Case No: 2001/02034/S2
Neutral Citation Number: [2001] EWCA Crim 2375
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL  DIVISION)
ON APPEAL FROM THE CROWN COURT AT EXETER
(His Honour Judge Cottle)

Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday  7th November 2001
B e f o r e :

LORD JUSTICE HENRY
MR JUSTICE GOLDRING
and
MR JUSTICE TOMLINSON
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	MacLachlan (Solicitors)		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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C McCarraher Esq (instructed for the Appellant)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Henry:
1.	This is the judgment of the Court.  A firm of solicitors Messrs MacLachlan bring this appeal under section 19A of the Prosecution of Offences Act, 1985, against the order of His Honour Judge Cottle that they should pay £200 costs because they acted, in the judge’s words 
“... unreasonably, couching their correspondence ... in disgraceful and impertinent language and forcing a hearing upon the court.”
The court was not represented, by decision of the Lord Chancellor’s Department.
2.	The facts start a long way away.  Mr Mirzaie lived in the Taleban controlled part of Afghanistan.  He fled that country in July last year to claim political asylum here.  In his asylum claim he was and is represented by a solicitor, Mr Atkins of the Atkins Public Law Solicitors Practice in Exeter, where Judge Cottle was the Resident Judge.  For the facts, we rely on MacLachlan’s Grounds of Appeal, the correspondence between the parties (though the bundle is not complete) and the transcript of the hearing that led to the wasted costs order being made.
3.	In January 2001 Mr Mirzaie was arrested and charged with a serious sexual offence.  He saw the Duty Solicitor from the well-known Exeter firm of Stephens & Scown.  He was remanded in custody in Exeter Prison.  He knew nothing of legal procedures or the workings of the English criminal law.  He was visited by Mr Atkins to discuss his asylum claim about 16th February and complained to him that he had not seen his criminal solicitors for “several weeks”.  Mr Atkins apparently told him it was possible to change solicitors.  Mr Atkins could not act for him:  he did not have a criminal legal aid franchise.  In such cases Mr Atkins was accustomed to suggest that his immigration clients went to the appellants MacLachlan.  And so he did here.  Mr Mirzaie accordingly signed a document requesting the transfer of the legal aid certificate to MacLachlan, and signed an explanatory letter dated 16th February to the Exeter Crown Court:
“Dear Sir
I should be grateful if you could arrange for my legal aid to be transferred to Mr Mark Griffin of MacLachlan Solicitors as soon as possible.
I have not seen my current solicitors for several weeks, and in my case, it is essential to have very close contact.  An adverse finding of the Court will have dire consequences as ultimate deportation to my country would lead to my certain death.”
This was sent with MacLachlan’s letter requesting transfer, on 16th February.
4.	Twelve days later Mr Griffin, the MacLachlan partner acting for Mr Mirzaie was telephoned by the court to be told that the application to transfer legal aid to his firm had been refused on the grounds that “... the complaints are unfounded.”
5.	Mr Griffin, as his letter of 1st March to the court shows, was puzzled that the factual question whether Stephen & Scown had visited Mr Mirzaie could be resolved by the judge without a hearing, and requested that the matter be listed for such a hearing.  A date within a week was requested, because of the approach of the date when Mr Mirzaie was due to enter his plea to the serious charge he faced.
6.	Mr Griffin was then informed by the court that the judge was not then prepared to have the matter listed for hearing.  He was told that Stephens & Scown had written saying they were to visit Mr Mirzaie again on Friday to attempt to persuade him to retract his request for transfer.  This Mr Griffin recorded in his letter to the court of 6th March, complaining that it was unsatisfactory to have the issue decided “... on an ex parte basis ...” objecting that to do so was a breach of natural justice, and of Article 6 - the right to a fair trial.  It was not a diplomatic letter, and it would have been better had it been.  It “required” a written explanation why the transfer had been refused, and why the issue had not been listed to be properly resolved.  It threatened requests for regulatory investigation.  It was written in the form of a letter before action in judicial review proceedings.
7.	The court replied with an admirably restrained letter on 7th March.  First, it enclosed the guidance the court had received from the Senior Presiding Judge relating to transfers of legal aid:
“Only in exceptional cases will an application to transfer be granted since most cannot be justified.
Please note that:
[a]	An application will not normally be granted where:
[ii]	no reasons are given
[ii]	‘loss of confidence’ is claimed.
[b]	Complaints about present solicitors’ conduct will not be considered until an opportunity to respond has been given.
[c]	A threat by a defendant that he/she will represent himself/herself at trial if the application is granted will carry no weight.
[d]	the agreement of the present solicitor to transfer will not be persuasive.”
8.	Next, the judge said he was not refusing a request for a hearing.  He was giving Stephens & Scown time to have a meeting with Mr Mirzaie on Friday 9th March:
“The judge considers it sensible to wait until this has taken place in order that the Court may have the fullest information before it.”
