A judge has quashed a wasted costs order made against a barrister caught up in the criminal bar's 'no returns' action who failed to attend a hearing. 

Under the protest measure adopted by the Criminal Bar Association (CBA), barristers agreed not to accept cases returned by colleagues with a diary clash. The policy was designed to demonstrate to the government the impact on the wider criminal justice system is barristers withdraw their 'goodwill'.

It ran from 7 March until 27 March, when the deal to postpone 6% cuts to graduated fees was agreed with the Ministry of Justice.

On the final day the policy was in effect, a judge at Norwich Crown Court issued a wasted costs order against a barrister, referred to as 'D' because a contempt of court order prevents publication of her name. 

The recorder of Norwich, His Honour Judge Holt, ruled yesterday that D had 'acted entirely professionally' and quashed the order. Simon Spence QC of Red Lion Chambers represented the barrister concerned pro bono.

D had been representing a defendant charged with defrauding an elderly person by undertaking repairs that were not required and charging huge amounts of money for the work.

The matter came before His Honour Judge Bate in January and the matter was listed for trial last week.

According to a transcript of the judgment prepared on behalf of the Criminal Bar Association, D asked for the trial to be relisted as she would be unable to attend.

The transcript says the matter was relisted without witnesses before deputy circuit judge Jacobs, 'who purported' to make a wasted costs order against D.

Holt said: 'He [Bate] did not specify an amount and counsel had no opportunity to put before the court her position.'

According to the CBA's transcript, in passing judgment the recorder of Norwich said: 'The judiciary have to be entirely independent and cannot take sides between the bar and any dispute with remuneration it might have with the government. 

'Wasted costs orders have huge implications for a barrister's career, potential for sitting as recorder, or taking silk, therefore it is essential before making such an order that full facts be ascertained and judged.'

He said: 'Having had regard to the documents there is no way a wasted costs order would be appropriate or anywhere near to being appropriate. Counsel and her instructing solicitors acted entirely professionally and in those circumstances I rule that no wasted costs should be made in this case.'

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