Williams v Telefonica 02 UK Ltd

On Monday 8^th December Ricardo Williams made an application to me which was designed to seek an order that Telefonica O2 (“O2”) should permit an expert instructed on his behalf to inspect systems in operation at one of their main offices, although in form the hearing was to consider whether or not to maintain or discharge a summons that had been issued against Miss Sheppard of O2 to attend court to give relevant evidence.

At the conclusion of the hearing, I indicated my decision to refuse. I later provided full reasons for that decision. O2 now seek their costs of attending to seek the discharge of the summons, either as the successful party on the application, or, to the extent that those acting for the Defendant did so by reason of an improper, unreasonable or negligent act or omission, a wasted costs order against them.

This is my ruling on that application for costs, which I had adjourned to the conclusion of the trial, and which has involved since then an exchange of written submissions and an agreement that I should determine the issues on paper, without further oral hearing, after which (in August 2009, during the vacation) the parties’ rival contentions were forwarded to me.

In summary, in my ruling on the application at trial to discharge the witness summons I came to the following relevant conclusions:

Further, Ms. Sheppard, to whom the application was addressed, was unable herself to give any evidence, nor to produce documents (it being not to documents, but to physical inspection of a process in operation at third party premises to which the summons was intend to be, though was not in terms, directed).

It followed that I concluded the application was pointless, as well as probably being brought in a format which was inappropriate to achieve the intended aim.

In their submissions on costs, O2 have emphasised that there was extensive correspondence between Shah Solicitors acting for Williams, and themselves, prior to the application. In the course of that correspondence, Shah Solicitors & Co were made aware that a repeat retrieval process had been conducted with the data by O2, and that a witness statement from a Mr. England verifying that, and setting out some details of it, had already been provided to the court. Various materials were requested by Shah Solicitors & Co. which were potentially relevant if the reliability of the data had been in question (which I had been told by then, by counsel instructed for Williams, it was not) as distinct from its completeness. This was therefore as irrelevant to the case as was the approach of Ross Patel, encouraged as he appears to have been by the failure of Shah Solicitors to tell him that the only challenge was on the latter footing.

They submit that when Shah Solicitors on behalf of Williams summoned Ms. Sheppard they did so without giving any reasoned response to O2’s contention that the queries they had earlier raised had been sufficiently answered by Mr. England. They gave no detail of the issues as to which Ms. Sheppard’s evidence might be addressed. And they made the application in breach of Rule 28.5 Criminal Procedure Rules. The application (they submit) was made in the face of exhaustive responses by O2 to requests for information, and despite Mr. Patel having had the opportunity in the earlier case of Davies to observe a process of retrieval. It was unmeritorious and ill conceived.

Costs were further incurred by the failure of the Defence to withdraw the summons on 4^th. December once it became clear that it was opposed on reasoned, and reasonable, grounds.

Ms Bathurst-Norman submits on behalf of Shah Solicitors Solicitors and Williams that the application was properly made, given that the prosecution had provided records of telephone calls as complete, yet Ricardo Williams was sure he had made or received more calls than those identified. It was only after she pressed the prosecution, and they in turn O2, that further information came to light which showed that Williams was right in thinking that more calls should have been apparent on the face of the data. This was important to his defence.

At all times, Shah Solicitors had acted on the advice of their instructed expert, Ross Patel. In the light of this, they addressed requests for further information to O2, to ensure that no further relevant data had been missed. The replies from O2 were unhelpful in resolving this.

At all times, Shah Solicitors acted on the instructions of their client, which were that he had made more calls than those that were recorded. This was not, therefore, a “fishing” exercise, for there was a sound basis to think not that “something might turn up” but rather that something was available to be revealed.

The issue of the summons was not without merit. O2 had invited the issue of one, by letter of 7^th. November. Its discharge was ordered only after a careful balancing of rival considerations by the court.

Any breach of procedural rules was merely technical, and no cost consequence flowed from this breach since a hearing would have occurred in any event.

The jurisdiction to award wasted costs on an application for a witness summons under the familiar principles that apply to such an application more generally has been considered by the Court of Appeal (Criminal Division) in Re Ronald A. Prior & Co. (Solicitors) [1996] 1 Cr. App. R. 248. The appellant's application for a witness summons was found by the judge to have been speculative, unspecific and made without foundation with the apparent intention of finding evidence to discredit the complainant in a case of indecent assault. The appellant contended that the Crown Court had no power to make the order, or that if there was jurisdiction then the order ought not to have been made. His appeal was dismissed. It was clearly established that it was not proper to issue a witness summons for disclosure of a document or documents, still less for the whole contents of a file or files for the speculative purpose that material might come to light which would discredit a complainant. On the evidence the appellant's application was made without reasonable cause. No reasonably well-informed and competent legal professional would have made such an application in the circumstances. The local authority's costs were incurred as a result of the unreasonable and negligent acts of the appellants within section 19(A)(3) of the 1985 Prosecution of Offences Act. It followed that the judge was justified in making the wasted costs order.

