Wasted Costs and the CPS
It is interesting to read two recent decisions on wasted costs applications by the defence against the CPS particularly in the newish world where privately paying defendants are unable to recoup the costs of a successful defence. In Geoffrey Counsell, Bristol Crown Court, 13 March 2014, Mr Justice Simon ruled on an application brought by the defendant's solicitors for wasted costs in circumstances where it was alleged that the Crown ought to be held to account in costs for bringing gross negligence manslaughter allegations. This was the well known case where a firework display had led to a fatal accident on the M5. Mr Justice Simon conducted a comprehensive review of the relevant law (an unnecessary or improper act or omission - s19 Prosecution of Offences Act 1985) and the authorities before ruling decisively for the Crown. Realistically, decisions to prosecute could only be the subject of an application for wasted costs where the decision was based on unlawful policy, a failure to act in accordance with set policy or it was perverse in the Wednesbury sense. In this case, the applicant had fallen some way short of proving this: "litigation (whether civil or criminal) is inherently subject to uncertainty and contingency; and any advice is likely to highlight these risks: witnesses who do not come up to proof, new material which may lead to experts changing or modifying their opinion and unanticipated flaws in the evidential basis of the charge. The Court cannot approach a wasted costs application with the vision of hindsight. It must take a robust but not over-analytical view of what occurred, and unless the impropriety is clear and egregious, it should not countenance a detailed forensic examination of what occurred with a view to making a wasted costs order". The decision can be contrasted (but not compared) with that in the Divisional Court in R (on the application of Maninder Singh) v Ealing Magistrates Court  EWHC 1443. The facts of this case relate to circumstances not entirely unknown by criminal defence practitioners. Mr Singh had turned up to the Magistrates Court with his solicitor to plead to drugs and driving offences but the prosecution did not have a file. The case was adjourned and the deputy district judge refused the application for wasted costs on the basis that he was unable to identify against whom such order ought to be directed (presumably police or CPS). In fact, counsel for the CPS accepted this was not a proper basis to reject the application but submitted that the order should not have been made because of a 'mistake' and the impact of the spending cuts on resources. Mr Justice Bean said: "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...we also reject Mr Richardson's argument based on current pressure on resources...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."
Articles are intended as an introduction to the topic and do not constitute legal advice.