9.	On 9th March Stephens & Scown had their meeting with Mr Mirzaie.  By his account to Mr Griffin, he still wished MacLachlans to represent him.  By Stephens & Scown’s account, they had been given the clear impression that Mr Mirzaie had accepted the court’s decision, and was content for Stephens & Scown to act.  And, of course, they were obliged to act under the legal aid certificate until the court ordered its transfer elsewhere.
10.	It seems that MacLachlans may not have appreciated this.  MacLachlans had written to Stephens & Scown (in a letter not in the bundle, but whose contents can be inferred from the reply to it) threatening to report Stephens & Scown to the Officer for the Supervision of Solicitors unless they sent MacLachlans the papers in this matter forthwith. Stephens and Scown explained:
“... we act for Mr Mirzaie until the Exeter Crown Court says otherwise.”
11.	Mr Griffin then wrote to the court a letter of 14th March formally requesting the transfer of the legal aid certificate to his firm.  He stated:
“We are also extremely concerned that the court appears to be favouring a local firm of solicitors.”
He explained Mr Mirzaie’s predicament as an asylum seeker, and his loss of confidence in Stephens & Scown because of their initial failure to visit him or explain to him what was happening.  Failing transfer of the certificate on paper, they asked for a hearing on the issue of transfer at which Mr Mirzaie should attend, and requested that this issue was not tried before His Honour Judge Cottle.  That request was misconceived:  Judge Cottle was responsible for questions of transfer, and there was no reason for him not to sit (see paragraph 18 and 19 below).  Again, judicial review was threatened.
12.	It then seems that the court initially had in mind a hearing at which Mr Mirzaie was not present.  Mr Griffin wrote on 15th March expressing the view that without Mr Mirzaie the meeting would be of little or no use.  He said he would not attend unless Mr Mirzaie was brought up.  Otherwise he would proceed by way of judicial review.  The hearing on the question of transfer was fixed for 20th March.  Stephens & Scown arranged for Mr Mirzaie to attend, and for an interpreter to be present.
13.	At the hearing Stephens & Scown were represented by a partner, Mr Nunn, and Mr Porter of counsel represented MacLachlans.  The judge opened the proceedings by stating that MacLachlan’s had:
“... by their subsequent correspondence and general behaviour, forced a hearing on the court.”
Mr Nunn then applied for his firm to withdraw from the case, on the basis that Mr Mirzaie had cancelled an arranged visit on 13th March, had refused to see them on the 14th, and had again refused shortly before the court sat.  Before the judge dealt with this, he enquired of Mr Nunn:
“... how it comes about that a defendant on remand in Exeter Prison is, so to speak, sought out by a firm of solicitors practising in Sherborne.”
14.	While these exchanges were taking place, the judge had not called on counsel for Mr Mirzaie.  When finally called on he gave the court all the information to be found in the first three paragraphs of this judgment.  He explained how MacLachlan’s came to be instructed, how Mr Atkins came to see him on remand, and how, on remand, he was “... left alone for a month ...”, with not a visit, nor any written communication.  Counsel concluded by saying that Mr Mirzaie had a qualified right to choose his legal representative and he made that choice as soon as he reasonably could, given the limitations of his English, that he was without a grasp of our legal system, and that he was initially not visited by his allotted advisors.  The judge responsibly indicated that he had not been aware of that history to the case.  But he found:
“The real issues relating to this matter have never been put before this court until this morning, and the blame for that is entirely to be laid at the door of your instructing solicitor.”
15.	Having so found the judge concluded that there was “good cause” for the transfer of the legal aid certificate and so ordered its transfer to MacLachlans.
16.	The judge then held that the attendance of Mr Mirzaie had not been necessary, and consequently that the attendance of the interpreter had not been necessary.  He estimated the cost of the interpreter’s attendance at £200, and ordered MacLachlans to pay that
“... because in my judgment they have acted unreasonably, couching their correspondence in disrespectful and impertinent language, and forcing a hearing on the court.  They will pay [£200] towards the costs.”
17.	The solicitors have an appeal as of right against that order, and it is that they exercise today.  The jurisdiction is conferred by section 19A of the Prosecution of Offences Act, 1985.  The order made was a wasted costs order, and the section defines them:
“... wasted costs means any costs incurred by a party-
(a)	as a result of any improper, unreasonable, or negligent act or omission on the part of any representative
(b)	which, in the light of any such act or omission occurring after they were incurred, the court considers it reasonable to expect that party to pay.”
18.	We accept with gratitude the distillation of the authorities on wasted costs orders to be found in the judgment of Kennedy LJ in In re “P”, 23 July 2001, Case No 00/5799/S2.  There he set out the basic principles:
“The three cases we have cited thus far concern solicitors because until relatively recently orders could not be made against barristers, but the message is clear, namely-
(1)	the primary object is not to punish, but to compensate, albeit as the order is sought against a non-party it can from that perspective be regarded as penal.
