. 23
( 34)


ing testimony by giving the defendant the bene¬t of the doubt.

16. Trial on indictment without a jury
Hitherto in England and Wales trial on indictment has meant trial by jury. The
Criminal Justice Bill 2002“3 Part 7 provided for trial on indictment by a judge
without a jury in three situations: (1) on application by the defendant (clause
41); (2) on the ground of the complexity or length of the case (clause 42) and
(3) where there was a danger of jury tampering (clause 43).
The House of Lords Committee stage debate on these provisions took place
on 15 July 2003. Twenty peers spoke. Apart from the Minister, Baroness
Scotland QC, only two of the twenty supported the Government. There were
seventeen speeches denouncing the provisions as an unacceptable incursion on
the sanctity of trial by jury. After a debate of three and a half hours, the Lords
rejected all three clauses by the overwhelming majority of 210 to 136.242 (The
vote was taken on clause 41 but the debate grouped all the Part 7 provisions
together so that defeat for clause 41 meant defeat for them all.)
The Government immediately announced that it would restore the Part 7 pro-
visions when the Bill returned to the Commons. In the event, the defendant™s

Jury Trials, 1979, p. 118.
J. Baldwin and M. McConville, ˜Allegations Against Lawyers™, Criminal Law Review, 1978,
pp. 744“5. House of Lords, Hansard, vol. 651, 15 July 2003, cols. 768“814.
541 Trial on indictment without a jury

right to opt for trial by judge alone was quietly dropped but the other two pro-
visions were retained and were eventually included in the Act as ss. 43 and 44
respectively. (See further p. 546 below.)
The Domestic Violence, Crime and Victims Act 2004, ss. 17“20 has novel
provisions for trial without jury for some o¬ences when other similar o¬ences
can be tried with a jury. An application would be made by the prosecution.
There are three pre-conditions: (1) the case must have so many counts that trial
by jury of all of them would be impracticable; (2) trial by jury is possible of
counts that can be regarded as sample counts; and (3) it is in the interests of
justice (s. 17).
At the time of writing only s. 44 (jury tampering) had been brought into
This section on trial on indictment without a jury begins with consideration
of the ˜Diplock courts™ in Northern Ireland.

˜Diplock courts™ in Northern Ireland
A survey of all cases tried in the ¬rst six months of 1973 in Belfast showed an
acquittal rate of 16 per cent for Protestant defendants as against 6 per cent for
Catholics. A Committee headed by Lord Diplock was sent to inquire into the
problem of jury verdicts in terrorism cases. The Committee™s Report identi¬ed
various problems including intimidation of witnesses by terrorists and the
danger of perverse acquittals of Loyalist terrorists by predominantly Protestant
juries. The Committee recommended the suspension of jury trial for certain
o¬ences.243 The recommendation was implemented in the Northern Ireland
(Emergency Provisions) Act 1973 in relation to ˜scheduled o¬ences™, broadly
those regularly committed by terrorists “ murder, other serious o¬ences
against the person, ¬rearms and explosives charges, arson, robbery, aggravated
burglary and intimidation.
The system of trial in Diplock courts was basically left intact subject to certain
signi¬cant innovations: a decision to convict requires a reasoned judgment (and
reasoned judgments are normally also given for acquittals), there is an auto-
matic right of appeal against conviction, sentence or both and if the judge rules
that a confession is inadmissible, he can withdraw and direct that the trial be
conducted by a di¬erent judge. There were also changes made in the rules gov-
erning the admissibility of confessions.
A major study of the system published in 1995 stated that from 1973 to then,
well over 10,000 defendants had passed through Diplock courts. ˜The average
annual ¬gure decreased from over 1,000 in the early years to a level of over 400
in each year from 1991 to 1993™.244
Report of the Commission to Consider Legal Procedures to Deal with Terrorist Activities in
Northern Ireland, 1972, Cmnd. 5185.
J. Jackson and S. Doran, Judge without Jury: Diplock Trials in the Adversary System (Clarendon
Press, 1995) p. 19. On the Diplock courts see also K. Boyle, T. Hadden and P. Hillyard, Law
542 The jury

