Walker, R. v

A wasted costs order requires an unnecessary or improper act or omission that reaches the requisite threshold. Grave impropriety is not required. However, an apparently ambiguous notice which causes a genuine misunderstanding may mean that a solicitor’s failure to secure representation does not meet that threshold.

Before making such an order, the court must identify the alleged omission with sufficient clarity and give the person concerned a fair opportunity to respond. Where the underlying information remains uncertain, the matter is not fit for adjudication.

A solicitor appealed against a wasted costs order of £53.48 made after he failed to attend the Crown Court to represent a client committed for sentence from the magistrates’ court.

The client’s notice referred to the week commencing 24 August 2009. The solicitor understood that a date would later be fixed within that week, whereas the Crown Court treated the matter as listed at 10 am on 24 August. The client attended but had no representation. The solicitor later attended, explained the position, and the sentencing hearing was moved.

The appeal, brought under regulation 2C of the Costs in Criminal Cases (General) Regulations 1986, raised whether the misunderstanding showed sufficient fault and whether the solicitor had been given adequate notice of the basis for a wasted costs order.

1. Appeal allowed. The court set aside the wasted costs order.
2. The court treated DPP v Denning [1991] 2 QB 532 as showing that regulation 3 does not require grave impropriety. It nevertheless requires an unnecessary or improper act or omission reaching a sufficient threshold.
3. On the facts, the terms of the committal notice were capable of creating genuine uncertainty about whether the matter had been listed for a specific date or was to be listed during the stated week. That genuine misunderstanding meant that the solicitor’s failure to ensure representation on 24 August did not justify the order.
4. Further, a person facing a wasted costs order must have a fair opportunity to answer the alleged omission. The basis of the proposed order had not been identified with sufficient clarity before the order was made. The relevant documents were obtained only afterwards. While the position remained uncertain, it was not appropriate to adjudicate on wasted costs.
5. The court added that solicitors should make timely enquiries where an order is ambiguous. That caution did not alter the conclusion in this short remand, where there was real uncertainty.

• Court of Appeal (Criminal Division): Allowed the solicitor’s appeal under the Costs in Criminal Cases (General) Regulations 1986 and set aside the wasted costs order.
• Crown Court: Made a wasted costs order of £53.48 against the solicitor following the absence of representation at the sentencing hearing. No citation was stated in the judgment.