Law Report: Barrister to pay wasted costs: Re a barrister: wasted costs order: Court of Appeal (Criminal Division) (Lord Justice Neill, Mr Justice Buckley and Sir Michael Davies).

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The Independent Culture
A barrister who is a sole practitioner practising from home without a clerk is under a duty to implement a system for following the listing of his cases and to attend court on the due date, and he should not rely wholly on instructing solicitors to inform him of listing details.

The Court of Appeal dismissed a barrister's appeal against a wasted costs order.

The barrister, who has practised for 12 years from home without a clerk, was instructed by solicitors to appear at Coventry Crown Court. His usual practice was to rely on instructing solicitors to notify him of the dates and times of his cases. The solicitors did not know this and did not notify him of the hearing date. The barrister failed to appear and the case was adjourned. After it had been relisted and tried, the assistant recorder conducted a hearing in chambers attended by all interested parties. He found that the barrister had caused unnecessary costs to be incurred as a result of conduct which was both unreasonable and negligent. He ordered the barrister to pay pounds 322.66 which included pounds 50.66 for the wasted costs hearing itself.

Martin Thomas QC and Jane Woosey (FB Hancock & Co, Stratford on Avon) for the barrister.

LORD JUSTICE NEILL, giving the court's judgment, said that from the wording of section 19A(1) of the Prosecution of Offences Act 1985, as added by the Courts and Legal Services Act 1990, it must always be established that the act or omission in question was improper, unreasonable or negligence, and, if so, the court must still be satisfied that in all the circumstances it was just to make an order.

The non appearance by the barrister without obvious excuse leading to the adjournment of the trial merited further inquiry. No criticism had been levelled at the procedure adopted by the recorder which was entirely proper and fair.

The normal practice among barristers' chambers was for clerks to liaise with the listing officer at the Crown Court and so be in touch with the progress of any particular case and to receive a daily list of cases to be tried the following day.

The Bar's code of conduct provides that 'a barrister must take all reasonable steps to ensure that all professional engagements are fulfilled' and that 'a barrister is at all times individually and personally responsible for his own conduct and for his professional work both in court and out of court'. The code required every barrister to take all steps which it was reasonable for him to take in the circumstances to ensure that his practice was sufficiently and properly administered and to ensure that proper records were kept, including the date of receipt of all briefs and instructions, and to make proper arrangements to ensure that he was aware of the listing of any of his cases in any court or tribunal.

It was clear that the barrister made no arrangements to ascertain the date on which any of his cases appeared in the lists, but relied entirely on arrangements made with his instructing solicitors to inform him. While barristers and their clerks might often liaise with their solicitors for various reasons, including the listing of their cases, barristers through their clerks accepted full responsibility for keeping abreast of the progress of their cases in the published lists.

A barrister could not divest himself or herself of the basic duty to follow the listing of their cases and attend court on the due day. If a barrister had relied on another in a particular instance, whether clerk or instructing solicitors, a wasted costs order would not necessarily be made in the event of a mishap. It would depend on the circumstances.

However, the system adopted by the barrister was not a reasonable one. It was not reasonable to rely wholly on instructing solicitors to fulfil the role normally carried out by barristers' clerks. He could and should have implemented a system to inform himself of the progress of his cases in the lists.

In any even the barrister did not even operate his own system properly. The recorder was right to make the order.