Update on Wasted Costs and Reminder about Giving Notice
We know that some of you have been concerned about the risk of wasted costs in the event that you participate in days of action.
We have sought clarification directly from the CPS as to their approach to the question of wasted costs.
The official response has been as follows:
‘The CPS has confirmed that, as set out in its Legal Guidance on Wasted Costs, applications under section 19 should be made sparingly and only where the lapse in standards cannot be excused. In the event that a CPS prosecutor or prosecuting advocate considers that the high threshold for a wasted costs application has been reached, approval to apply must first be secured from the Chief Crown Prosecutor. Prosecutors have been advised to familiarise themselves with the Legal Guidance and relevant Law in order that they can assist the Court, if required to do so. This may include advising the Court of the rationale for not applying for wasted costs’.
The above clarification should provide additional reassurance to members.
You are reminded to have regard to paragraph 20 of the CBA ‘Days of Action Guidance’ which states:
“20. Your guiding principle at all times should be to give notice and seek to minimise harm, to any affected person, in order to mitigate the risk of regulatory proceedings in the event that a complaint is made against you.”
‘Affected person’, includes witnesses and complainants.
Your attention is also drawn to paragraph 9 of the CBA guidance, ‘Barristers facing a referral to the BSB’ which states:
“9. In addition, barristers should have informed all parties of their intention to take action (solicitors, co-counsel and prosecution) and the court in order to minimize the impact on the administration of justice insofar as this would comply with taking reasonable steps to manage your practice in accordance with Core Duty number 10.”
Please continue to adhere to a harm reduction approach, by giving notification, including notification to the Crown, of your intention to participate in a day of action, to minimize both your exposure to wasted costs applications, and the risk of a BSB referral.
The easiest way to give notification to the Crown is to ensure that when you submit your letter to the Court, it is also copied to prosecuting counsel/ the CPS.
Giving notification to the prosecution, particularly in relation to trials where witnesses are warned, is important in order to mitigate harm and prevent wasted preparation.
Using the DCS widely shared comments section, in addition to submitting your letter to the court in advance, also ensures that if the case remains listed, the Judge on the day is aware that you are not attending, and why. If you are making an application to adjourn, remember to provide your future available dates in the letter/ comments section.
A reminder that the link to the relevant documents (days of action guidance, BSB referral guidance, wasted costs guidance and draft letters) is available here.
Lucie Wibberley Mark Watson
Secretary Assistant Secretary