Court upholds wasted costs order

The Court of Appeal has upheld a wasted costs order against a Buckinghamshire firm, ruling that it was ‘complicit’ in its client’s ‘manipulation’ of the court process by failing to give reasons for opposing a hearsay notice in a criminal trial.

The Law Society said the judgment raises difficult questions for solicitors and puts ‘considerable tension’ between their duty to their client and to the court. The court was dismissing an appeal against an order made by Judge Pawlak at Wood Green Crown Court that the appellant solicitors, SVS, should pay £3,042.50 in respect of costs incurred by the Crown Prosecution Service in flying a trial witness from Australia.

The case concerned Luke Nseki, who was jailed for 10 years on a burglary charge. Contrary to criminal procedure rules, his defence had opposed without giving a reason a hearsay notice served by the CPS requiring the attendance from Australia of a witness.

On the day of the trial, the defence solicitor served an unsigned defence statement on the prosecution. He later withdrew after being professionally embarrassed. The trial resumed with a new defence solicitor who served a new defence statement, stating that the previous unsigned statement had not been authorised and that the evidence of the witness could be read.

The trial judge said that the defence’s withholding of the grounds for opposing the Crown’s hearsay notice was ‘deliberate’, ‘improper’ ‘unreasonable’ and ‘negligent’ conduct. He said that professional legal privilege was not relevant: solicitors owe a duty to the court and could not break the rules with impunity.

Upholding the decision, the appeal court said that the defendant Nseki was ­‘manifestly seeking to manipulate the court’s process’. By insisting on the appearance of a witness without disclosing the defence case, the court said SVS ‘made itself complicit in the manipulation’. SVS said it is consulting counsel regarding an appeal.