Primacy of Causation in Criminal Wasted Costs Orders: No Order Where the Hearing Disposes of the Case or Costs Would Be Incurred Anyway

Case: M & M Solicitors v Crown Court at Leicester (wasted costs) [2025] EWCA Crim 1361

Court: Court of Appeal (Criminal Division)

Judgment date: 7 October 2025

Judge: Lavender J

Introduction

This appeal concerns the proper scope of “wasted costs” orders against legal representatives in criminal proceedings under section 19A of the Prosecution of Offences Act 1985 and Criminal Procedure Rule 45.9. The appellants, M & M Solicitors, challenged a Crown Court order requiring them to pay £1,950 to the Crown Prosecution Service following the dismissal of their client’s appeal against conviction on 19 December 2024. The Crown Court considered the solicitors negligent for not warning the court sooner that their client was “off the radar” and probably unwell following a stroke.

The Court of Appeal allowed the appeal and revoked the order. Central to the decision is a clear reaffirmation that causation is the controlling threshold in wasted costs: a party’s costs must have been incurred “as a result of” an improper, unreasonable, or negligent act or omission by the legal representative. Where a hearing disposes of the case, the Crown’s costs are not wasted; and where earlier notification would only have led to an adjournment with equivalent costs later, causation is not established. The Court also emphasised that wasted costs orders cannot be used to compensate for court time or the inconvenience to witnesses: they are confined to a party’s costs.

Because the underlying criminal case involved a sexual offence, the reporting restrictions in the Sexual Offences (Amendment) Act 1992 applied and continue to apply to any publication. This commentary respects those restrictions and avoids any identifying details of the complainant.

Summary of the Judgment

Outcome: Appeal allowed; wasted costs order of £1,950 revoked.
Ground of decision: Causation. The CPS’s costs on 1 August 2024 were not wasted due to the solicitors’ conduct but because the complainant did not attend. The CPS’s costs on 19 December 2024 were not wasted because that hearing effectively disposed of the appeal; had earlier notice been given, an adjournment would likely have resulted, shifting rather than avoiding costs.
Additional observations: The Court did not endorse the Crown Court’s finding of negligence. To the contrary, it saw “considerable force” in the solicitors’ argument that they were not negligent given their communications with the carer, the defendant, and the court. The Court reiterated that wasted costs orders are confined to a party’s costs and cannot be made to address wasted court time or the burden placed on witnesses.

Background and Procedural History

The defendant had been convicted in the magistrates’ court in September 2023 of a sexual assault under section 3 of the Sexual Offences Act 2003, with the complainant being a child. He appealed to the Crown Court. The appeal was listed for 1 August 2024. In late July 2024 the defendant apparently suffered a stroke and was in and out of hospital for the remainder of the year. His new carer informed the solicitors on 29 July that he was unwell and on strong medication. The solicitors asked for medical evidence but received no reply. On 31 July they asked the court to adjourn or permit the defendant to attend via the Cloud Video Platform (CVP). A probation officer’s visit on the same day recorded an understanding that the defendant was bedbound.

At the 1 August hearing neither the defendant nor the complainant nor the child witness attended. The Crown applied to adjourn; the defence did not object given their inability to obtain instructions; and the matter was relisted for 19 December 2024. The solicitors wrote to the defendant on 2 August to notify the new date and warn that the hearing might proceed in his absence if he failed to attend.

Probation records show the defendant was in hospital on 29 August, 30 October and 20 November 2024. The solicitors attempted to obtain updates from the carer (seeking an update in late August) and emailed the defendant on 18 December but received no reply.

On 19 December 2024 the appeal came before HHJ Spencer and two magistrates. The complainant and witness attended; the defendant did not. The solicitors’ repeated attempts to contact the defendant failed. The probation service informed the court of the defendant’s stroke and hospital admissions. The appeal was dismissed. The Crown did not seek a wasted costs order, but the judge indicated his intention to make one against the solicitors for £1,950, subject to a further hearing if opposed.

At the hearing on 20 January 2025, the CPS remained neutral. The judge nonetheless made a wasted costs order, holding that the solicitors were negligent in not alerting the court “long before” 19 December that the defendant was “off the radar,” and in not making inquiries of the sort that the probation service made on the day of the hearing. The £1,950 comprised £1,300 for the 19 December hearing and £650 (half that amount) for the 1 August hearing.

M & M Solicitors appealed under regulation 3C of the Costs in Criminal Cases (General) Regulations 1986.

