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Judgment in wasted costs matter arising out of ‘No Returns’

The CBA implemented the ‘No Returns’ policy to cases falling after 7th March 2014. This policy was designed to show what happened when we removed our goodwill from the CJS. Under this policy, where counsel had a diary clash which could not be resolved through the court moving one or other of the clashing cases, counsel would return one case in the expectation that no one would pick up the return. On the final day that this policy was in effect, a Judge at Norwich CC issued a wasted costs order against the barrister who having returned her instructions so she could be elsewhere, did not attend at Norwich CC.

Simon Spence QC, acting pro bono and in the best traditions of the bar, represented her and had the wasted costs order overturned. What follows is the Judgement delivered today by HHJ Holt, the honorary recorder of Norwich. The Judgment was noted down by counsel who attended and will be replaced with the official judgment once it becomes available.

The CBA publicly expresses its thanks to Simon Spence QC, who gave up his time to deal with this matter, together with the barrister concerned who had to suffer through this ordeal.

 

Ruling in the matter of Re D (A Barrister) Norwich Crown Court 10.4.14

 

We have discussed this matter in chambers, now in open court, anything further I say will be in open court. I am going to give ruling:

 

This is a matter involving allegation against the BS who is charged with defrauding an elderly person by undertaking repairs that were not required and charging vast sums of money for it. He has previous convictions. This matter came before this court at the PCMH in January before HHJ Bate when matter was listed for trial last week.

 

Cousel who represented BS asked HHJ Bate if the date could be adjusted to fit in with her diary. It is well known that at this court we try as far as possible to accommodate counsel as in the experience of this court, by cooperating with these requests it assists both the court and the defendant.

 

I have spoken to HHJ Bate who has no recollection of the particular hearing however I have no reason to question the attendance note which Counsel sent to her instructing solicitors on the 13.1.14. It is a typed out a note and was sent to instructing solicitors following the hearing. It confirms that she had asked for it to be moved to another date however the court was unable to accommodate the request. So the trial was fixed for the 26.3.14.

 

Matter was listed on the 26th March for trial – her instructing solicitors having applied to have it taken out some 10 days before then. In the application letter, it seemed to indicate that Counsel had not returned case until a day or so before the hearing and therefore potentially in breach of her professional duties.

 

I therefore ordered for it to be listed on the 26th March without witnesses and the matter came before Deputy Circuit Judge Jacobs.

 

No one for defence appeared, unsurprisingly, Counsel having made plain she could not attend. The deputy Circuit judge purported to make a wasted costs order at that hearing. He did not specify an amount and counsel had no opportunity to put before the court her position. The matter was then sent back to me to resolve.

 

I have received an extremely helpful and well set out bundle setting out the chronology, a skeleton, attendance note and other documents. It is quite plain to me having read this that the situation is completely different to the one that was believed to be the case.

 

It is quite plain that Counsel knew at the PCMH that the trial might clash with a pre-existing fixture. Question is should she have returned it the evening of the PCMH? It is well known counsels duty is to return the brief within reasonable time so that a competent member of bar can take over that return and be fully prepared to present the defendant. This is not complicated, someone could pick this up overnight and be in a position to properly represent the defendant the next morning.

 

What did happen is this. Counsel knew that she had fixture in Leicester running at the same time. She retained the brief with the possibly that something might happen to that fixture – and indeed the trial in Leicester went short. In the meantime another of her cases at Blackfriars came in, which was chronologically in her diary earlier. That matter was more complicated with defendant in custody suffering from mental health issues and having pleaded guilty to a number of offences. She had to make profession decision about which took priority, which I understand.

 

She returned the BS case, some 15 days before which would have been plenty of time for someone else to prepare the trial. By that stage the CBA advice to members had come into effect and the no returns policy was in place. So the situation was her instructing solicitors could not brief someone else her place.

 

On her behalf, Simon Spence QC argues that in any event she is no longer party to proceedings having returned the case to her instructing solicitors. That is an interesting argument which I have no need to resolve today. I have to look at whether there are grounds to suggest or condoning the suggestion that Counsel acted unprofessionally in a manner to give rise to Wasted Costs. There are a number of matters that need to be considered:

 

  1. The Judiciary have to be entirely Independent and cannot take sides between the Bar and any dispute with remuneration it might have with the Government.
  2. Wasted Costs Orders have huge implications for a barristers career, potential for sitting as recorder, or taking silk, therefore it is essential before making such an order that full facts be ascertained and judged.

 

 

This did not happen in this case, I don’t mean to criticise the learned Deputy circuit judge as often sitting on the bench matters can get frustrating.

 

But having had regard to the documents there is no way a wasted costs order would be appropriate or anywhere near to being appropriate. Counsel and her Instructing solicitors acted entirely professionally and in those circumstances I rule that no wasted costs should be made in this case.

 

A contempt of court act order was then made preventing Counsels name from being published.

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2 thoughts on “Judgment in wasted costs matter arising out of ‘No Returns’

  1. Many Congratulations to SSQC who acted in the best traditions of the bar by acting Pro-Bono, to the Barrister who stood her ground and fought for what was right, and to the Judge for not being bound by another ruling, being open minded and to coming out with a sensible ruling.

    Thank you SSQC for putting hope back into the Bar at this time.

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