M & M Solicitors, Re

A wasted costs order in criminal proceedings requires a party to have incurred costs as a result of an improper, unreasonable or negligent act or omission by a legal or other representative under Criminal Procedure Rules 45.9(1)(a)(i). Causation is essential. Costs are not wasted where the relevant hearing was caused by another person's absence, or where it effectively disposed of the appeal. A possible adjournment, which might have generated further costs, does not establish that the original costs were wasted. The power concerns a party's costs, not wasted court time or the inconvenience of witnesses.

The appellants, a firm of solicitors, represented a defendant whose conviction appeal was listed before the Crown Court at Leicester. The hearing on 1 August 2024 was adjourned after the victim and witness failed to attend. On 19 December 2024 the defendant was absent, but the victim and witness attended; the appeal was dismissed. On 20 January 2025 the Crown Court made a £1,950 wasted costs order under Prosecution of Offences Act 1985 section 19A, finding that the solicitors had been negligent in failing to inform the court earlier of the defendant's illness. The prosecution had not applied for the order and remained neutral. The central issues were negligence, causation, the scope of wasted costs, and proportionality. The judgment also records that statutory reporting restrictions concerning the victim applied.

The appeal was allowed and the wasted costs order was revoked. Giving the judgment of the court, Lavender J held:

1. Under Criminal Procedure Rules 45.9(1)(a)(i), a wasted costs order requires party costs to have resulted from an improper, unreasonable or negligent act or omission by a legal or other representative.
2. Causation was sufficient to determine the appeal. The Crown's costs on 1 August 2024 were not wasted because of the defendant's failure to attend. They were incurred in the context of the victim's failure to attend. Had the hearing proceeded in the defendant's absence, the Crown would have had to offer no evidence.
3. The Crown's costs on 19 December 2024 were not wasted. That hearing effectively disposed of the appeal, although the disposal resulted from the defendant's non-attendance. Informing the court earlier of the defendant's illness might have produced an adjournment, but that would have required a further hearing and further Crown costs.
4. The court did not endorse the finding of negligence. It considered that the duty to attend court lay primarily on the defendant and that the solicitors' communications with the defendant, his carer and the court meant that, if the issue had required determination, no negligent act or omission would have been established. The solicitors could have done more, but that was obiter.
5. A wasted costs order can concern only a party's costs. Wasted court time and the unnecessary attendance of witnesses, although matters of legitimate concern, cannot themselves justify such an order. The order did not include the costs of the later hearing dealing with the order.

It was therefore unnecessary to determine the prosecution's neutrality, the remaining negligence arguments, or proportionality.

• Court of Appeal (Criminal Division) — In [2025] EWCA Crim 1361, allowed the solicitors' appeal and revoked the wasted costs order.
• Crown Court at Leicester — Dismissed the defendant's conviction appeal on 19 December 2024 and made a £1,950 wasted costs order against the solicitors on 20 January 2025.