What's the point any more?

Not my judge... but might as well have been

I had the joy of travelling to court today for a wasted costs hearing.

If you don’t know, where costs are incurred by a party to proceedings because of an improper act or omission by another party the court may award costs against the party who did the improper act or omitted to act.  These are known by lawyers as wasted costs.  This is important because it allows a party to recover costs they would not have incurred but for the other party’s error.  This can be used by the prosecution or defence in criminal proceedings.  It is not an easy test to meet and the party making the application must show that there was something improper about the other party’s act or omission.

In my case, the Defendant had been acquitted.  More correctly, the prosecution had discontinued the case the day before trial despite being aware that they had no case since the very first court hearing.  Had they acted properly at that first hearing they would have discontinued the case immediately.  Because they did not the Defendant was forced to defend himself.  We thus argued that the Crown had omitted to act and that their failure had resulted in unnecessary costs to the Defendant.

The judge at today’s hearing heard the arguments on both side, read the written submissions and agreed with the Defence submissions that the Crown’s failure to act was improper.  He rejected all of the prosecution’s arguments and criticised their approach to defending the wasted costs order.  The District Judge said:
“In this case investigation was poor from the outset.  The Defence drew the Crown’s attention to a major defect [in the Crown’s case] and the Crown failed to respond expeditiously or notify the Defence of their conclusion to the point where this got to within 24 hours of trial before discontinuance.”

The Crown had sought to rely upon their lack of resources as a defence to the wasted costs application.  The DJ criticised their response to our application thus:
“Singh v Ealing Magistrates’ Court tells us that pressure on resources is no defence.  It is a pity that the Crown’s skeleton argument is a cut and paste job that includes parts from many other skeletons that have come before me.  It pleads ‘lack of resources’ despite Singh and it is not specifically directed to this application.”

The DJ went on to complain about consistent and repeated failures by the Crown to comply with court orders and the Criminal Procedure Rules.  He ruled that:
“There has been an improper omission to review the case expeditiously… I take the view that because of that failure the Defence has been put to additional work.”

Much to my surprise he then declined to make a wasted costs order saying that he was exercising his discretion not to make such an order; however, he did make a Defence Costs Order.  The problem for the Defendant is that a DCO is capped at a very low hourly rate; however, wasted costs orders are not capped and so the applicant can recover what they have actually spent.

So, the Defendant is now in the position of having been prosecuted for a crime he didn’t commit.  He’s been put to additional expense because of failings by the prosecution.  He’s done absolutely nothing wrong.  Despite all that he’s left out of pocket.  I don’t understand why and I doubt he does either.


  1. That's gotta go off to the HC, no?

  2. Why does he have that discretion? Surely the conclusion should be based on the facts, not a DJ's whim...

  3. I would think some explanation for using this discretion would be in order.

  4. Yes, I will advise that they go to HC but I suspect client will be unable to fund it... these are not exactly the richest portion of the population sadly.

    Explanation given was that "the applicant can recover costs under a Defence Costs Order".

    1. Well a portion of them eh?

  5. Its just business. You know it, and if you don't your ignorant.


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