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NCN: [2025] EWCA Crim 1361 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT LEICESTER (IN AN APPEAL BEFORE HIS HONOUR JUDGE SPENCER) CASE NO:202500423 B5 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LORD JUSTICE JEREMY BAKER
MR JUSTICE LAVENDER
HER HONOUR JUDGE DE BERTODANO
Appeal under s.3C Costs in Criminal Cases (General) Amendment Regulations 1991 against a Wasted Costs Order
RE: M & M Solicitors
(1992 Sexual Offences (Amendment) Act applies)
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MR THOMAS SCHOFIELD KC appeared on behalf of the Appellants
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APPROVED JUDGMENT
MR JUSTICE LAVENDER:
The appellants, M&M Solicitors, appeal under regulation 3C of the Costs in Criminal Cases (General) Regulations 1986 against a wasted costs order in the amount of £1,950 made against them on 20 January 2025 in the Crown Court at Leicester, pursuant to section 19A of the Prosecution of Offences Act 1985.
It is unnecessary to say much about the evidence or the nature of the case against the defendant, Anthony Melia, who was convicted on 18 September 2023 following a trial in Leicester Magistrates' Court of a single offence of sexual assault contrary to section 3 of the Sexual Offences Act 2003. That offence was committed on 24 November 2022 when the appellant was 66 and the victim of the offence was 14. A witness to the offence was a similar age to the victim.
It should be noted that the provisions of the Sexual Offences (Amendment) Act 1992 apply in this case. Under those provisions, no matter relating to the victim of the defendant's offence shall during her lifetime be included in any publication if it is likely to lead members of the public to identify her as the victim of that offence.
The defendant appealed against his conviction. Following earlier hearings, the appeal hearing was listed for 1 August 2024. The appellants wrote to the defendant on 23 January 2024 to inform him of the date of the hearing and called the defendant on 1 March 2024 and spoke to him. The defendant gave permission to the appellants to discuss his case with his carer.
It appears that the defendant suffered a stroke in or about July 2024. Thereafter, he was in and out of hospital for the rest of the year. The appellants were not informed of the stroke or of the repeated hospitalisation.
By 29 July 2024 the defendant had a new carer, Ms McTavish, who called the appellants on that day to inform them that the defendant was unwell and on strong medication. The appellants sent an email to Ms McTavish asking for any medical evidence, but did not receive a response.
On 31 July 2024 the appellants sent an email to the court asking for the appeal hearing to be adjourned, alternatively, for permission for the defendant to attend by CVP.
A probation officer visited the defendant at home on 31 July 2024. The Probation Service's understanding was that the defendant was bedbound.
Neither the victim nor the witness nor the defendant attended the hearing on 1 August 2024. The appellants telephoned the defendant and spoke to his carer, who said that the defendant was unwell and had physical issues, but refused to provide any more information. The hearing of the appeal was adjourned at the request of the Crown and without objection from those representing the defendant, who were, in the circumstances, unable to obtain their client's consent to an adjournment. The hearing was adjourned to 19 December 2024.
On 2 August 2024 the appellants wrote to the defendant to inform him of the new hearing date. They also informed him that the hearing might proceed in his absence if he failed to attend. The defendant did not respond to this letter and did not contact the appellants at all between 1 August and 19 December 2024.
The defendant was then hospitalised again. Probation Service records indicate that he was in hospital on 29 August 2024.
On 28 August 2024 the appellants sent an email to Ms McTavish seeking an update. They did not receive a reply.
Probation Service records indicate that the defendant was in hospital on 30 October and 20 November 2024.
On 18 December 2024 the appellants sent an email to the defendant, but he did not respond.
The appeal was to be heard on 19 December 2024 by His Honour Judge Spencer and two magistrates. The victim and the witness were in attendance, but the defendant did not attend. It is not known whether the defendant was in hospital on that day or whether he was out of hospital but still too ill to attend court.
The appellants called the defendant on numerous occasions on 19 December 2024, but he did not respond. The appellants also caused inquiries to be made with the Probation Service and a probation officer informed the court of the defendant's stroke and the other matters to which we have referred concerning his hospitalisation.
