8.1 Costs against Legal Representatives - Wasted Costs

Section 19A of the 1985 Act permits a Magistrates’ Court, the Crown Court or the Court of Appeal Criminal Division to disallow, or order the legal or other representative to meet the whole or part of the wasted costs. Such an order can be made against anyone exercising a right of audience or a right to conduct litigation (in the sense of acting for a party to the proceedings). ‘Wasted costs’ means costs incurred by a party (including an LSC funded party) as a result of any improper, unreasonable or negligent act or omission on the part of any representative or his employee, or which, in the light of any such act or omission occurring after they were incurred, the court considers it unreasonable to expect that party to pay.

The power is purely compensatory and the costs that can be ordered to be paid will be those, and only those, which the default has caused. There is nothing that should be added to this figure to mark the disapproval of the court or by way of deterrence: Holden v Crown Prosecution Service [1991] All ER 368. The jurisdiction extends only to costs. The court has no power to award damages for acts done in the conduct of the proceedings.

8.2 The procedure is set out in Part VIII of the Practice Direction http://www.courtservice.gov.uk/cms/media/costs_pd_180504.pdf
(which substantially reproduces the guidance given in Wasted Costs Order No.1 of 1992 [1993] QB 293. The Practice Direction emphasises that the Judge has a much greater and more direct responsibility for costs in criminal proceedings than in civil and should keep the question of costs in the forefront of his or her mind at every stage of the case, being prepared to take the initiative without any prompting from the parties if appropriate.

8.3 Under Regulation 3B of the General Regulations the court must specify the amount of the wasted costs and before making any order must allow the legal or other representative, against whom the order is proposed to be made, to make representations. In making an order under this section the court must take into account any other orders for costs and equally must consider any wasted costs order when deciding what other costs orders to make. There is an obligation on the court to give reasons for making the order and to notify any interested party (which will include both the CDS Fund and Central Funds Determining Authorities) of both the order and the amount thereof.

8.4 The power to make an order cannot be delegated but the court may require the appropriate officer of the court to make enquiries and to report to the court as to the likely amount of costs incurred. Under paragraph 16 Schedule 1 of the Criminal Defence Service (Funding) Order 2001 http://www.legislation.hmso.gov.uk/si/si2001/20010855.htm
a Determining Officer is authorised to disallow the amount of the wasted costs order from the amount otherwise payable and to disallow a greater amount if appropriate.

8.5 Where it considers it appropriate to do so the court may postpone the making of a wasted costs order to the end of the case. Examples might be where the likely amount is not readily available or where there is a possibility of a conflict between legal representatives as to apportionment of blame or whether the legal representative concerned is unable to make full representations because of a possible conflict with his duty to the client.

8.6 The fact that the client of the legal representative concerned is CDS-funded is not a ground for not making an order. However, if the court is minded to disallow substantial costs out of the CDS Fund it may, instead of making a wasted costs order, make observations to the determining authority that work may have been unreasonably done. This practice, however, is not recommended and should only be used where the extent of the amount of the costs wasted is not entirely clear.

The Administrative Court

8.7 The Administrative Court also has the power to make a wasted costs order but these powers arise by virtue of Section 51(6) of the Supreme Court Act 1981. The procedure is governed by CPR 48.7 http://csi01/latestcpr/contents/parts/part48.htm, which contains similar provisions as to giving the legal representative a reasonable opportunity to attend a hearing to show cause why the court should not make a wasted costs order.