Joseph Hill & Company, Solicitors (Costs Order)

A defendant’s duty to identify alibi witnesses under section 6A(2)(a) of the Criminal Procedure and Investigations Act 1996 arises when the defendant believes that a person can give supporting evidence. It does not depend on obtaining a signed proof, or on the witness being willing to co-operate or testify.

However, an erroneous interpretation of that duty will not justify a wasted costs order unless the representative’s conduct was improper, unreasonable or negligent, caused wasted costs, and the order specifies the sum. A mistake made in accordance with a view then held by experienced practitioners may fall short of that threshold. Wasted costs orders should be confined to clear cases.

The appellant solicitors represented a defendant acquitted of violent disorder. The defence statement asserted that he was at home at the material time, but did not identify relatives whom he had named as potential alibi witnesses. Counsel had advised that their identities should not be disclosed until they gave signed proofs.

On the day before trial, the defendant’s father gave a proof supporting the alibi and was identified to the prosecution. At trial he added evidence inconsistent with his proof. The prosecution obtained employment records to rebut that evidence, causing delay.

At Wood Green Crown Court, His Honour Judge Pawlak held that the solicitors had improperly and unreasonably breached the alibi-notice requirement and made a wasted costs order. The solicitors appealed. The central issues were the proper construction of section 6A(2)(a) of the Criminal Procedure and Investigations Act 1996, causation of wasted costs, and whether the order adequately specified the amount payable.

1. The appeal was allowed and the wasted costs order was quashed. The court also extended time for appealing by eight days.

2. Section 6A(2)(a) of the Criminal Procedure and Investigations Act 1996 required disclosure of the known particulars of any witness whom the defendant believed could support the alibi. The obligation was triggered by that belief. It did not require a signed proof, actual ability ultimately to give evidence, or a willingness to assist. The solicitors should therefore have identified the relatives said to have been present at the home. The advice to withhold all reference to them pending signed proofs was wrong.

3. Nevertheless, applying Ridehalgh v Horsefield [1994] Ch 205, the error was not improper or unreasonable at the time. The interpretation had been adopted in good faith by counsel and was apparently shared by experienced criminal practitioners. It could not be said that no reasonably competent solicitor could have acted in that way. Following this clarification, the same mistake could not reasonably be repeated.

4. The breach was not shown to have caused the alleged wasted costs. Earlier disclosure of the father’s identity would probably not have secured his co-operation before trial. The material delay arose from his unexpected evidence that he had returned from work at 5 pm, which contradicted his proof and was unknown to the solicitors. The delay was therefore likely to have occurred even with compliant disclosure.

5. The order also failed because the judge did not specify a sum, as the relevant costs practice direction required. A formula referring to counsel’s refresher fees had not yielded a readily ascertainable figure. Wasted costs orders are compensatory rather than punitive and should be reserved for clear cases.

• Court of Appeal (Criminal Division): allowed the solicitors’ appeal and quashed the wasted costs order.

• Wood Green Crown Court: on 29 August 2012, His Honour Judge Pawlak made a wasted costs order against the solicitors following the defendant’s acquittal.