Wasted Costs Orders

Answer

Yes. When a court is considering making a Wasted Costs Order, it should follow the guidance set out in the provisions of the Practice Direction (Criminal Proceedings: Costs) (PDF 288kb) [2010] 1 WLR 2351 at part 4.2: ‘Costs against Legal Representatives – wasted costs', together with the general principles and guidance set out by Sir Thomas Bingham MR (as he then was) in Ridehalgh v Horsefield (1994) Ch 205 CA (Civ Div) and the House of Lords in Medcalf v Mardell (2003) 1 AC 120 HL.

Of particular importance are the following requirements:

• The court must formulate carefully and concisely the complaint and grounds upon which a Wasted Costs Order may be sought.
• The court should allow the solicitor to make representations. The solicitor should formally be told clearly what he or she is said to have done wrong and invited to comment.
• The solicitor alleged to be at fault should be given sufficient notice of a complaint made against him or her, and given a proper opportunity to respond to it.
• The court should make full allowance for the possible difficulty caused by client confidentiality / legal professional privilege for a legal representative in answering criticism.
• Where a legal representative is precluded by legal professional privilege from giving a full answer to any criticism, a court should not make such criticism unless, proceeding with extreme care, it is satisfied that there was nothing that the representative could say, if permitted, to answer the criticism and it was in all of the circumstances fair to make such criticism (see Medcalf v Mardell (2003) 1 AC 120 HL).
• The court must be satisfied that there has been an improper, unreasonable or negligent act or omission and that, as a result, costs have been incurred by a party. A mere mistake is not sufficient to justify an order – there must be a more serious error. The primary object is not to punish but to compensate. See the analysis of these terms by Sir Thomas Bingham MR in Ridehalgh v Horsefield (1994) Ch 205 CA (Civ Div).

The principles of the court's Wasted Costs Order jurisdiction (especially in relation to the solicitor's duties when a client fails to attend trial) were reviewed by the Court of Appeal (Criminal Division) in Re: Mr Harry Boodhoo, Solicitor [2007] EWCA Crim 14 and practitioners are encouraged to read the court's judgment.

For more information, please see the Law Society's practice note on Criminal Procedure Rules 2011.