) of the Supreme Court Act 1981 and was amenable to judicial review.
2. Causation and judicial conduct. A wasted costs order requires a causal link between the representative’s improper, unreasonable or negligent conduct and the costs claimed. In deciding causation, the court may consider whether the judge’s own conduct was an intervening or alternative cause. There was no jurisdictional bar preventing a Crown Court judge from considering whether his discharge of the jury was unreasonable. The claimant was entitled to raise that issue in defence of the application.
3. Bias. The applicable test was whether a fair-minded and informed observer would conclude that there was a real possibility that the judge was not, or would not remain, impartial. If that test is met, recusal is mandatory. The judge’s proposed consideration of whether his own final decision was unreasonable created an obvious risk of bias. Judge D’s refusal to recuse proceeded from the erroneous premise that the claimant could not challenge the judge’s conduct.
4. Relief. Permission was granted and the judicial review claim was allowed. Judge D’s refusal to recuse was quashed, and all matters relating to the wasted costs application were required to be dealt with by another judge. The usual appellate remedy for a substantive wasted costs order did not provide an adequate alternative remedy against the interlocutory refusal to recuse.
5. Further particulars and summary procedure. The claimant was entitled to know the case he faced, but the extent of any further particulars was for the judge dealing with the wasted costs application. The court emphasised that the jurisdiction is summary, compensatory and also punitive, and should be confined to reasonably plain and obvious cases suitable for swift and economical disposal.

This was a first-instance judicial review in the Administrative Court. The challenged decision was Judge D’s decision in the X Crown Court refusing recusal and refusing further particulars.