The Court’s Decision

Lavender J, giving the judgment of the Court of Appeal, allowed the appeal on causation alone. The Court held:

1 August 2024: The CPS’s costs were not wasted due to the defendant’s non-attendance or any omission by the solicitors, but because the complainant did not attend. Had the appeal proceeded in the defendant’s absence, the Crown would have had to offer no evidence. The essential cause of the adjournment and the CPS’s costs on that date was the complainant’s absence, not the solicitors’ conduct.
19 December 2024: The hearing effectively disposed of the appeal (albeit in the defendant’s absence), so the CPS’s costs were not “wasted.” Even if the solicitors had warned the court earlier of the defendant’s poor health and possible non-attendance, that would likely have prompted an adjournment, simply deferring the CPS’s costs to a future hearing. The costs were therefore not incurred “as a result of” the solicitors’ conduct.
20 January 2025: Those costs were not included in the order and did not require determination.

Although not necessary for the outcome, the Court made clear that it did not endorse the Crown Court’s finding of negligence. The duty to attend court lies primarily on the defendant. The solicitors took steps to liaise with the carer and court around the time of the August hearing and made further communications before the December hearing. While “more could have been done,” had the point been necessary for decision the Court would have found no negligence by the solicitors.

The Court also emphasised two limits on wasted costs orders:

They may only be made in respect of a party’s costs; they cannot be used to compensate for court time spent.
They cannot compensate for the inconvenience to witnesses or complainants, however understandable the court’s concern might be. The complainant and child witness attended on 19 December, but that could not ground a wasted costs order.

Detailed Analysis

1) Statutory and Procedural Framework

Prosecution of Offences Act 1985, section 19A: Empowers criminal courts to make wasted costs orders against legal or other representatives whose improper, unreasonable, or negligent acts or omissions cause a party to incur costs.
Criminal Procedure Rules 45.9(1)(a)(i): A wasted costs order may be made where “a party has incurred costs as a result of an improper, unreasonable or negligent act or omission by a legal or other representative.” The phrase “as a result of” captures the causation requirement central to this appeal.
Costs in Criminal Cases (General) Regulations 1986, regulation 3C: Provides the appellate route invoked here.
Sexual Offences (Amendment) Act 1992: Imposes reporting restrictions to protect the complainant’s anonymity.

The Court of Appeal grounded its reasoning in the text of CrimPR 45.9(1)(a)(i) and the causation threshold embedded in “as a result of.” No case-law was cited in the judgment; the outcome is the product of applying the statutory and procedural language to the undisputed chronology.

2) Legal Reasoning: Causation as the Determinative Issue

The Court identified causation as the dispositive question. The inquiry has two key components:

Direct link: Were the CPS’s costs at each hearing incurred “as a result of” the solicitors’ act or omission?
Counterfactual analysis: Would those costs have been avoided but for the alleged conduct?

Applying that approach:

1 August 2024: The essential driver of the adjournment and the CPS’s costs was the complainant’s non-attendance. Even if the defendant had been present, the Crown (by its own acknowledgment) would have had to offer no evidence. There was no causal link to any “improper, unreasonable or negligent” act by the solicitors.
19 December 2024: The hearing was effective; it concluded the appeal. Such costs are by definition not “wasted.” Moreover, the judge’s criticism—that earlier notice might have produced an adjournment—only demonstrates that the CPS would have incurred similar costs at a later date, not that those costs were avoidable. Where the costs would simply be shifted in time, causation is not established.

On this analysis, the Crown Court’s order failed to identify any costs actually “wasted” by reason of the solicitors’ conduct. The order therefore could not stand.

3) The Court’s Observations on Negligence

While unnecessary to the outcome, the Court made notable observations on the negligence finding:

Primary duty to attend: The obligation to attend court lies with the defendant. A representative’s role includes facilitating attendance and communication, but the legal duty is not automatically breached by a client’s silence or non-attendance.
Steps taken: When told the defendant was unwell, the solicitors contacted the carer and the court (seeking adjournment or CVP), wrote to their client (August and December) and sought updates. Although “more could have been done,” the Court would have found no negligence if a ruling had been necessary.

These remarks are significant. They signal that courts must be careful before attributing negligence to defence representatives where a vulnerable client becomes uncontactable or repeatedly hospitalised. Documentation of attempts and appropriate engagement with the court can suffice to defeat allegations of negligence.

4) Limits of Wasted Costs: Party’s Costs Only

The judgment reasserts two boundary rules:

No recovery for court time: The proper scope of a wasted costs order is the costs of a party, not compensation for the court’s own time and resources.
No recovery for witness inconvenience: Even where complainants or witnesses attend unnecessarily, their inconvenience cannot be monetised via a wasted costs order. Different statutory regimes govern witness support and victim services.

Judicial frustration at lost court time and the burden on vulnerable witnesses is understandable, particularly in sensitive cases. But a wasted costs order is not a vehicle to address those legitimate concerns. Listing control, case management directions, or other powers must be used instead.