I refused the summons, which was not in a form appropriate (in any event) to its intended object, which was to ensure that O2 made available their premises and the procedures therein for inspection by an expert instructed by the Defence. Accordingly, there should be no doubt that the costs incurred by O2 in relation to, and in resisting, that summons should be paid. The real issue here is whether that should be by Shah Solicitors as wasted costs. To so order requires a finding that Shah Solicitors have acted unreasonably and negligently.

To act in accordance with apparently professional expert advice, potentially to advance a client’s defence on a most serious charge, and in line with a client’s instructions, is neither unreasonable nor negligent. This does not of itself, though, answer the issues I have to address, for two reasons. First, if reliance is to be placed upon what an expert advises, this must pre-suppose that the expert is properly instructed with relevant information, and thus able to give relevant advice. It also implies that advice which appears to be directed to an irrelevant point is considered, with reasonable care, before acting upon it. A solicitor is not merely a conduit, but has an independent role to play in assessing evidence, always acting in the best interests of a client. If (as is the case) a jury is told that they do not have to accept the conclusions of an expert even where it is unchallenged, all the more must a solicitor be able to do so. Secondly, I must ask if there should have come a time when Shah Solicitors realised they should not, or could not, proceed further with the application, yet persisted.

Material to the answers to these questions is the experience which Shah Solicitors had. They had acted for Jonathan Davies in his trial on drugs charges, the evidence against whom consisted in large part of mobile telephone and cell site analyses. HHJ Gilmour was presented in that case by counsel instructed by Shah Solicitors with an application which was in format an application for a witness summons. He made it clear that in his view this was totally inappropriate. As to substance – which I consider the more important point – he faced an application for Ross Patel to be permitted access to premises of a third party in order to check the methods of retrieval of data, and rejected it as misconceived, unnecessary, and disproportionate. Shah Solicitors had thus been forewarned of the approach which a court might take, and that they would need to be reasonably sure that the grounds upon which Ross Patel advised them to seek disclosure/inspection were reasonably soundly based.

It was, in my view, entirely right for Shah Solicitors to be concerned by apparent discrepancies in the data first presented by O2. Their concerns were justified by the further investigation made by O2 to recover lost data, which resulted in the position presented in court. The application for a witness summons was, however, made after that. The chronology is instructive. On 14^th November 2008, Shah Solicitors wrote to DLA Piper, acting for O2, quoting what is plainly a large chunk of Mr. Patel’s letter or report to them as to matters he wished to have clarified, and further information he wished to know. Significantly, as it now appears, the third page of this letter contains the following:

“Perhaps the ideal position would have been to have the defence retained expert witness oversee the recent reconstruction process performed at O2 UK facilities. This would have provided first-hand insight into the process and methodology as well of the results of any investigations. This would also have had the distinct benefit of allowing a dialogue to be held with those actually conducting the reconstruction process. However it is the author’s understanding that the reconstruction process has been completed and the findings accordingly served to both the crown and defence.

There may be an understandable reluctance to repeat the process……”

The letter proposed a dialogue between Ross Patel and those employees of O2 who were familiar with the processes, and had conducted the reconstruction. This was not an unreasonable request, but depended upon the preparedness of any employee to engage in such dialogue, and the willingness of O2 to permit them to do so where it might involve the discussion of anything confidential to O2 or to those who used its services. However, it was followed by a further letter of 17^th November which enclosed further requests by Ross Patel. All of these went to issues of technical queries, data quality and certification, none of which were obviously material to the question which had inspired the run of correspondence in the first place, namely the fear that the data was incomplete.

A response from O2 came on 28^th November. This asserted (entirely reasonably) that the queries raised in court and by Shah Solicitors had been answered in a series of witness statements. Importantly for present purposes, it emphasised that leading counsel then instructed for Williams had confirmed and accepted in open court that the call data records exhibited to those statements were accurate; that it had been accepted by the prosecution that they could not be said necessarily to be complete, and would not be advanced to the jury as such; and that it was irrelevant to consider the technical means by which call data had been retrieved. It concluded:

“Should your client ignore the matters set out above and make an application for the access sought by Mr. Patel, we reserve O2’s right to refer the Court to this letter on the question of costs, and we are instructed, in such circumstances, to seek from the Court a wasted costs order against your firm and your client’s counsel”

The response by Shah Solicitors was to issue the summons, to the hearing of which this application for costs relates.

