In the Media

Costs? What the devil is going on?

PUBLISHED September 25, 2012

Tuesday 25 September 2012 by S Bassra

"so, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, i'd cut down every law in England to do that!
Sir Thomas More: Oh! And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, mans law, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

The principles of the code of conduct, require solicitors to: 'Uphold the rule of law and the proper administration of justice.' And to 'act in the best interests of each client'. Where the two are in conflict, the proper administration of justice takes precedence.

These two principles came into conflict in the case of Regina v SVS Solicitors. Throw into the mix the duty of confidentiality and the concept of law known as legal professional privilege, and we have all the ingredients of a first-class disaster. Though a wasted costs order was made against the firm and upheld in the Court of Appeal, the firm may come out of all this better than the Crown court and the Crown Prosecution Service.

This case shows how careful you have to be when representing a defendant determined to use the rules to his own best advantage, regardless of the cost and trouble to the prosecution and the courts. The reward for handling a difficult client can be a wasted costs order if you are not careful. And, perhaps, even if you are!

The defendant, having given a no comment interview, refused to serve a defence case statement. Not only that, but when it was realised that one of the prosecution witnesses was in Australia the defendant appears to have invented a story to take advantage of the situation (I say that as he changed his story readily enough when it suited him). There was a witness who had gone to Australia, and this was Mr Amoako who had been the lodger in the attacked premises. His room was on the ground floor. The family were upstairs when three men wearing balaclavas broke into the house by smashing the patio doors in the kitchen. They then ran upstairs shouting, 'police!'.

They tied the family up and demanded to know where the safe and drugs were. One of them received a phone call indicating that they had broken into the wrong house. Mr Amoako had escaped through his ground-floor window and called the police, but when he bought them back to the house the men had ran off. The police followed the noise of one of the men running through the gardens and over fences. They arrested the defendant and found a balaclava near where he had first been seen. It had his DNA on and his clothes had glass fragments from the two types of glass broken by the perpetrators.

He gave instructions to say he had been in a secret homosexual relationship with Mr Amoako and had come to the house on a borrowed scooter, had worn the balaclava under his helmet and had been let into the ground floor bedroom by the witness who had then told him to leave when the break-in occurred. He had gone out through the kitchen and had then been caught by the police.

This story meant that the defence solicitors and counsel were obliged, when asked, to tell the court that Mr Amoako was required to attend. If having been required he did not attend the defendant could put forward his story in his absence and have a chance of being acquitted. He was testing the resolve of both Mr Amoako and the prosecution. One presumes that he thought that Mr Amoako may have been reluctant to come back and the prosecution may have been reluctant to pay to bring him back. If Mr Amoako attended to give evidence then this incredible story would not serve very well and another less unlikely story would probably be better. So it makes sense that he would give these instructions so that the solicitors and counsel would be compelled to say the witness was required but it would not suit his purpose to allow a defence statement to be served.

The prosecution eventually served a hearsay notice in relation to Mr Amoako's statement. A judge in the crown court ordered that the hearsay "application" would be decided on the morning of the trial. This was a grave error. The prosecution wanted to know if they had to bring the witness for the trial or not. A ruling at the start of the trial would not help them. That, however, is not the only damage that that order did. It led to all parties making the mistaken assumption that the notice was in some way an application that had to be determined; it was not.

The rules relating to hearsay are commonly misunderstood and misused.

When one turns to the rules, as the court of appeal did in their judgment, one needs to read further than they did.

" Rule 34.2.-(1) This rule applies where a party wants to introduce hearsay evidence.........(2) That party must-...... (a) serve notice on-.........". in effect the other parties and the court. the rule does not require the prosecution to ask for any issue to be determined. This is simply a notice of intention. The other parties then have to respond but only if they object:

"Opposing the introduction of hearsay evidence
34.3.-(1) This rule applies where a party objects to the introduction of hearsay evidence.
(2) That party must-
(a) apply to the court to determine the objection; ........."

" Unopposed hearsay evidence
34.4.-(1) This rule applies where-
(a) a party has served a notice to introduce hearsay evidence under rule 34.2; and
(a) No other party has applied to the court to determine an objection to the introduction of the evidence.
(2) The court will treat the evidence as if it were admissible by agreement."

The notice to introduce hearsay is not an "application" which has to be determined it is merely a notice and anyone objecting to the notice has to serve a notice of objection asking the court to determine the objection. It is the objection which is an application and which the objecting party must apply to determine; not the notice. If no objection is taken, in other words, no notice of objection is served for determination within the rules, then the evidence is taken to be admissible.

The notice of intention to introduce hearsay should not have been listed for determination at the beginning of the trial as though it were also it's own notice of objection. Let us turn to the wasted costs order in the Crown court; for that we need to look at at what happened on the day of the trial.

Mr Amoako was present at court. The prosecution had paid for his flight and had put him up in a hotel. This decision is hard to understand. Why, when in law, the evidence was agreed did they decide to waste public money? The defence served a defence statement in line with their previously received instructions. They indicated that they needed to take further instructions. They eventually told the court they were professionally embarrassed and withdrew. This was predictable, the witness was present and there was no advantage in the story and the client was changing his instructions fundamentally.

The trial started the following day with fresh solicitors and counsel. There was a new defence case statement to the effect that he had not been involved in the burglary and had never entered the house. He had been selling cannabis near the house when a man came up to him and put his hand on him, asking for money for a taxi or to use his phone if he had credit on his phone. There was a struggle as the man tried to take his mobile phone. He pushed him off and ran. He saw the police and ran but was arrested after he had discarded the drugs. The evidence of Mr Amoako was, of course, not challenged. The defendant was convicted and sentenced to 10 years.

