DEFENDANT’S COST ORDER (DCO)
Costs Orders – how we can (sometimes) get your legal fees reimbursed
“You get what you pay for” is a common phrase our clients tend to recite as they agree to invest in the legal fees required to instruct the Geoffrey Miller Team. However, when we win our cases we are also usually able to recover a contribution towards the legal bill back from the Court or the Prosecution. How much we can recover depends on whether the type of costs order made.
What is a Defendant’s Cost Order?
A Defendant’s Cost Order (DCO) can be granted by the Court if a defendant is successful in defending any criminal allegation brought by the Police or Crown Prosecution Service and they have paid privately for their representation.
The recoverable amounts are capped at legal aid rates and are paid from Central Funds. If a defendant faces numerous charges and is convicted of some but not all allegations, the Court can still award costs in relation to the offences not proved.
Any defendant who has had to contribute to any legal aid funded representation can recoup a proportion of the costs they have contributed to, in the same manner as those who pay privately.
The Costs Criminal Practice Direction (paragraph 2.2.1) provides that where a defendant is successful:
‘A defendant’s costs order should normally be made unless there are positive reasons for not doing so, for example, where the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was.’The Costs Criminal Practice Direction (paragraph 2.2.1)
The order will be granted by the Court and is usually sent to the defence representatives. The National Taxing Team (NTT) will assess the bill, which encompasses all the work undertaken in the preparation of the case, and decides on the final figure to be awarded. If the bill of costs has been reduced unjustly, the defence representatives can make representations within 14 days of receiving the bill to challenge any knockbacks. Following a review of the representations, the NTT team will either award additional costs or reject the representations.
We regularly obtain Defence Costs Orders for our clients when we successfully defend the allegations they face.
Rules on recovery for appeals against sentence and conviction
Cost recovery is possible following a successful appeal. However, the costs awarded by the NTT are capped in accordance with The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012).
An appeal on sentence to the Crown Court from the Magistrates Court is capped at £170.21 whereas an appeal against conviction to the Crown Court is capped at £383.98 for any work undertaken. Advocates’ fees to attend hearings are also capped with no travel expenses payable but the amount depends on the purpose of the hearing and whether the duration was over one day.
If an appeal against a conviction is successful, the costs order will usually cover the costs of the appeal (capped as above) but the costs at the lower court will also be recoverable on a work done basis albeit at legal aid rates.
Costs recovery for either way offences (if heard in the Crown Court)
The rules are different for more serious offences known as “either way” offences when the case is heard in the Crown Court. The most common either way offence we encounter as motoring law specialists is dangerous driving.
If the case is won or discontinued, a Defence Costs Order can be granted in the Crown Court but ONLY IF an application for legal aid has been made AND refused. A privately funded client is able to reclaim costs by way of a DCO if acquitted but must have applied for and been refused legal aid before doing so. In this scenario, any costs recovery will be capped at legal aid rates.
If a defendant is eligible for legal aid but chooses to fund their defence privately without making an application for legal aid, they will be unable to recover their legal costs on acquittal.
Costs recovery for companies
Only individuals (as opposed to companies and other organisations) can recover these limited defence costs in the Crown Court and Magistrates’ Court.
No Order Due to bringing the prosecution upon yourself?
There are specific circumstances when a court can refuse to order a defence costs order. When a Defendant has brought a prosecution upon himself by, for example, making a false confession, the court can refuse to make an order for any costs to be paid. However, this issue was misunderstood in one of our cases that we appealed to the High Court. The case of Mr Spiteri was won on a technical argument on appeal and the appeal judge refused to award a costs order. The reasons were explained as follows:
A letter from the court set out the following comments of the judge who presided over the appeal:
“This is a case where the Defendant was acquitted on a technicality. We were satisfied that although the procedure of Form Mg DD/A (ie taking of a specimen at the police station) was carried out, question D14 [i.e. A14] was not asked. (This was due to aninterruption at the point the question was reached). The prosecution accepted and referred us to authorities which made it clear that the absence of the question was fatal to the rest of the procedure.
Accordingly, we acquitted the Defendant on an important, but unmeritorious technicality. We were, however, satisfied that he had been driving whilst substantially over the legal limit, indeed the defence expert witness suggested that the specimen taken at the police station indicated he had been drinking shortly before his arrest. The whole case hinged on the absence of the one question during the procedure at the police station.