The study by Jackson and Doran showed that although the acquittal rate in
Diplock courts for each of the ten years from 1984 to 1993 ran below that in
ordinary jury trials, in seven of those ten years it was over 40 per cent and in
four of the ten years it was over 50 per cent.245 The guilty plea rate in Diplock
court cases was not signi¬cantly di¬erent from the rate in ordinary trials. In
both Diplock courts and ordinary Northern Ireland trials the guilty plea rate
was considerably higher than in jury cases in England and Wales. In Northern
Ireland between 1984 and 1993 it was over 80 per cent in seven out of ten years
in Diplock courts and in six out of ten years in ordinary trials.246
The authors of the study found that although in Diplock courts the judges
had more possibility for involving themselves in the fact-¬nding process than
in jury trials, they generally did not do so. (˜There was, however, no clear evi-
dence from our survey that judges necessarily acted in a more inquisitorial
manner when sitting in the absence of the jury. The general, though not uni-
versal, view expressed by the judges who spoke to us was that it was inappro-
priate to deviate from the umpireal role required in adversarial proceedings™.247)
In 1987 the Government decided to abolish the right of trial by jury in
civil actions in Northern Ireland where previously jury trials were used in the
overwhelming majority of such cases.248
In August 2006 it was announced that as part of the process of ˜normalisation™,
it was intended that Diplock courts should be abolished before summer 2007,
but judge-only trials would be retained for exceptional cases. The DPP was to
have the power to certify judge-only trial on the basis that in his view there was
a risk of jury intimidation or interference with the administration of justice.249

Defendant allowed to opt for trial by judge alone
The Runciman Royal Commission did not mention ˜jury waiver™, namely per-
mitting defendants to opt for trial by judge alone. This is widely used in the
United States250 and to some extent in Canada,251 New Zealand252 and Australia.
Lord Justice Auld proposed that, subject to the consent of the court, the defen-
dant be given the choice in all trials on indictment. The judge should decide
after hearing representations from both sides. He did not favour making the

Footnote 244 (cont.)
and State (Martin Robertson, 1975) and by the same authors, Ten Years on, Northern Ireland
(Cobden Trust, 1980); J. Jackson, ˜Diplock and the Presumption against Jury Trial: a Critique™,
245 246
Criminal Law Review, 1992, p. 755. Table 2.2, p. 35. Ibid, Table 2.3, p. 41.
247 248
Ibid, p. 288. Jury Amendment (Northern Ireland) Order 1987, SI 1987/1283.
Replacement Arrangements for the Diplock Court System (Northern Ireland O¬ce consultation
paper, 11 August 2006) “ www.nio.gov.uk.
According to the Auld report (Ch. 5, para. 111, p. 178) in 1993 some 14 per cent of all serious
federal cases were tried by judge alone.
It has applied to all indictable o¬ences since 1985 “ Canadian Criminal Code, RSC C-46,
ss. 473 and 476.
O¬ences carrying a maximum of fourteen years™ imprisonment or a mandatory life term are
excluded “ Crimes Act 1961, ss. 361 A“C and 361B(5).
543 Trial on indictment without a jury

defendant™s option subject to the consent of the prosecution as was the case in
most jurisdictions in the United States.
In his view, trial by judge alone had a potential for providing ˜a simpler, more
e¬cient, fairer and more open form of procedure than is now available in many
jury trials, with the added advantage of a fully reasoned judgment™.253
To avoid ˜judge shopping™, the defendant should be required to opt for trial
at an early stage. Where the defendant had co-defendants who did not want trial
by judge alone the best solution was that adopted in New Zealand where the
judge would order that either all or none be tried by judge alone.254
The Government accepted the recommendation that the defendant be per-
mitted to opt for trial by judge alone255 and included it in the Criminal Justice
Bill 2002“3. As has been seen, however, clause 41 was defeated in the Lords and
was not re-introduced.