The trial judge, His Honou
r Judge Pawlak, caused a letter to be written to the defendant firm about a wasted costs order. The letter was to the effect that they had asked for the witness to attend at a time when they had no instructions as to what the defence would be. They wrote to say that in fact they already had instructions to the same effect as the defence statement served on the morning.

There was eventually a hearing. The judge accepted that there could be no wasted costs order in respect of the defence case statement and it being served so late, if solicitors have given proper advice as to its service but the client refuses, they have not committed any breach of the rules. The breach by the client has a statutory sanction but the judge did not seem to think it was worth very much.

He went on to say that different considerations applied to an application opposing the introduction of hearsay. In his judgement a solicitor must tell a client that he has to comply with that rule even if that will mean revealing the true nature of the defence case. If a client will not allow him to comply with the rules, the solicitor must tell him that they have to part company. The court would allow the solicitor to come off the record. So " if a solicitor fails to comply with his obligation to give reasons as to why a hearsay notice is opposed, one is entitled to assume, where the solicitor continues to act, that it is the failure of the solicitors in not providing any reason. In requiring the witness to attend, the solicitor was acting on his client's instructions and implementing them, but he was not entitled to break the rules in order to do so."

Having looked at the Criminal Procedure Rules, we can see how many errors are contained in that paragraph. There was no application opposing the introduction of hearsay. How could they give reasons for opposing an "application" that they had not in fact opposed! A failure to oppose a notice to adduce hearsay evidence has its own consequences in the rules, (exactly the same as the failure to serve a defence statement) in that the hearsay evidence becomes admissible by agreement. There is no breach! A client is entitled to decide not to oppose a hearsay notice but if he does so he has to take the consequence, which is, that the evidence can be read as agreed. Mr. Amoako was at court because the prosecution decided to call him. he was not there because of anything the defence had done. The prosecution were entitled to read him but chose to call him. The decision not to oppose the hearsay notice was not causative.

The court said, " in withholding their grounds on which the application opposing the crown's hearsay notice was being made, the appellant had failed to act with the competence reasonably to be expected." the idea seems to be, that they had served some sort of "application" but provided no grounds.

Had the appellants served a notice of objection to the notice and asked for their objection to be determined but without any grounds; even then, surely, the objection would have failed for lack of reason or grounds and the court would have decided against them. In which case the witness would still not have had to come. In any event, we know that in not serving a notice of objection they were not objecting and withholding their grounds; they were not objecting at all! We are told specifically, in the judgement that " On the 6th of April2011 the time under CPR34.3(c) for service of a cross-application in objection to the prosecution's hearsay notice expired. No such application was ever served."

If that is right, one is forced to ask, " How were they withholding grounds on which the application opposing the crowns hearsay notice was being made "? When, " No such application was ever served. "

If the reference is to the original statement made by counsel to the judge on the 28th March 2011 at the trial readiness hearing, that, both witnesses were essential to the defence, i.e. Mr Amoako and a police officer, he was answering the judge's question as to whether the witnesses were really needed. Which on his instructions, they were. he was not dealing with the hearsay notice. He could not in law have done so as he is not the litigator, it is only the solicitor who can file an objection. In any event, a response to the hearsay notice, objecting to it and asking for the question to be determined has to be in writing and has to be served on the party giving notice and the court officer, "the party must ask for the question to be determined"! Counsel certainly did not do that!

The judge held that the breach was causative because, had the appellants had made it clear to the defendant that they had to disclose his incredible defence, in their notice of objection this might have resulted in the client himself changing his instructions and the witness not having to attend. This is wild speculation. Even forgetting the rules as they actually are, and just looking at this logic, is it not far more likely the defendant was testing the witness and the prosecution and seeking to take advantage of the possibility that he wouldn't come? The client probably was seeking, as the court of appeal put it, to manipulate the process of the court in putting forward the instructions which required the witness to attend but how were the solicitors complicit in that?

They do not have the luxury of judging the clients story and declaring it incredible. They have to suspend their disbelief and act on their instructions if they don't the rule of law is out of the window, we no longer need judge or jury, the solicitors have to be both. The defendant only changed his story when the witness actually came to court, he was never going to change it merely because his defence was revealed for all to see. Which seems to have been part of the judges reasoning. But even being charitable and taking that out of the equation; his and the court of appeal's reasoning was that they were obliged by the rules to give reasons and they broke the rules by not doing so. Hmmm! Really? This is clearly not right as we have seen!

Is it significant that the judge tried at first by letter to make a wasted costs order for a totally different reason and only changed tack when he saw that they had a good defence to that allegation? He then expressed frustration at defendants never having any money and the statutory remedy being almost useless for not serving a defence statement, before deciding there had been a breach of rules by the solicitors objecting to hearsay without setting out their reasons; when in fact no objection had actually been made. The only thing that caused the witness to come from Australia was the prosecution. The court in ordering the hearsay notice to be decided at the start of the trial may also have been causative.

It now appears (from their reasons for not certifying a question) that the Court of Appeal based its judgement in support of the trial judge on the basis that the firm had instructions not to serve any application objecting to the hearsay notice. If that is correct then it contradicts what the judge said when he suggested that if solicitors continue to act the court is entitled to assume it is their failure (in not giving reasons) and not just the client's, so how could the courtl then have assumed that that the firm had broken the rules?

What no one has criticised is the fact that the appellant firm had a signed defence statement, but, chose to serve unsigned statements on the court and the crown. This may have enabled him to change his story without being confronted by the previous one. Unless of course it was used in any event by the crown or court, even though unsigned, or the court knew there was a signed one. It is difficult to think of legitimate reason for not supplying copies of the signed statement. This actually may have allowed the defendant to keep his options open! That, however, was not what this case was about.