DLA Piper UK LLP (Claimant) v BDO LLP (Defendant)  EWHC 3970 (Admin)
Where a judge erroneously exercised the Crown Court's inherent jurisdiction to make a costs order, the Court hearing an appeal of that order by way of Case Stated could reconstitute itself as the Divisional Court, judicially review the order and quash it.
13 December 2013
Administrative Court, Queen's Bench Division
Moses LJ, Foskett J
(i) This was an appeal by way of Case Stated of a costs order against the appellant. The costs order was made in favour of the respondents, who had successfully resisted a witness summons, by exercise of the Crown Court's inherent jurisdiction.
(ii) Moses LJ (with whom Foskett J agreed) held: (1) The judge had no power to use her inherent jurisdiction to make a costs order in these circumstances. It is true that there is a lacuna in the Criminal Procedure (Attendance of Witnesses) Act 1965, in that a costs order may be made in the case of a successful application to set aside a summons but not where a summons is successfully resisted. However, the Crown Court's inherent jurisdiction to order that a solicitor personally pay costs thrown away could not be exercised here, since the appellant was not the applicant for the witness summons. The applicant for the witness summons was the appellant's client, the defendant in the original proceedings. (2) The appellants could not challenge this costs order by way of Case Stated under section 28(1) of the Senior Courts Act 1981, since they were not a party to the proceedings. (3) However, the appellants could challenge the judge's order by way of judicial review. Judicial review was not excluded by section 29(3) of the 1981 Act. The order for costs in this case could properly said not to relate to the trial on indictment, as the costs were made against a third party. In the circumstances, the costs order did not affect the conduct of a trial, was not an integral part of the trial process and did not arise in an issue between the Crown and the defendant formulated by the indictment. (4) This Court should reconstitute itself as a Divisional Court and agree to consider whether judicially to review the decision. Justice in this case could not be done unless permission for judicial review is granted and the order quashed. Although any application for judicial review would be well out of time, the Court should not decline to review the order merely because the appellants mistakenly took the wrong course of action. The respondents should not retain the advantage of a costs order which was so plainly erroneous. (5) It would be wholly out of proportion to remit the matter to the judge to consider making a Wasted Costs Order under section 19A of the Prosecution of Offenders Act 1985. It is undesirable to take up the time of the courts with an unnecessary Wasted Costs Order save in the clearest cases.
Court reconstituted as the Divisional Court; application for permission to move by way of judicial review granted; costs order judicially reviewed and quashed.
 -  - Introduction
 -  - Factual background and legal framework
 -  - Appeal or judicial review
 -  - Conclusion
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