R. v SVS Solicitors

A legal representative who opposes hearsay evidence must comply with the procedural requirement to state the grounds of objection. Client instructions and professional privilege do not justify withholding the part of the defence case necessary to explain the objection. If a client refuses to permit compliance, the representative should cease to act.

A deliberate and serious failure to comply may be improper, unreasonable and negligent for the purposes of a wasted costs order, rather than a mere error of judgment. Causation is a factual question to be determined on the balance of probabilities, taking account of what actually occurred.

The appellant solicitors represented a defendant charged with aggravated burglary. The prosecution served a hearsay notice concerning a witness who was in Australia. The solicitors did not serve a compliant application stating their grounds of objection, but maintained that the witness was essential to the defence. The witness was flown to England to give evidence.

At trial, a late defence statement advanced one account of events. The following day, after new representatives were instructed, the defendant advanced a materially different account. The Crown Court ordered the appellant to pay the costs of the witness’s attendance. The appeal challenged causation and whether the solicitors’ conduct was improper, unreasonable or negligent.

1. Appeal dismissed. The Crown Court was entitled to make a wasted costs order against the appellant solicitors.

2. The statutory jurisdiction under section 19A of the Prosecution of Offences Act 1985 requires consideration of whether there was an improper, unreasonable or negligent act or omission, whether costs resulted, and whether a costs order should be made. A mere mistake does not suffice where the order has a penal element. The court applied the ordinary professional standards explained in Ridehalgh v Horsefield, [1994] Ch. 205.

3. The solicitors committed a clear breach of Rule 34.3(2)(d) of the Criminal Procedure Rules. A representative opposing hearsay evidence must state the grounds of objection. Where those grounds require disclosure of the case to be put to a particular witness, the representative must comply. If the client refuses to permit compliance, the representative should cease to act. Professional privilege did not excuse an objection which concealed the relevant defence case.

4. The judge was entitled to find that the breach was deliberate and serious, and that it made the solicitors complicit in the defendant’s attempted manipulation of the court process. It was therefore open to the judge to characterise the conduct as improper, unreasonable and negligent.

5. Causation was a factual issue on the balance of probabilities. The judge could take account of the defendant’s changing instructions at trial and conclude that timely disclosure, or withdrawal by the solicitors, could have avoided the costs of bringing the witness from Australia. The solicitors’ lack of actual foresight did not preclude that finding.

• Court of Appeal (Criminal Division): dismissed the solicitors’ appeal against the wasted costs order: [2012] EWCA Crim 319.

• Crown Court at Wood Green: on 29 July 2011, His Honour Judge Pawlak ordered the appellant solicitors to pay £3,042.50 in wasted costs incurred by the CPS in securing the attendance of a witness from Australia.