(2)	the jurisdiction is a summary jurisdiction to be exercised by the court which has ‘tried the case in the course of which the misconduct was committed.’
(3)	Fairness is assured if the lawyer alleged to be at fault has sufficient notice of the complaint made against him, and a proper opportunity to respond to it.
(4)	Because of the penal element a mere mistake is not sufficient to justify an order.  There must be a more serious error.
(5)	Although the trial judge can decline to consider an application in respect of costs for example on the ground that he or she is personally embarrassed by an appearance of bias, it will only be in exceptional circumstances that it will be appropriate to pass the matter to another judge, and the fact that, in the proper exercise of his judicial functions, a judge has expressed views in relation to the conduct of a lawyer against whom an order is sought does not normally constitute bias or the appearance of bias so as to necessitate a transfer.
(6)	If the allegation is one of serious misconduct or crime the standard of proof will be higher, but otherwise it will be the normal civil standard of proof.”
19.	Propositions 2 and 5 show that the judge was right to try this matter himself (see paragraph 11 above).
20.	Proposition 3 is a natural justice point.  MacLachlans believed the hearing to be for the question of transfer, where they were acting for Mr Mirzaie.  That was a correct analysis.  They were not told that it was to be a wasted costs hearing.  No charge was formulated against them.  The firm was represented only by a clerk of a few weeks service.  They appeared as solicitors acting for Mr Mirzaie, and not as respondents in a wasted costs application.  They had no prior notice of the complaint against them.  Those objections would be sufficient to quash this order.  But we will go on to consider the merits.  There too we go to Kennedy LJ’s judgment, where at paragraphs 46 and 46 he sets out a three-stage test:
“45	In Re a Barrister (Wasted Costs Order) (No 1 of 1991) [1993] QB 293 the court set out at 310G a three stage test to be adopted when an order is sought against a barrister, namely-
‘(1)	Has there been an improper, unreasonable or negligent act or omission?
(2)	As a result have any costs been incurred by a party?
(3)	Should the court exercise its discretion to order the lawyer to meet the whole or any part of the relevant costs?’
46	Only if all three questions are answered in the affirmative will an order be made.  That three stage test was approved by the Court of Appeal in Ridehalgh -v- Horsefield [1994] Ch 205, and was adopted by the trial judge in the present case.  In Ridehalgh Sir Thomas Bingham MR considered the definition of wasted costs which is to be found in the statute, and said at 232E that-
‘Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code.’
As to negligent conduct, he said, at 233C-
‘“negligent” should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession.  ... acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would given or done or omitted to do.’
At 233E he said that the words used to describe conduct which can give rise to wasted costs overlap-
‘We do not think any sharp differentiation between these expressions is useful or necessary or intended.’”
21.	Dealing with stage 1, the judge made clear in the course of the hearing that the negligent act was causing there to be an unnecessary hearing requiring an interpreter.  But such a hearing was likely if not inevitable from the moment that the judge was reported as having rejected out of hand Mr Mirzaie’s complaints that his appointed solicitors had not seen him for “several weeks” (see paragraph 4).  The judge had been reported as refusing the request on the grounds that “... the complaints are unfounded ...”.  To resolve that issue, Mr Mirzaie’s evidence would have to be heard on the matter.  Mr Griffin believed that such an issue required a hearing, and that was a reasonable belief.
22.	Therefore, in our judgment, if that central fact was in issue (and the judge made his preliminary views on it plain at the hearing:
“I find it a startling proposition that anybody who has the good fortune to be represented by Stephens & Scown [illegible] cause for complaint.”
such a hearing would have been necessary in any event.  Therefore the cost of it was not wasted.  And in the event, the cost of the interpreter was not wasted, because at the judge’s request Mr Porter went, after the hearing, to discuss the case with his client.  This would have required the interpreter.  Accordingly, in our judgment the costs it is sought to recover were not wasted.  The hearing was inevitable and the services of the interpreter were used.  Accordingly, this wasted costs order should never have been made and is quashed.
23.	We turn to Mr Griffin’s ill-judged correspondence.  His letters were haughty, autocratic and regularly out-bid his hand.  They were ill-judged, but not intemperate.  They were not, in our judgment “... improper, unreasonable or negligent ...” in their statutory context - see Sir Thomas Bingham MR in Ridehalgh -v- Horsefield [1994] Ch 205.  They were not improper in the disciplinary sense.  Nor were they “unreasonable”.  As Sir Thomas Bingham, MR  said in Ridehalgh -v- Horsefield (above) at 232E-F, unreasonable
“... aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case ...  But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently.  The acid test is whether the conduct permits of a reasonable explanation.  If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner’s judgment, but it is not unreasonable.”
24.	Accordingly, this wasted costs order is quashed.  No application for costs was made to us by the appellants.  We would have refused such a request, had it been made.