Where a defendant had successfully appealed conviction for contempt of court the Court of Appeal did not have the power to make an order for costs from central funds.Review of an earlier decision by the Court of Appeal to order the defendants' costs to be paid from central funds. On 13 November 1999 at Maidstone Crown Court the defendant ('M') was convicted of contempt of court. No penalty was ordered. M successfully appealed the conviction on 12 December 2000 under s.13(2)(bb) Administration of Justice Act 1960 and at the conclusion of the appeal Rose LJ awarded M's costs to be paid from central funds. Subsequently, solicitors acting on behalf of M received a letter from the Registrar refusing payment as the court had no power to make such an order. The matter was remitted to the Court of Appeal to review its earlier decision. It was accepted, by both parties, that the court had the power to review its earlier decision in light of the decisions in Cope v United Dairies (1963) 2 QB 33 and Taylor v Lawrence (2002) 3 WLR 640. The power was only exercisable in exceptional circumstances, however, making an order to the detriment of public funds, when the public were not represented at the hearing, was capable of constituting exceptional circumstances. M contended that: (i) jurisdiction to award costs out of central funds was conferred on the court by s.13(3) of the 1960 Act which provided that a court "may make such other order as may be just"; (ii) an award of costs to a successful appellant fell within s.13(3) of the 1960 Act and Holden v CPS (No.2) (1993) 1 All ER 769 could be distinguished; (iii) having succeeded on his appeal he would unjustly be left out of pocket if the words of s.13(3) of the 1960 Act were not construed so as to enable the court to make the order (see R v Preston Crown Court, ex parte Lancashire County Council (1999) 1 WLR 142 and R v Antoine (2001) 1 AC 340); and (iv) a defendant able to pay for legal representation would, if he successfully appealed and was not entitled to an order for his costs, be deprived of his rights under Art.6 European Convention on Human Rights. Jeremy Morgan QC, instructed as friend of the court, contended that in light of Holden v CPS (supra) s.13(3) of the 1960 Act could not be construed as giving courts power to award costs out of central funds. In R (Lancashire CC) v Preston Crown Court (supra) and R v Antoine (supra) Holden v CPS was not cited and neither case was concerned with implying into a statute a power to award costs out of central funds. Mr Morgan QC accepted that there were circumstances where Art.6 rights could be engaged in relation to the making or non-making of costs orders, for example where refusal of an order for costs cast doubt on innocence or, where an order for costs was not available deprived the person concerned of an effective right to a fair hearing. However, neither of those situations was applicable in the present case and M's Convention rights were not engaged.HELD: (1) In light of the decision in Holden v CPS (supra) s.13(3) of the 1960 Act could not be construed as conferring a power to order costs out of central funds. Holden v CPS were four successful conjoined appeals against wasted costs orders made against solicitors in criminal proceedings. The solicitors sought costs out of central funds and contended that s.51 Supreme Court Act 1981 conferred jurisdiction to make such an order. The application failed and Lord Bridge held that circumstances where such an order could be made had been "precisely and specifically defined" and the jurisdiction to order costs out of central funds "could not be conferred by anything less than clear express terms". (2) Article 6 was not engaged by the court's construction of s.13(3) of the 1960 Act.Insofar as this was an appeal it was dismissed.

[2003] EWCA Crim 1574

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