Law Report: Solicitors cannot recover appeal costs: Steele Ford & Newton and others v Crown Prosecution Service and another. House of Lords (Lord Griffiths, Lord Bridge of Harwich, Lord Jauncey of Tullichettle, Lord Slynn of Hadley and Lord Woolf). 26 May 1993.

A solicitor who successfully appeals against a costs order made against him in criminal proceedings cannot be awarded costs out of central funds.

The House of Lords unanimously allowed appeals by the Lord Chancellor's Department from the Court of Appeal's decision (1992) 1 WLR 407 that the costs incurred by solicitors in successfuly appealing against costs orders made against them by the crown court be paid out of central funds.

In each case the costs order against the solicitors had been made by the crown court judge and were not supported by the Crown Prosecution Service. The solicitors' appeals to the Court of Appeal (Civil Division) under section 50 of the Solicitors Act 1974 were successful and they were awarded costs out of central funds.

Duncan Matheson QC and Clare Montgomery (Treasury Solicitor) for the Lord Chancellor's Department; Bruce Speller (Blake Lapthorn) for the solicitors, Steele Ford & Newton, Bradburys, Robin Murray & Co and McGoldrick & Co; David Pannick QC and Gerard Clarke (CPS) for the CPS.

LORD BRIDGE said that the orders under appeal were made by the civil division of the Court of Appeal in purported exercise of a power under section 51(1) of the Supreme Court Act 1981 which provides '. . . the costs of . . . proceedings in the civil division of the Court of Appeal and in the High Court . . . shall be in the discretion of the court, and the court shall have full power to determine by whom and to what extent the costs are to be paid'.

The Court of Appeal's interpretation had the far-reaching consequence that a general power in all civil proceedings was conferred on the court to order payment of costs out of central funds whenever a successful litigant could not recover his costs from any other source.

The statutory language in the 1981 Act which was the same as in section 5 of the Supreme Court of Judicature Act 1890 could not have been intended to authorise payment by the Crown of the costs of civil litigation to which the Crown was not a party. The alternative submission was that power to order costs out of central funds was to be implied in section 50 of the Solicitors Act 1974 and in section 19A of the Prosecution of Offences Act 1985.

There was no conceivable basis on which the court could write words into section 50 to confer jurisdiction otherwise unknown to the civil division of the Court of Appeal.

Section 19A now governed wasted costs orders made against solicitors in criminal proceedings. An appeal now lay to the the criminal division of the Court of Appeal. There were no words which permitted, let alone required, the Lord Chancellor to make regulations authorising awards of costs out of central funds. The court could only make the implication if a clear reason for doing so was found within the Act.

It was just for a successful litigant and a successful appellant, to be able to recover his costs from someone. But unfortunately it was not always so. His Lordship could not attribute to the legislature any general willingness to provide the kind of public-funded safety net which the judiciary would like to see in respect of costs necesarily and properly incurred by a litigant and not otherwise recoverable.

It was impossible to say that whenever the legislature gave a right of appeal, whether in civil or criminal proceedings, in circumstances where a successful appellant might be unable to recover his costs from any other party, that afforded a sufficient ground to imply a term enabling the court to order costs to be paid out of public funds.

The courts must always resist the temptation to engage, under the guise of statutory interpretation, in what was really judicial legislation. It was difficult to visualise any statutory context in which jurisdiction to order payment of costs out of central funds could be conferred by anything less than clear express terms. The order made for payment of costs out of central funds were set aside.

R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Mirror Group Newspapers Ltd (1992) 1 WLR 412 and Re Central Independent Television plc (1991) 1 All ER 347, where costs were awarded out of central funds in different circumstances, were overruled in so far as they related to costs.

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