The court dismissed the appeal. The Crown did not apply for a wasted costs order, but the judge said that there would be a wasted costs order against the appellants in the sum of £1,950, subject to the senior partner of the appellants appearing before him on 20 January 2025 if that order was opposed.
There was then a hearing on 20 January 2025. The Crown's skeleton argument outlined the court's powers but did not make submissions in favour of a wasted costs order. The judge made the wasted costs order which is the subject of this appeal. He said that he was satisfied that it was negligent of the appellants not to inform the court long before 19 December 2024 that the defendant was “off the radar” and probably unwell. He also said that it would have been reasonable for the solicitors to make a further inquiry of the type which the Probation Service was able to make on 19 December 2024 and to inform the court that the defendant was an in-patient in hospital.
The amount of the wasted costs order was made up of £1,300 for the hearing on 19 December 2024 and one-half of that amount for the hearing on 1 August 2024.
The appellants submit that the wasted costs order was wrong in principle, unjustified in law and/or manifestly excessive for a number of reasons.
First, it is submitted that the judge erred by concluding that the appellants had acted improperly, unreasonably or negligently in any of their dealings with the defendant or the court.
Secondly, it is submitted that the judge erred by imposing a wasted costs order against the appellants and in favour of the Crown Prosecution Service when the CPS did not apply for such an order, did not support the judge's intention to impose such an order and remained neutral throughout the judge's hearing of the proceedings concerning the wasted costs order.
Thirdly, it is submitted that the judge erred by concluding that any costs at all had been wasted, since:
the hearing on 1 August 2024 was not wasted owing to the actions of the appellants;
the hearing on 19 December 2024 was not wasted since the appeal was disposed of; and
the time taken on 20 January 2025 to deal with the wasted costs order was further time and expense generated by the court's own initiative to make the order.
Fourthly, it is submitted that the judge erred by imposing a wasted costs order that was disproportionate and excessive. In the event that a wasted costs order was deemed to have been appropriate, it is submitted that there should have been no order at all for the hearing in August and, in respect of the hearing in December, the costs for an effective appeal hearing were inappropriate.
Pursuant to Criminal Procedure Rules 45.9(1)(a)(i) a wasted costs order can 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".
In our judgment, the issue of causation is sufficient to determine this appeal.
The Crown's costs of the hearing on 1 August 2024 were not wasted because of the defendant’s failure to appear but because of the victim's failure to appear, in the light of which, had the Crown not secured an adjournment to the hearing and if the hearing had proceeded in the defendant's absence, the Crown would have been obliged to offer no evidence.
The Crown's costs of the hearing on 19 December 2024 were not wasted because that hearing was effective to dispose of the appeal, albeit by reason of the defendant's non-attendance. Had the appellants informed the court, as the judge considered that they should have done, that the defendant was unwell and would or might not attend the hearing, then that might have led to an adjournment of the hearing, but that in turn would have necessitated a further hearing, at which the Crown would have incurred costs.
The wasted costs order did not include the costs of the hearing on 20 January 2025 and so we need say no more about that hearing.
On that basis alone, the appeal has to be allowed. However, we wish to make clear that we should not be understood as endorsing the judge's conclusion that the appellants were negligent. On the contrary, we see considerable force in the submission that the appellants were not negligent. The duty to attend court lay primarily on the defendant. When the appellants learnt at the end of July 2024 that the defendant was unwell, they communicated with both the defendant's carer and the court. They also communicated with the defendant on 2 August and 18 December 2024 and with his carer on 28 October 2024 in respect of the hearing on 19 December 2024. In those circumstances, while we certainly agree with the judge that the appellants could have done more than they did, if it had been necessary to decide whether there was a negligent act or omission on the part of the appellants, we would have held that there was not.
Finally, we mention two other points.
First, the judge was rightly concerned that court time had been wasted on 19 December 2024. However, a wasted costs order can only be made in respect of a party's costs.
Secondly, the judge was also rightly concerned that the victim and the witness (both of whom were teenage girls) had been required to attend court unnecessarily on 19 December 2024. However, we repeat that a wasted costs order can only be made in respect of a party's costs.
For all these reasons, we allow this appeal and we revoke the wasted costs order.
MR SCHOFIELD: Thank you, my Lord. There can be no application for costs.
MR JUSTICE LAVENDER: No.
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