Non-jury courts for fraud and other complex trials
There have for many years been a variety of voices raised to urge that long,
complex fraud cases should be tried by some form of special tribunal. The cam-
paign for such reform had been going on since the late 1960s when it was pro-
moted in particular by the then Lord Chief Justice, Lord Parker. In 1983 the idea
was put forward separately by the Chairman of the Law Commission, by the
Lord Chief Justice, Lord Lane, by a Law Lord, Lord Roskill, and by Lord
Hailsham, the Lord Chancellor, in the Hamlyn Lectures. In November of that
year the Government set up the Roskill Committee ˜to consider in what ways
the conduct of criminal proceedings arising from fraud can be improved, and
to consider what changes in existing law and procedure would be desirable to
secure the just, expeditious and economical disposal of such proceedings™.
The Roskill Committee concluded that long fraud cases were so complex that
it was not reasonable to expect jurors to be able to cope. There were often mul-
tiple defendants and many charges. ˜The background against which frauds are
alleged to have been committed “ the sophisticated world of high ¬nance and
international trading “ is probably a mystery to most or all of the jurors, its
customs and practices a closed book™.256 The language of accountancy would be
unfamiliar. The evidence often ran into hundreds or even thousands of docu-
ments. Research conducted for the Committee by the Medical Research
Council™s Applied Psychology Unit at Cambridge on understanding by jurors of
a one-hour summing up in a fraud case con¬rmed the ˜view of experienced
observers and the promptings of common sense, that the most complex of
fraud cases will exceed the limits of comprehension of members of a jury™.257
Many jurors were simply out of their depth in such cases.

253 254
Auld, Ch. 5, para. 117, p. 180. Ibid, para. 118, pp. 180“1.
255 256
White Paper, Justice for All, Cm. 5563, July 2001, para. 4.27. Roskill, para. 8.27.
Ibid, para. 8.34.
544 The jury

There was one dissentient, Mr Walter Merricks. In a powerful statement he
e¬ectively demolished the Committee™s reasoning. First, he pointed to the
weight of expert evidence received by the Committee which was ˜overwhelm-
ingly in favour of retaining the jury™.258 The Committee thought there were
cases that were not prosecuted because of the di¬culty of presenting very
complex cases to the jury, but analysis by the DPP of all his fraud cases in 1983
showed that there was only one out of seventy-one not prosecuted in which the
decision not to prosecute was caused by the complexity of the evidence.
Mr Merricks suggested that it had become a convention of the unwritten con-
stitution that citizens should not be subjected to more than a short period of
imprisonment otherwise than on a jury™s verdict. Parliament should not be
invited to abrogate this constitutional right without evidence that jury trial had
broken down in serious fraud cases and that all possible procedural improve-
ments had been considered and found inadequate. There was a danger that if a
special expert tribunal were set up, the trial would become simply an exchange
between lawyers and the tribunal in impenetrable jargon. The function of a trial
as a publicly comprehensible exposition of the case would be threatened.
Moreover, the fundamental issue in most fraud trials was one of dishonesty. It
would be dangerous to entrust this judgment to experts. The legal standard of
dishonesty was the standard of the ordinary man and experts were not ordinary
men. It would also be di¬cult to de¬ne the cases in which the special tribunal
would be appropriate.
Mr Merricks™ dissent attracted much notice and support in comments on the
Roskill Committee Report. He had clearly had the better of the argument. The
Government gave the report generally a warm welcome but its proposal on this
particular issue was too controversial and, after hesitating for a period, the
Government announced that it would not be implemented.
In 1993 the Runciman Royal Commission said that in the absence of research
into juries it had no basis for making any recommendations for dispensing with
juries in long fraud cases.259
In February 1998, a year into the life of the Blair Government, the Home
O¬ce published a consultation paper (Juries in Serious Fraud Trials) which
invited views on whether the system should be altered and, if so, how. It referred
to the Court of Appeal™s decision in the Blue Arrow trial quashing the convic-
tion on the ground that the case had become unmanageable and said that there
was a signi¬cant risk of a miscarriage of justice resulting from the volume and
complexity of the issues presented to the jury. The consultation paper canvassed
a number of possible options: special juries, a judge sitting on his own, a special
tribunal and a judge sitting with a jury.
Views were asked for by June 1998 but in fact nothing further happened with
regard to this issue before Lord Justice Auld was appointed in December 1999
to undertake his review of the criminal courts.

