Blog 17th Jul 2014

Wasted costs orders against prosecuting bodies: Some good news for privately paying defendants

For privately paying clients, one of the most frustrating aspects of the early stages of proceedings can be the interminable delays in the Magistrates Court getting the case sent for trial. These delays arise in a number of ways but not infrequently adjournments are caused by inefficiency on the part of the CPS, who have failed to get the right file / lawyer / officer to Court. To add insult to injury, it has historically been very difficult to persuade the Court that the CPS should bear the cost of these wasted hearings, with the result that the client’s case is not only unnecessarily delayed, but he or she also ends up paying for the privilege.

The good news, however, is that a recent decision of the High Court may have signalled a sea change in the extent to which the Crown should be indulged for such inefficiencies. In R (on the application of Singh) v Ealing Magistrates Court [2014] EWHC 1443 (Admin) (click here for the judgment), the Administrative Court was asked to review the decision of a District Judge who had refused to make a Wasted Costs order in these circumstances. In that case, Mr Singh had attended at the Magistrates’ Court to enter a plea. The case was adjourned because the CPS did not have the file at Court. The District Judge refused to make a Wasted Costs order against the CPS. Mr Singh appealed. Before the Administrative Court, the CPS sought to argue that, under the provisions of s.19 of the Prosecution of Offences Act 1985, it was necessary for the applicant to show some form of impropriety on the part of the defaulting party in order to succeed in obtaining a Wasted Costs order. In addition, the Crown submitted that, in the present climate of stretched resources and budget cuts, mistakes can easily be made.

The Court was having none of it. In allowing the appeal, it made the following observation:

“We reject the submission that a mere mistake without repetition cannot be grounds for an order under section 19. There is no doctrine in this area that every dog is entitled to one bite. If the act or omission giving rise to the application consists of someone on the prosecution side […] not conducting the case properly, and it causes the defendant to incur additional costs, the discretion arises”.

Equally, the Court was having no truck with the suggestion that the CPS is overborne, observing that such considerations are subservient to the overriding objective under the Criminal Procedure Rules 2005, which requires cases to be dealt with justly. A ‘just’ disposal brings with it an element of expedition. Indeed, the Court was prepared to go further, stating that:

“The culture of adjournment which still plagues the criminal justice system will not be defeated unless in appropriate cases courts are prepared to use their powers to make orders for costs under section 19 of the 1985 Act”.

Whilst the robust nature of these observations will be of comfort to defendants, the Court was keen also to sound a note of caution. The effect of the decision is that any default in these circumstances will give rise only to a discretion under s.19 of the Act, not a duty. Nonetheless, the case still represents significant progress and it’s good to see the Administrative Court putting bite before its bark.

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