Soni (Appeal against a Wasted Costs Order), Re

A wasted costs order under section 19A of the Prosecution of Offences Act 1985 requires the representative to act for a party to criminal proceedings. A non-party does not become a party merely by requesting court information or documents under rule 5.8 of the Criminal Procedure Rules.

An application under rule 5.8(7) may require judicial resolution, but it does not initiate distinct criminal proceedings. Criminal proceedings ordinarily involve a formal accusation of breach of criminal law and may culminate in conviction and condemnation. Further, contempt constituted by breach of a restraint order is civil, not criminal, contempt. Accordingly, the statutory jurisdiction to make a wasted costs order was absent.

The appellant solicitor acted for persons seeking documents and information concerning contempt proceedings against Kalpesh Patel. The material was sought to assist proposed civil litigation concerning property and shares. The Crown Court treated the request as an application under rule 5.8(7) of the Criminal Procedure Rules and, after a hearing, made a wasted costs order against the appellant under section 19A of the Prosecution of Offences Act 1985.

She appealed on the basis, among others, that neither she nor her clients was a party to criminal proceedings. The central issue was whether the statutory wasted-costs regime conferred jurisdiction to make the order.

1. Appeal allowed. The wasted costs order was made without jurisdiction and was revoked. Section 19A of the Prosecution of Offences Act 1985 applies only where the representative acts for a party to criminal proceedings.
2. The Thukrals did not become parties to the concluded fraud prosecution or to the contempt proceedings merely by seeking material held by the court. The structure of Part 5 of the Criminal Procedure Rules distinguishes requests by parties from applications by members of the public. Their request was correctly dealt with under rule 5.8, which applies to non-parties.
3. The contempt proceedings were not criminal proceedings for this purpose. Applying R v O’Brien [2014] UKSC 23, breach of a restraint order is civil contempt. Its character depends on the nature of the disobedience, not on the fact that the order was made in a criminal court.
4. An application under rule 5.8(7) does initiate proceedings requiring judicial resolution, but not criminal proceedings distinct from the underlying case. Applying the general understanding stated in Her Majesty’s Commissioner for Customs and Excise v City of London Magistrates’ Court [2000] 2 Cr App R 348, it involves neither a formal criminal accusation nor proceedings capable of conviction and condemnation. Re a Solicitor (Wasted Costs Order) [1996] 1 FLR 40, concerning a witness summons, did not support a contrary conclusion.
5. The court added that the Criminal Practice Direction should be closely followed in applications for access to material. Legitimate safeguards may require inquiry into an applicant’s purpose, but should not routinely prevent a member of the press or public from obtaining information or documents referred to in open court.

• Court of Appeal (Criminal Division): Allowed the appeal and revoked the wasted costs order under regulation 3C(6) of the Costs in Criminal Cases (General) Regulations 1986: [2019] EWCA Crim 1304.
• Leicester Crown Court: Made a wasted costs order against the appellant under section 19A of the Prosecution of Offences Act 1985.