The solicitors appealed against a wasted costs order made by the Crown Court as to their actions in the successful defence. They had not disclosed alibi evidence on advice from counsel on being unable to obtain proofs of evidence, until the day before the trial when the defendant’s father gave a statement. The judge made the order saying that the defence should have complied with court rules requiring disclosure of alibi evidence.
Held: The appeal succeeded.
Openshaw J said: ‘We have no doubt that the practice, if such it be, of advising that the names and addresses of alibi witnesses should not be disclosed unless and until they have provided signed proofs of evidence is misguided and wrong. It is doubtless based on the concern that a defendant might be criticised if a person identified in the notice does not, in fact, give evidence. In certain cases, that might be justified; in other cases, given that the notice is triggered only by the defendant’s belief (rather than certain knowledge), it would be wrong to do so.’ However, ‘it is quite clear from the correspondence we have seen from others, including some very experienced criminal practitioners, that the view taken by counsel was quite widely held’ and ‘ applying the standards as laid down by Sir Thomas Bingham MR . . although the appellants may have fallen into error, we do not think it can be said that they were acting in a way in which no reasonably competent solicitor could have acted in the circumstances. We have no doubt that the appellants’ conduct was not improper and we are not satisfied that it was unreasonable either.’ Nor was it clear in fact that the actions criticised had in fact caused any wast of costs.
Given the guidance now given by this case a similar result may not apply in future.
Leveson LJ, Wilkie, Openshaw JJ
[2013] EWCA Crim 775, [2013] WLR(D) 210
Bailii, WLRD
Prosecution of Offences Act 1985 19A, Practice Direction (Costs in Criminal Proceedings) 2010
England and Wales
Citing:
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Legal Professions, Costs
Updated: 01 November 2021; Ref: scu.509988