Anonymized Summary of Court Opinion

Factual and Procedural Background

The Appellant appealed under regulation 3C of the Costs in Criminal Cases (General) Regulations 1986 against a wasted costs order in the amount of £1,950 made on 20 January 2025 in the Crown Court at Leicester pursuant to section 19A of the Prosecution of Offences Act 1985.

The Defendant had been convicted on 18 September 2023 in the Magistrates' Court of a single offence of sexual assault contrary to section 3 of the Sexual Offences Act 2003, for an offence said to have been committed on 24 November 2022. At the time of the offence the Defendant was 66 and the victim was 14; a witness to the offence was of a similar age to the victim. The Sexual Offences (Amendment) Act 1992 anonymity protections applied to the victim.

The Defendant appealed. The appeal was initially listed for hearing on 1 August 2024. The Appellant solicitors notified and spoke to the Defendant in early 2024 and obtained permission to discuss the case with the Defendant's carer.

In or about July 2024 the Defendant suffered a stroke and thereafter was in and out of hospital for the remainder of the year. The Appellant solicitors were not informed of the stroke or the repeated hospitalisations until late July 2024 when a new carer ("Carer") contacted them to say the Defendant was unwell and on strong medication. The Appellant solicitors asked that medical evidence be provided but received no response from the Carer.

On 31 July 2024 the Appellant solicitors emailed the court asking for an adjournment of the appeal hearing or, alternatively, for permission for the Defendant to attend by CVP (remote attendance). A Probation Service visit on 31 July recorded that the Defendant appeared to be bedbound.

On 1 August 2024 the victim, the witness and the Defendant did not attend the hearing. The Appellant solicitors telephoned the Carer who confirmed the Defendant was unwell but declined to provide further details. The hearing was adjourned at the request of the Prosecution and without objection from those representing the Defendant because the representatives were unable to obtain the Defendant's consent; it was listed for re-hearing on 19 December 2024.

The Appellant solicitors wrote to the Defendant on 2 August 2024 about the new hearing date and warned that the hearing might proceed in his absence. The Defendant did not respond and did not contact the Appellant solicitors between 1 August and 19 December 2024. Probation records indicate further hospital attendance by the Defendant on 29 August, 30 October and 20 November 2024. The Appellant solicitors made further attempts to contact the Carer on 28 August and emailed the Defendant on 18 December, receiving no substantive replies.

The appeal was heard on 19 December 2024 before a judge and two magistrates. The victim and witness attended; the Defendant did not. It was not known whether the Defendant was in hospital that day or was out of hospital but unfit to attend. The Appellant solicitors placed calls and made inquiries with the Probation Service; a probation officer informed the court of the Defendant's stroke and hospitalisations. The court dismissed the appeal.

Although the Prosecution did not apply for wasted costs, the trial judge indicated an intention to make a wasted costs order of £1,950 against the Appellant solicitors, subject to the senior partner of the firm attending a further hearing on 20 January 2025 if the order were opposed. At the hearing on 20 January 2025 the judge made the wasted costs order, concluding the solicitors had been negligent in failing to inform the court earlier that the Defendant was "off the radar" and likely unwell, and that they should reasonably have made further inquiries akin to those the Probation Service made on 19 December 2024. The sum ordered comprised £1,300 for the hearing on 19 December 2024 and half that amount for the hearing on 1 August 2024.

Legal Issues Presented

1. Whether the wasted costs order made under section 19A of the Prosecution of Offences Act 1985 and regulation 3C of the Costs in Criminal Cases (General) Regulations 1986 was lawful and appropriately grounded in negligence, impropriety or unreasonableness by the Appellant solicitors.
2. Whether the judge erred in imposing a wasted costs order where the Prosecution (Company A) did not apply for or support such an order and remained neutral.
3. Whether any costs were causally wasted by reason of the Appellants' conduct (causation), specifically in respect of the hearings on 1 August 2024 and 19 December 2024.
4. Whether the quantum of the order was disproportionate or manifestly excessive if a wasted costs order were appropriate.

