No: 9807495/S2

IN THE COURT OF APPEAL
CRIMINAL DIVISION
                     Royal Courts of Justice
                     Strand
                     London WC2A 2LL

                            Friday 2nd July 1999

                    B E F O R E :
 
                 THE VICE PRESIDENT
                 (LORD JUSTICE ROSE)

                   MR JUSTICE KAY
 
                           and

                 MRS JUSTICE HALLETT
 
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                    R E G I N A
 
                       ‑ v ‑
 
      STERNBERG REED TAYLOR & GILL (SOLICITORS)
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
      Tel No: 0171 421 4040   Fax No: 0171 831 8838
         (Official Shorthand Writers to the Court)
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MISS D CHAMPION appeared on behalf of the Appellant
 
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                      JUDGMENT
             (As approved by the Court)
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                   Crown Copyright

                               Friday 2nd July 1999
THE VICE PRESIDENT:  There is before the Court an appeal against a wasted costs order made on 3rd April 1998 by His Honour Judge Medawer QC, against the appellant solicitors.
      The circumstances which are material can be briefly stated.  On 25th March there was in progress, the jury having been sworn, a trial before the judge of a number of defendants, one of whom was a Mr Qadi.  He indicated that he wished to dispense with the services of his counsel and, during the course of the lunch adjournment, counsel rightly reached the conclusion that such instructions should be given in writing.
      We are told by Miss Champion, who appears before us on behalf of the solicitors, that particular difficulties arise from the geography in the vicinity of Court 10, where the trial was being held, at Snaresbrook, in that the only conference room on that floor was, at the material time, occupied, and other conference rooms in the building are on another floor. Counsel's instructing solicitor was a highly experienced solicitor's clerk.  Counsel rightly asked him to get the client's instructions in writing.  It is not clear to this Court what else, if anything, had taken place during the lunch adjournment.  But a little before the  court was due to sit, the solicitor's clerk took the client along a corridor in order to obtain his written instructions.  He took him to a place where, we are told, he knew that the jury were quite likely to be brought along that corridor on the way to court.  What happened was that, as the solicitor's clerk was carefully, conscientiously and rightly reading out to the client what it was that he was about to ask him to sign, the jury in the case passed by, within a few feet and certainly sufficiently close to hear what was being said.  What was being said, at that stage, was that the client had no confidence in his counsel and no longer wished to be represented by her or the solicitors who were then acting for him.
      It appears that the solicitor's clerk was totally oblivious to the fact that the jury were walking past at that stage.  For it was not until a few minutes later, when everyone had assembled in court, that counsel for one of the other defendants drew attention to the fact that the jury had been passing close to where instructions were being taken.
      That, as it appears to this Court, was the first time that the solicitor's clerk realised that that had happened.  What then happened in court, to cut a long story short, was that the jury had to be discharged.  Arising from that, there was a sum of the order of £1,300 which the judge concluded had been wasted in costs and in relation to which he made an order against the appellant solicitors.
      What is said by Miss Champion is that this was just an unfortunate accident for which, essentially, the lay‑out of Snaresbrook Crown Court is to blame.
      The solicitor's clerk is not to be criticised for not having gone to a different floor, to find a vacant conference room, because the judge was likely to sit very soon and might be displeased by the absence of the defendant and his solicitor.  We are prepared to assume that, in those circumstances, it was not unreasonable for the solicitor's clerk to remain on the same floor as the court; though we would not have thought it entirely beyond the wit of organisation for a message to be sent to the clerk, if he were on another floor and the judge returned.
      However, it is further submitted, or was initially submitted by Miss Champion, that, having regard to the terms of the Costs in Criminal Cases (General) Regulations 1986, there had to be established against the solicitors improper or unnecessary conduct because Regulation 3 of those regulations refers to "an unnecessary or improper act or omission." 
      Miss Champion drew attention to the difference between that wording and the wording of the Prosecution of Offences Act 1985, where a wasted costs order may be made if costs are incurred by a party as a result of  "any improper, unreasonable or negligent act or omission." Clearly there is a difference between the wording of the Regulation and the wording of the Act. Equally clearly from the transcript before us, the judge was focusing on the word "negligent". That is the word which he repeatedly uttered.  It is apparent from the order that was made, that he was making that order under the 1985 Act as well as under the 1986 Regulations.
      Accordingly the question is:  what is to be understood by negligence?  For that, one turns to the decision of the Court of Appeal (Civil Division) in Ridehalgh & Horsefield [1994] Ch 205, where, in the course of giving the judgment of the Court, Sir Thomas Bingham MR said that negligence should be understood in an untechnical way to denote failure to act with the competence reasonably expected of ordinary members of the profession.
      The question, therefore, which arises is whether, in taking these instructions, which necessarily involved oral communication between the solicitor's clerk and the client, at a place where the solicitor's clerk knew the  jury were likely to appear and being, as it seems, oblivious to the fact that they had appeared and proceeding to take the instructions at a time when they were passing, this gave rise to negligence.  It is of course implicit in what we have said that, if the re‑assembly of the court was anticipated in the very near future, it was the more likely that the jury would come this way at that time.
      In our judgment, it is quite impossible to contend that an experienced solicitor's clerk with the knowledge which this solicitor's clerk had of the geography and of their likelihood, behaved other than in a negligent fashion, in continuing to take instructions in that context at that time.  The judge, it follows, was fully justified in making the order which he did.
      We accept, of course, that the solicitors clerk was from a respectable firm of solicitors and this is the first occasion on which they have had a wasted costs order made against them.  But that, as it seems to us, cannot undercut the conclusions which we have already indicated in relation to negligence. Accordingly, this appeal must be dismissed.