Williams v Telefonica 02 UK Ltd

A solicitor who relies on expert advice remains responsible for assessing whether the expert has been properly instructed and whether the proposed course is relevant and proportionate. Reliance on professional advice and client instructions will not itself prevent a finding of unreasonable or negligent conduct. Where correspondence and prior experience show that an application is irrelevant, procedurally inappropriate and incapable of advancing the defence, persistence with it may justify a wasted costs order.

During criminal proceedings against Ricardo Williams, the court refused a witness summons directed to an employee of Telefonica O2 UK Ltd. The intended purpose was to secure access for the defence expert to inspect O2’s data-retrieval systems. The application was effectively concerned with inspecting a process at O2’s premises, rather than obtaining evidence from the summoned witness.

O2 sought its costs and a wasted costs order against Shah Solicitors, who acted for Williams. The issue was whether the solicitors had acted unreasonably and negligently in issuing and persisting with the summons despite prior correspondence, the prosecution’s position that the data might be incomplete, and an earlier ruling in R. v Davies.

1. Application and costs. The summons was inappropriate to the purpose for which it was issued and the application was pointless. O2 was therefore entitled to recover the costs incurred in relation to and resisting it.
2. Applicable test. Under the principles considered in [1996] 1 Cr. App. R. 248, a wasted costs order required a finding that Shah Solicitors had acted unreasonably and negligently. The relevant question was whether a reasonably careful and responsible solicitor, acting in the context of a serious criminal trial, would have proceeded in the same way.
3. Independent professional responsibility. Acting on expert advice and client instructions is not, by itself, unreasonable or negligent. An expert must be given accurate and current information. The solicitor must consider whether the advice addresses a relevant issue and must exercise an independent judgment rather than act as a mere conduit.
4. Application to the facts. The only live challenge concerned completeness of the call data, not its reliability. The expert’s requests principally concerned reliability and technical matters. The prosecution accepted that the data would not be presented as necessarily complete, so the proposed inspection could not assist the defence. The solicitors had also been warned by the earlier R. v Davies ruling that an application of this nature might be misconceived, unnecessary and disproportionate.
5. The letters of 28 November and 4 December 2008 provided two further opportunities to reconsider. The solicitors should have recognised that the expert had not been properly instructed, that his proposed inquiry was irrelevant, and that the summons should not be pursued. Their persistence was unreasonable and negligent.
6. Order. The wasted costs application succeeded. Shah Solicitors were ordered to pay O2’s wasted costs incurred after 17 November 2008, subject to detailed assessment if not agreed.