5) The Neutral CPS and Orders of the Court’s Own Motion

The appellants also contended that the Crown Court erred by making a wasted costs order where the CPS neither applied for nor supported such an order. The Court of Appeal did not have to decide this submission because causation disposed of the appeal. Nothing in this judgment therefore restricts a criminal court’s power to act on its own initiative where the statutory criteria are met. The key point is that any such order must still satisfy the causal test and be limited to a party’s costs.

6) Quantum and Apportionment

The Crown Court’s figures (£1,300 for 19 December and £650 for 1 August) were treated as if both dates involved wasted costs. The Court of Appeal’s reasoning implies two practical controls on quantum:

Granular causation: Costs must be tied to a precise causal act or omission by the representative. Where multiple factors converge (e.g., non-attendance by a witness, illness of a defendant, listing constraints), the court must identify which costs are truly “as a result of” the representative’s conduct.
Effectiveness of the hearing: If the hearing resolves the case (even by dismissal due to non-attendance), the costs are not wasted in principle.

Impact and Practical Implications

For Judges

Start with causation: Ask whether the applicant party’s costs would have been avoided but for the representative’s conduct.
Distinguish disposal from adjournment: Costs of a hearing that concludes the case are not “wasted.”
Consider the counterfactual: If earlier notice would merely have led to an adjournment, causing the same or similar costs later, causation is not made out.
Stay within jurisdictional limits: Wasted costs orders cannot address court time or the burden on witnesses. Restrict orders to a party’s actual costs.
Record the basis for quantum: Identify the date(s), the specific heads of cost, and the causal link to the conduct complained of.

For Prosecutors

Evidence of causation is essential: If seeking a wasted costs order, present a short schedule explaining how each cost item would have been avoided but for the representative’s conduct.
Witness non-attendance matters: Where an adjournment is caused by a complainant or witness absence, that breaks the chain of causation to defence conduct in the usual case.

For Defence Representatives

Document contact attempts: Keep clear records of calls, emails, letters, and any liaison with carers or agencies (subject to confidentiality and client authority).
Notify the court prudently: Where a client becomes uncontactable or unwell, inform the court with as much specificity as is ethically and lawfully permissible, and consider seeking CVP attendance or an adjournment.
Protect client confidentiality: Ensure any third-party inquiries (e.g., to probation) are within the client’s consent and data protection boundaries.
Be prepared to rebut negligence: If faced with a wasted costs application, emphasise the chronology of steps taken and the limits of what could reasonably be achieved where illness and hospitalisation intervene.

Complex Concepts Simplified

Wasted costs order: An order requiring a legal representative (not the client) to pay another party’s costs because of the representative’s improper, unreasonable, or negligent conduct.
“As a result of” (causation): There must be a clear cause-and-effect link between the representative’s conduct and the costs claimed. If the same costs would have been incurred anyway at a later hearing, they are not caused by the representative’s conduct.
Effective vs. wasted hearing: A hearing that disposes of the case is effective; its costs are not “wasted,” even if the outcome is shaped by a party’s non-attendance.
Party’s costs only: Wasted costs orders can reimburse a party’s legal costs; they cannot compensate for the court’s time or for witness inconvenience.
CVP: Cloud Video Platform—a remote attendance option in criminal proceedings.

Notes on the Factual Chronology

The judgment records that the solicitors contacted the carer on 28 August 2024 (paragraph 12) and also refers to a contact on 28 October 2024 (paragraph 23). The apparent discrepancy is immaterial to the outcome; in either case, the Court accepted that the solicitors engaged with the carer and attempted to update the court as appropriate, reinforcing the Court’s view that a finding of negligence would not have been justified.

Conclusion

This decision clarifies and sharpens the causation threshold for wasted costs orders in criminal cases:

Costs must be directly caused by the representative’s improper, unreasonable, or negligent act or omission.
Costs of a hearing that effectively disposes of the case are not “wasted.”
If earlier notification would simply have led to an adjournment and the same costs later, causation is not satisfied.
Wasted costs orders cannot be deployed to compensate for court time or witness inconvenience; they are confined to a party’s costs.

While acknowledging the Crown Court’s understandable concern about listing inefficiencies and the burden placed on a young complainant and witness, the Court of Appeal’s judgment reaffirms that wasted costs orders are a tightly controlled remedy. They are not a general tool to police perceived shortcomings in case management or client engagement, particularly where an ill and hospitalised defendant became uncontactable. The judgment provides clear guidance for future cases: before making or upholding a wasted costs order, courts must identify a concrete, causally linked head of “wasted” party costs attributable to a proven impropriety, unreasonableness, or negligence by the legal representative. Absent that, the order cannot stand.

Reporting Restrictions: The Sexual Offences (Amendment) Act 1992 applies. Nothing should be published that is likely to identify the complainant.