Walker, R. v

1. MR JUSTICE BLAKE: This is an appeal to this court by a solicitor pursuant to the Costs in Criminal Cases (General) Regulations 1986 and regulation 2C of those regulations governs appeals to this court. It concerns a order that wasted costs in the sum of £53.48p should be made against the appellant in respect of events in August 2009.

2. On 31st July 2009 a defendant, who was a client of this appellant before the Skipton Magistrates' Court was committed for sentence on bail by the Justices to the Bradford Crown Court. The defendant was handed a notice in the following terms:

"Case adjourned to week commencing 24th August 2009 at 10.00 am."

The Justices' register records the following:

"Results.

Committed to Crown Court for sentence on unconditional bail. Committed to Bradford Crown Court for sentence [giving the section of the Powers of Criminal Courts Act] on 24/08/2009 or such other date, time or place as the Crown Court directs on unconditional bail.

Text

During week commencing 24/08/2009."

3. The appellant understood that the committal for sentence was to a date in the week commencing 24th August 2009 that would be listed in due course and he would be informed of that date so as to inform his client. It appears that the Crown Court listing office took the view that those directions were to date certain, 10 o'clock on 24th August 2009, unless the Crown Court directed another time, date or place. It may be that the defendant (the client of the appellant) understood that he had to surrender his bail at 10 o'clock, as it appears he did in fact turn up on that date but there was no representation for him because of this appellant's understanding that it was a matter to be remanded for a date to be listed in that week. He in fact telephoned the Crown Court on 24th August to find out why he had been informed of no date, had been told the matter was in the list for that date, attended court, explained the position to the judge and apparently relayed the same information to the client. The judge put the matter over to 27th August when the sentence was determined for the appellant's client and then dealt with the wasted costs matter in the way indicated.

4. The grounds of appeal essentially suggest that there was no or no sufficient fault to justify the making of this order in these circumstances and moreover insufficient information had been given as to the basis on which an order was minded to be made for the appellants to make representations to the judge on that matter as is required under the scheme of the regulations.

5. Although the authority of this court indicates the case of DPP v Denning [1991] 2 QB 532, that the words used in regulation 3, a result of unnecessary or improper act or omission on behalf of a party do not necessarily require grave impropriety, there has to be something which reaches the certain threshold. In this particular case, having regard to the possible ambiguity of the terms of the notice that was granted to the defendant about what the justices had intended to achieve, and no doubt anything that this appellant had been told as to what the basis of the justices decision was, there appears to have been a genuine misunderstanding which led to the failure to secure representation was available on 24th August itself. Moreover it does appear that the basis on which a wasted costs order might be made against this appellant was not sufficiently clearly identified because it was only after until the order was made that the appellant got the relevant documents from the justices and put them before the Crown Court. It is necessary that there be a fair opportunity to respond to an allegation of omission that would justify a wasted costs order, if there was uncertainty as to precisely what the justices had said, the position was not right for adjudication.

6. Having regard to both those matters, the conclusion of this court is that this appeal should be allowed and the wasted costs order set aside. Nothing is intended to discourage solicitors where there is an ambiguous order from making the appropriate enquiries before the date on which it is too late to do what is necessary has past, but in this particular case it was a short period of remand, with some degree of uncertainty, as indicated.