Case No: 200803952/C2 
Neutral Citation Number: [2008] EWCA Crim 3085
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 28th November 2008
 
B e f o r e:

SIR ANTHONY MAY
(PRESIDENT OF THE QUEEN'S BENCH DIVISION) 

MR JUSTICE SIMON 
 
MR JUSTICE BLAKE 
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R E G I N A 

v 

ANGELA TAYLOR SOLICITORS 
APPEAL UNDER S.3(C) OF THE COSTS IN CRIMINAL CASES REG 1991 
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Mr P Hodgkinson appeared on behalf of the Appellant 

J U D G M E N T 

1.	SIR ANTHONY MAY:  This is an appeal against a wasted costs order, made in the Manchester Crown Court by His Honour Judge Blake on 19th June 2008, against a firm of solicitors called Angela Taylor Solicitors, for £1550.  No point is taken about the amount.
2.	The solicitors were instructed for a defendant in criminal proceedings who was charged with offences of violence against his ex‑partner.  It was thought that evidence from the local authority about a foster child might assist the defence.
3.	It was correctly considered that the local authority would and should not disclose this material without being ordered to do so by reason of its nature.  So Mr Doherty, of the solicitors, set about applying for a witness summons and on 29th April 2008 sent the local authority a copy of the summons in draft.
4.	On 1st May 2008 the Recorder of Manchester refused the application and Mr Doherty was told this that evening by the Recorder himself, albeit informally.  But the local authority did not know this and were in the dark about whether they were required to attend with documents or not at a hearing which, in the event, was to take place on Tuesday 6th May 2008, the Tuesday after the May Bank Holiday.
5.	The local authority telephoned the solicitors twice on the Thursday and Friday, the 1st and 2nd May, and they sent a fax which was timed to arrive before 4 o'clock on the Friday.  They received no answer.  Mr Doherty was out of the office and did not see the fax until Tuesday morning.  There is no specific material before this court as to any system in his office for collecting and responding to faxes arriving at around 4 o'clock on a Friday afternoon when he was out of the office.  In the event, not knowing that the application for the witness summons had been refused, the local authority attended court by counsel and their costs of doing so were wasted.  
6.	The judge in making the order held that it was incumbent upon Angela Taylor, who had set the ball rolling, to tell the local authority that the application had not been granted and that they need not attend.  It is submitted, with reference to section 19B of the Prosecution of Offences Act 1985 and the Practice Direction (Costs in Criminal Proceedings) [2004] 2 All ER 1070, that the court in order to make a wasted costs order, needs to conclude that there was serious misconduct by the party against whom the application is made ‑ that expression comes from section 19B(3) of the 1985 Act ‑ or an improper, unreasonable or negligent act or omission (that comes from the Practice Direction), and that this should not have been found because again, in the terms of the Practice Direction, this was no more than a mere mistake insufficient to justify an order and not a more serious error which it is submitted this was not.
7.	It is a short point.  It appears, firstly, that the judge made the order with an eye to the fact that he thought that there was an obligation on the solicitors to inform the local authority that the witness summons had not been issued.  We are not at all sure about that.  In our judgment, the central error, if error there was, looks as if it was that the solicitors did not have a system in place when Mr Doherty was out of the office on a Friday afternoon, to pick up incoming faxes and to respond to them if there was an urgency to do so.  Mr Hodgkinson says that it is not irrelevant that the local authority could have contacted the court to find out for themselves whether a witness summons had been issued or not.  But the burden of his submission is that this was no more than a mere mistake and it certainly was not a more serious error or serious misconduct.
8.	We have given this careful consideration and we are persuaded that this submission is correct.  It was, of course, unfortunate that this error took place.  We think it was an error but to characterise it as a "serious error", or more importantly "serious misconduct", in our judgment, went too far.  Accordingly this appeal is, for that reason, allowed.  The wasted costs order will be quashed, if that is the appropriate thing to do.
9.	MR HODGKINSON:  I am grateful.  There is one further matter.  It relate to costs of course.  I have attended on a pro bono basis, I wonder whether your Lordships would award costs to be taxed in the circumstances of the‑‑ 
10.	SIR ANTHONY MAY:  Who is going to pay them? 
11.	MR HODGKINSON:  Sorry?  
12.	SIR ANTHONY MAY:  Who is going to pay them? 
13.	MR HODGKINSON:  An application to Central Funds is my understanding.  It would be limited to my‑‑ 
14.	SIR ANTHONY MAY:  You are not suggesting the local authority should pay these costs? 
15.	MR HODGKINSON:  No.
16.	SIR ANTHONY MAY:  Do you want to say any more in support of that? 
17.	MR HODGKINSON:  Not really, we are grateful for the opportunity. 
(The Bench Conferred).
18.	SIR ANTHONY MAY:  Mr Hodgkinson, we have sympathy in the circumstances that you may be here pro bono, but we do not think it is right to order that the costs be paid out of Central Funds.  Thank you very much.