In the circumstances, we felt that the defendant had amply brought the Prosecution upon himself. He was well over the limit whilst driving. Accordingly, we exercised our discretion in those circumstances not to order costs from central funds.”The Court
We challenged this decision with an appeal to the High Court where the decision to refuse a costs order was overturned. Lord Justice Richards concluded:
“I am satisfied that in this case the Crown Court did err in law in giving the reason it did for refusing to award the claimant his costs and that no good reason has been identified for the refusal of such an award. What I have said also provides the reasons for my conclusion that the Crown Court was wrong to refuse to state a case.I would therefore allow the application for judicial review in the form I have indicated. I would quash the Crown Court’s decision to refuse a defendant’s costs order.”Lord Justice Richards
What is a Wasted Cost Order?
A wasted cost application can be submitted by the defence in cases where the Crown Prosecution Service have caused the defendant to incur additional costs due to “an unnecessary or improper act or omission” made by them. The application is submitted to the Court with the Crown submitting their own response to the application. The Court will determine whether an order is granted or not, having heard arguments from all parties concerned. The amount to be ordered is also determined by the Court. The order can be for the full amount claimed, a reduced amount or it can also be refused.
The Law
The scope to make an application for wasted costs is set out under the provisions of s.19 (1) of the Prosecution of Offences Act 1985 which state:
The Lord Chancellor may by regulations make provision empowering magistrates’ courts, the Crown Court and the Court of Appeal, in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs.
It is further set out in the Criminal Procedure Rule 45.8 which entitles “Costs resulting from unnecessary or improper act”. Under CPR 45.8, Part 4 A – C, it states that the rule applies where the court orders a party to pay another party’s costs incurred as a result of an unnecessary or improper act or omission by or on behalf of the first party.
An example of a successful application
Our client had their case listed for trial months prior to the trial hearing date. On the day of trial, the defence attended fully prepared for the hearing to proceed. However, the Crown had not fully instructed their attending advocate nor had they provided them with the necessary documentation. Therefore, they were unable to continue to trial. The Crown’s advocate made an application to vacate the trial date, which was granted by the Court. However, a wasted costs application was put forward by our advocate and it was granted at the following hearing.
We submitted that had the Crown fully prepared their case, our client could have continued and would not have incurred additional costs as a result of their negligence. The Judge agreed with the Defence submissions that there had been an “unnecessary or improper act or omission” on behalf of the Crown.
There are other instances when a wasted costs application may be applicable, and these include, but not limited to:
- Failing to warn a witness to attend trial and the trial is adjourned as a result.
- Failing to serve evidence prior to trial and the trial is adjourned as a result
- It was “improper” or “unnecessary” to bring proceedings against the defendant
A word of caution
The bar is set at a high level to be awarded wasted costs and it could involve costs to make the application depending on the circumstances so even if you or your case handler is feeling aggrieved following a wasted hearing, we usually recommend that all parties “sleep on it” before firing off an application.
Claiming costs from the Court
The court has immunity from any type of wasted costs application.
The only recourse would be to seek ex-gratia costs against HMCTS, this is something you can pursue yourself and would be on an indemnity basis, not capped at legal aid rates. The complaints procedure can be found here.
Ground for ex-gratia costs
The only ground is maladministration which means when government actions or inactions result in a customer experiencing a service which does not match the aims or commitments.
Failing to communicate etc, falls upon HMCTS as a government department (the ex gratia team) and they should consider whether the customer has suffered actual financial loss or non-financial loss that is sufficiently compelling to warrant financial redress where maladministration has been identified by the department an ex-gratia payment will be considered.
Generally, each decision must be made on the facts as they exist at the date of the decision.
If the claim is rejected
A decision may be revised when fresh facts become known or where, for example, an impartial review concludes that a different conclusion can be reached from the same set of facts.
However, as special payments are not covered by statute, there is no right of appeal against a refusal to make a special payment.
Proving maladministration
- Examples of maladministration: wrong advice, discourtesy, mistakes and delays.
- documentary or incontrovertible proof is not an essential requirement for the authorisation of an ex-gratia payment
- where there is no sufficient evidence to prove a claim, a decision will be made on the balance of probabilities
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