Solicitors Reeves & Co, R. v

A wasted costs order requires procedural fairness and a sound factual basis. The legal representative against whom an order is sought must receive notice of the case and a proper opportunity to answer it. Counsel acting for the client does not thereby represent the solicitors.

The court must identify the costs actually wasted by the relevant conduct before deciding whether the representative should bear all or part of them. A speculative assessment is insufficient. The relevant question is whether the lawyer fell below the reasonable standards expected of ordinary members of the profession. A decision to put the prosecution to proof, while retaining known material in reserve for a possible defence, may be professionally reasonable.

A firm of solicitors represented a defendant charged with fraud. At the plea and case management hearing, defence counsel disclosed the existence of two emails but did not provide copies. On the trial date, copies were supplied after the prosecution indicated that it would review the case if they were produced. The Crown then offered no evidence and the defendant was acquitted.

The Crown made an oral application for a wasted costs order against the solicitors under Regulation 3C of the Costs in Criminal Cases (General) Regulations 1986. The Crown Court made an order for £250, describing the failure to serve the emails earlier as negligent. The solicitors appealed, contending that the procedure was unfair and that their conduct was neither negligent nor unreasonable.

1. Appeal allowed; wasted costs order quashed. The solicitors received no notice that an order against them was sought. Defence counsel had made submissions, but did not represent the solicitors. The failure denied them the fundamental right to answer the allegation and was also contrary to the applicable procedure. It could not be excused by asserting that they had nothing further to say. They might, for example, have contended that they acted on counsel’s instructions.

2. The judge also failed to identify the costs actually wasted by the alleged conduct. Following Re a Barrister (Wasted Costs Order (No 1 of 1991)) [1993] QB 293, the court had first to determine the loss caused and then decide whether the representative should bear all or part of it. The judge made no proper analysis of causation or loss and instead selected £250 by guesswork. It was inappropriate for the Court of Appeal to determine disputed factual questions about loss for the first time.

3. On the merits, the solicitors’ conduct was not negligent. Applying the standard stated in Ridehalgh v Horsefield [1994] Ch 205, the question was whether the lawyer had fallen below the reasonable conduct expected of ordinary members of the profession. It was reasonable not to volunteer the emails where the Crown knew of them, did not seek them, and the defence reasonably considered that the prosecution might be unable to prove its case. Keeping the emails in reserve for a possible defence of honesty was a sensible strategy in the client’s interests.

• Court of Appeal (Criminal Division): Allowed the solicitors’ appeal and quashed the wasted costs order: [2011] EWCA Crim 819.
• Crown Court at Snaresbrook: Her Honour Judge Kamill made a wasted costs order of £250 against the solicitors after the prosecution offered no evidence at the defendant’s trial.