Advocates must sometimes resist the temptation to keep the brief in-house and avoid being in a position where they are unable to attend court if they want to escape wasted costs orders, says Lucy Corrin
In R v Henrys Solicitors  EWCA Crim 1480, the advocate had two sentencing hearings for different clients listed in both Manchester and Derby on the same day. The Derby matter was listed at 2pm and a request was made for an early Manchester hearing. The Manchester matter was more complicated and required an assessment of dangerousness by the sentencing judge. It was hoped that she would arrive in Derby in time. The advocate took the view, according to the Court of Appeal, that it was reasonable to take the risk that she might, as a result of a delay at Manchester in the morning, be unable to meet her commitment in Derby in the afternoon. No back up arrangement was made to try and cover the Derby hearing. Counsel kicking their heels in the robbing room at Derby did not receive a frantic call over lunch to take over the brief. Although the court were kept informed, the judge ordered a wasted costs order when the Manchester matter overran and the advocate simply did not attend in Derby.
It is every advocate’s worst nightmare to incur the displeasure of the judge by over-committing themselves in different courtrooms within the same building, let alone courts 80 miles apart. All advocates need to be mindful of section 19A(1) Prosecution of Offences Act 1985. Under this provision, the Crown Court may order the legal or other representative concerned to meet the whole of any wasted costs as may be determined in accordance with regulations. By section 19A(3) of the 1985 Act, wasted costs means any costs incurred by a party as a result of any improper, unreasonable or negligent act or omission on the part of any representative or any employee of a representative.
The enquiry was conducted by HHJ Mithani QC who concluded that, even if further efforts had been made to secure representation in Derby on 13 January, he would still have made the order. He concluded that it was Miss Bennett’s duty to be present and she was not. The hearing, he said, should have been covered.
The Court of Appeal upheld the order but differed on the reasons why it ought to stand. The court disagreed that a wasted costs order was the automatic corollary of failing to appear at the listed time on the listed day. It depended entirely on the circumstances, and the making of the wasted costs order must depend upon the test provided by the regulations.
However, the court criticised the conduct in this case of accepting instructions in two courts at considerable distance from one another, approximately a two hour drive away. “In our judgment, no advocate should accept instructions in two cases on the same day in geographically distant Crown Courts when there is a real risk that a hold-up at the first court may result in wasted costs being incurred in the second. The advocate’s first duty is to the court and that duty is not fulfilled by clinging to a brief in the hope, rather than the expectation, that both commitments can be fulfilled. In our judgment, Miss B’s undertaking of the risk, because that is what it was, was negligent and clearly so,” the court said.
This was not a case of mentions in adjoining courtrooms or dashing between Inner London Crown Court and Blackfriars Crown Court from morning to afternoon. The risk was much more obvious. So what should you do if placed in this position? Well if you had wrongly taken the risk in the first place, the court suggested the only viable alternative was to instruct someone else to attend. There were counsel available that day in the robbing room at Derby but the desire to keep the brief ‘in-house’ outweighed the advocate’s duty to the court. This error of judgement was perhaps compounded by the nature of the afternoon brief, a guilty plea to simple possession of cannabis. Court time is precious and judges aggravated by holding up simple matters, when in reality, any advocate could have picked up instructions at court.
Realistically, these sorts of fine judgements happen every day as fees are cut and work becomes highly prized and conspicuously guarded, especially for junior advocates eager to please their employer, instructing solicitor or clerks. This is a clear message from the Court of Appeal that the court comes first, regardless of the individual advocate’s interests, instructing solicitors or chambers.
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