John Cooper questions the application of personal costs orders

John Cooper

We are moving into the era, of the personal or wasted costs order. For some time, solicitors have, in certain cases, been directed by the judge to pay the costs of a case or an adjournment out of their own pockets.

Most recently, this ultimate sanction has been applied to the Bar and barristers throughout the country are now at personal risk should a judge feel that they are personally responsible for loss incurred at trial.

The Bar Council has observed that often trial judges do not exercise their discretion on personal costs orders in accordance with proper guidelines and has, in the last few weeks, indicated that any barrister subjected to such an order should contact the council to ascertain if the judge has acted properly.

But as many practitioners will know, wastage of court time and money can be caused by other agencies who are not liable to personal costs orders.

Starting at the top – the judges. Most of the judiciary, like most barristers and solicitors, conduct themselves properly and efficiently with an eye on the public purse.

But we can all call to mind examples, some of them recent, where judges have been criticised for wasting public money. There are judges who have discontinued cases for reasons that may not bear close scrutiny.

Surely if costs are wasted by judicial error judges should be just as liable to a personal or wasted costs order as any officer at the court.

What about the prison service which fails to deliver a prisoner to court or the listing office which does not properly list a case causing adjournments?

Why should the probation service be excluded if reports, properly requested, do not turn up or are inadequate for some inexcusable reason. What about the police who fail to inform the Crown Prosecution Service that an officer is on leave and cannot give evidence, causing the case to be delayed?

It may not be so reasonable to demand a personal costs order, but what about a corporate one?

I am sure that all the agencies mentioned above will rarely be in a position where they would have to justify themselves.

But the point is in the present climate of public accountability and personal culpability, barristers and solicitors should not be standing alone in the teeth of personal costs orders.

John Cooper is a barrister with 7 Stone Buildings.