Arguments of the Parties

Appellant's Arguments

• The judge erred in concluding that the Appellant solicitors had acted improperly, unreasonably or negligently in their dealings with the Defendant or with the court.
• The judge erred in imposing a wasted costs order in favour of the Prosecution when the Prosecution did not apply for the order, did not support it and remained neutral during the hearing concerning the wasted costs order.
• The judge erred in concluding any costs had been wasted because:
  • The 1 August 2024 hearing was not wasted owing to the Appellants' conduct;
  • The 19 December 2024 hearing was not wasted because it effectively disposed of the appeal even though the Defendant did not attend;
  • The time spent on 20 January 2025 to hear the contested wasted costs matter was additional time occasioned by the court's own initiative rather than by the Appellants.
• The order was disproportionate and excessive; if any order were appropriate, there should have been no order for the August hearing, and the amount attributed to the December hearing was inappropriate.

Prosecution's Position (as recorded)

• The Prosecution (referred to in the opinion as the Crown) did not apply for a wasted costs order, did not make submissions in favour of such an order at the hearing on 20 January 2025, and remained neutral on the matter.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court identified causation as the dispositive issue. It applied the statutory test for a wasted costs order as reflected in the Criminal Procedure Rules (referenced in the opinion as rule 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 court's analysis proceeded in three main steps focused on causation:

1. 1 August 2024 hearing: The court concluded that the Prosecution's costs for that hearing were not wasted because of any failure by the Appellant solicitors; rather, the costs arose from the victim's failure to attend. The court observed that, had the Prosecution not secured an adjournment and the hearing had proceeded in the Defendant's absence, the Prosecution would have been obliged to offer no evidence. Thus causation between the Appellants' conduct and the Prosecution's costs for that date was absent.
2. 19 December 2024 hearing: The court found the Prosecution's costs on that date were not wasted because the hearing was effective to dispose of the appeal. Even if the Appellants had informed the court earlier that the Defendant was unwell and might not attend (which might have prompted an adjournment), an adjournment would itself have caused the Prosecution to incur costs at a later date. In short, the court saw no causal chain showing the Appellant solicitors' conduct caused recoverable wasted costs to the Prosecution for the December hearing.
3. 20 January 2025 hearing: The court noted that the wasted costs order as made did not include costs for that 20 January hearing, and so it did not further consider causation for that hearing.

On the basis that the Prosecution had not demonstrated the requisite causal link between any negligent act or omission by the Appellants and the Prosecution's incurred costs for the relevant hearings, the court concluded the wasted costs order could not stand.

The appellate court also addressed the finding of negligence made by the trial judge. It declined to endorse that finding and recorded sympathy with the Appellants' submissions that they were not negligent. The court noted the primary duty to attend lay with the Defendant, and that the Appellants had communicated with the Defendant, his Carer and the court on several occasions (including specific communications on 23 January, 1 March, 31 July, 2 August, 28 August, 28 October and 18 December 2024). While the appellate court accepted the Appellants could perhaps have done more, it would not have concluded, on the facts the court recited, that the Appellants were negligent.

Two further points were emphasised by the appellate court: (a) concern about wasted court time on 19 December 2024 was understandable, but a wasted costs order can only be made in respect of a party's costs (not general court time); and (b) concern for the victim and witness who had to attend unnecessarily was also understandable, but again a wasted costs order is limited to a party's costs.

Holding and Implications

APPEAL ALLOWED; WASTED COSTS ORDER REVOKED

Holding: The appellate court allowed the appeal and revoked the wasted costs order of £1,950 that had been made against the Appellant solicitors. The court held that causation was not established between any improper, unreasonable or negligent conduct by the Appellants and the Prosecution's incurred costs for the hearings in question.

Implications:

• The direct practical consequence is that the specific wasted costs order for £1,950 has been set aside and the Appellants are not liable under that order.
• The court expressly declined to endorse the trial judge's finding of negligence. On the facts as recorded, the appellate court would not have made a finding of negligence against the Appellants.
• The court reiterated the legal principle that a wasted costs order is limited to a party's costs; it cannot be used to compensate for general court time or for the distress or inconvenience caused to witnesses or victims.
• No new precedent was established by the decision; the ruling turned on the application of the statutory test (including causation) to the specific facts of this case.

Postscript recorded in the opinion: After the court's conclusion that the appeal should be allowed, counsel for the Prosecution indicated "There can be no application for costs." The presiding judge responded "No."