Patel, Re defendant's cost order

A court that made a defendant’s costs order may reconsider the application where, at an ex parte hearing, the applicant’s solicitors failed to disclose material information known only to them. That jurisdiction existed without deciding whether an exceptional-circumstances test for reopening a final order applied. The court making the order must address whether the claimed expenses were properly incurred and reasonably sufficient, or allow the determining authority to assess that question. A claimant must also identify special circumstances material to a costs claim.

Mr Patel’s conviction appeal had succeeded after he had pleaded guilty in the Crown Court. The Court of Appeal then made a defendant’s costs order in his favour. His solicitors later submitted a claim for more than £2.37 million in Crown Court profit costs.

The Court learned that an earlier oral agreement had capped those costs at £275,000, and that the cap was said retrospectively to have been removed shortly before the successful appeal. It ordered an affidavit and a hearing because that history had not been disclosed when the costs order was sought. The central issues were whether the court could revisit the application and whether the assessment should instead proceed before the Registrar.

Decision

1. The court confirmed the defendant’s costs order. It allowed the statutory assessment to continue before the Registrar of Criminal Appeals, while drawing the Registrar’s attention to the ruling and inviting such enquiries as appropriate.

2. The application for the order had been made ex parte. The solicitors had failed, whether deliberately or otherwise, to disclose information solely within their knowledge concerning the earlier cap, its purported removal, and the retrospective increase in fees. That failure gave the court jurisdiction to reconsider the application. It was unnecessary to decide whether the exceptional-circumstances test considered in Taylor v Lawrence [2003] QB 528 applied.

3. Under section 16(6), the court making a defendant’s costs order must consider whether the claimed expenses were properly incurred and whether they were reasonably sufficient compensation. Had the material history been known, the court would have had to determine whether the much larger fee had been properly incurred or direct the determining officer to consider it.

4. The court did not determine whether there had been deliberate deception. The issues required further investigation and could properly be addressed during assessment. The Registrar was the determining authority under the Costs In Criminal Cases (General) Regulations 1986 and could refer the matter to the appropriate authorities if a prima facie case of deliberate deception emerged.

5. The undisclosed history was a special circumstance that should have been specified when the claim was made. The solicitors therefore failed to comply with Regulation 14(4).

• Court of Appeal (Criminal Division) The court allowed Mr Patel’s earlier conviction appeal, with reasons handed down at [2009] EWCA Crim 2311. It later made a defendant’s costs order. In this ruling, it confirmed that order but directed that assessment continue before the Registrar.

• Crown Court at Kingston After a ruling that he had no defence, Mr Patel pleaded guilty to two counts, was fined and made subject to a confiscation order. The prosecution offered no evidence on more serious counts.