DLA Piper wrote again, seeking to avoid the costs of a pointless application. In their letter (4^th December 2008) they asserted that neither Ms Sheppard nor any other employee of O2 was in a position to produce any evidence to a Court which was of material value, or to advance matters beyond those already addressed in witness statements which had already been provided. They commented (rightly, as it turned out) that the requirement for Ms. Sheppard to attend court had been driven by the need of Ross Patel to have access to O2 information, its premises and systems; asserted that the wrong procedure had been adopted to achieve this, and argued that the court had no power to grant such an application in any event (exactly as HHJ Gilmour had doubted in the earlier case of Davies.) It again warned Shah Solicitors of the risk of a wasted costs order.

Had matters stopped here, by Shah Solicitors. having second thoughts about their proposed course of action, and taking time to consider its fundamental bases, the claimed costs would not have been incurred.

It is a sound principle that solicitors acting for defendants, who may well be awkward and demanding (as I have little doubt Ricardo Williams must have been) and facing serious charges with serious consequences (as Williams did) should not easily be deterred from doing their duty in the face of adverse pressure. Finances are not easy to come by; and the fairness of a trial depends in large part upon the ability of solicitors of determination and integrity to fight their clients’ corner. Solicitors in these circumstances should not so readily be condemned as negligent, so as personally to be responsible for costs, as to provide a fetter upon their doing this duty beyond those fetters that already exist in a cash-strapped age. They should not always have to look over their shoulder, and worry about personal interest when they need to be about protecting that of their client. This must give me pause before coming to any conclusion adverse to Shah Solicitors here.

Taking this caveat into account, the approach is nonetheless that of asking whether any firm of solicitors acting with reasonable care in the context of a very serious criminal trial would have given an expert accurate, up-to-date information and instructions, have considered whether the advice given by him to them was suggesting irrelevant lines of inquiry, or have persisted in the application after the letters of 28^th November and 4^th December 2008 had been received.

In my view, the letters would (and if they did not, should) have caused Shah Solicitors to review their intended course. Had they done so, they would easily have recognised that Mr. Patel was asking for material which was irrelevant (it did not go to the completeness of the data), and should also have realised that with the concession of the crown that the material would be presented to the jury as not necessarily complete it was unnecessary for any such investigation as their expert proposed. They had been forewarned by HHJ Gilmour’s ruling and observations in Davies. Further, they should have been aware of the limits of the expertise of Mr. Patel: it was readily apparent when he gave evidence before me. The simple recitation of large parts of his advice to them shows an unreasonably uncritical approach to what he suggested, especially since there appears to have no hesitation about putting forward those further requests in the letter of 19^th November which had no obvious grounding in any issue to do with the case against Williams.

Shah Solicitors had two opportunities to reconsider. The application made was pointless, exactly as DLA Piper had contended. It became apparent that Mr. Patel had not been told by Shah Solicitors what was still in issue as to the data (hence his lengthy requests). The reasonably careful solicitor ensures that an expert who is to advise in a particular field has proper and up-to-date instructions relating to the advice he is to give. If Mr. Patel’s evidence is right (and I have nothing to the contrary) then Shah Solicitors failed in this respect. Then, when the failure was in effect drawn to their attention they did not clarify matters with Mr. Patel, and persisted bald-headedly to issue the summons.

With some sadness, I feel obliged by the legal principles I have to apply in the facts of this case to conclude that the summons was persisted in on behalf of Williams when the reasonably careful and responsible solicitor would not have done so. Only a Solicitor careless of his responsibilities and role would act in this way. The application for a wasted costs order succeeds.

As to the amount of costs to be paid, although there has been no written submission arguing that the costs claimed should not be paid in full in the event of an adverse finding, I have to say that the total (£18,745) looks on the high side if all that falls to be considered is the wasted costs of and occasioned by the witness summons. It may be, for instance, that the “attendances on documents”, on O2, and on counsel had much to do with matters which led to the correspondence leading up to the issue of the summons, and were not a consequence of the failings I have identified as culpable.

I shall therefore order that the costs are to be subject to detailed assessment, if not agreed; that they are such as post-date the 17^th. November 2008; and they are to be paid as wasted costs by Shah Solicitors to O2.