Law Society notices

Defence costs ordersThe Law Society's practice advice department has received many enquiries concerning difficulties that have arisen in recovering central funds as a result of the Costs in Criminal Cases (General) (Amendment) Regulations 1999, which oblige a solicitor to provide evidence of a client's payment of costs.

Such difficulties have since been clarified by the recent judicial reviews of the divisional court in R v Liverpool City Justices, ex parte McCormack and Liverpool City Justices ex parte Larkin.

Following is a copy of the Lord Chancellor's Department's circular confirming that such pre-payment is no longer obligatory.The costs in criminal cases (general) (amendment) regulations 1999 (S.I.

1999 No.

2096)The regulations came into force on I September 1999.

They amended, among other things, reg 6(2) of the Costs in Criminal Cases (General) Regulations 1986 by requiring the applicant to produce evidence of payment having been made of the expenses he or she is seeking to recover from central funds under an acquitted defendant's costs order.However, the Divisional Court in the judicial reviews of R v Liverpool City Justices, ex parte McCormack and Liverpool City Justices, ex parte Larkin held that this interpretation is ultra vires the Prosecution of Offences Act 1985.

However, it did not strike down this amendment but held that the true meaning of reg 6(2), as amended, is that where a defendant has actually paid privately funded costs, receipts must be given when the amount of the defendant's costs order is being assessed.

However, such payment is not a condition precedent to reimbursement.Consequently, there is now no longer a requirement on the 'appropriate authority' to see receipts or other evidence of the applicant's payment of the costs claimed unless payment has in fact been made.This in no way alters the decision of the Divisional Court in R v Miller & Glennie, 78 Cr.App.R.71; 11983) 1 W.L.R.

1056; [198313 All EAL 186; [19831 Crim.L.IL 615, QBD where it was held that costs were incurred by a party if he was responsible or liable for those costs, even though they were in fact to be paid by a third party and even though the third party was also liable for the costs.

It was only if it had been that the client should in no circumstances be liable for the costs that they ceased to be incurred by him.

Once it was shown that the defendant was the client of the solicitor then a presumption arose that he was personally liable for those costs.

That presumption could be rebutted if it were established that there was an express or implied agreement binding on the solicitors that the defendant would not have to pay those costs in any circumstances.