258 259
Ibid, p. 192, para. C5. Runciman, p. 136, para. 76.
545 Trial on indictment without a jury

Lord Justice Auld™s report
Auld recommended that in serious and complex fraud cases the trial judge should
be empowered to order trial by himself sitting with lay members (or, where the
defendant opted for trial by judge alone, by himself alone). Either party should
have a right of appeal against the judge™s decision to the Court of Appeal.
Of the various arguments, Auld said that the two that weighed most heavily
with him were ˜the burdensome length and increasing speciality and complex-
ity of these cases, with which jurors, largely or wholly strangers to the subject
matter, are expected to cope™. The average length of cases prosecuted by the
Serious Fraud O¬ce was six months. (˜The fact is that many fraud and other
cases . . . now demand much more of the traditional English jury than it is
equipped to provide™.260)
Auld rejected having special juries made up of persons with special quali¬-
cations. It would be too di¬cult to compose lists of persons with the requisite
quali¬cations and it would be unreasonable to expect them to serve for such
long cases. He said that there had been little support for the idea of trial in such
cases by a panel of judges. He agreed with those who argued that this would
unduly strain valuable and limited judicial resources. He said that he had
wavered as to whether trial in such cases should be by judge alone or by judge
sitting with lay members. In the end he considered that the defendant should be
entitled to express a preference, with the decision left to the judge. If he decided
that trial should be with lay members, he should, after hearing representations,
determine from which (if any) speciality(ies) they should be drawn. The Lord
Chancellor, after consulting professional bodies, could establish and maintain a
panel of suitable persons.261 In the ¬rst instance the new system might be
restricted to cases prosecuted by the Serious Fraud O¬ce.

The White Paper
In its White Paper Justice for All262 the Government said that that there were a
small number of serious and complex fraud trials that placed a huge strain on
all concerned and where the time commitment was a burden on jurors™ personal
and working lives. As a result it was not always possible to ¬nd a representative
panel of jurors. The Government had concluded there should be a more
e¬ective form of trial in such cases. It rejected Auld™s view that trial in such cases
might be by judge with lay members. It recognised that the expertise of such
persons could help the trial proceed. ˜However, identifying and recruiting suit-
able people raises considerable di¬culties, not least because this would repre-
sent a substantial commitment over a long period™. It therefore proposed that
such cases should be tried by judge alone. It did not expect there to be more than
¬fteen to twenty such trials a year.263 It asked for views as to whether trial by
judge alone should be extended to other long and complex cases.

260 261
Auld, Ch. 5, para. 183, p. 204. Auld, Ch. 5, pp. 205“9 and 213.
262 263
Cm. 5563, July 2001, para. 4.28. Ibid, para. 4.30.
546 The jury

The Criminal Justice Act 2003
In the event, the Government decided to extend trial by judge alone to a much
wider category of cases. Clause 42 of the Criminal Justice Bill 2002“3 provided
for the prosecution to apply for a trial on indictment in the Crown Court to
be conducted by judge alone on grounds of length or complexity. Such an
application would have to satisfy two tests.
The ¬rst concerned the likely impact of the trial on the jurors. The length or
complexity of the trial had to be such that it was likely to be so burdensome on
the jury as to make it necessary in the interests of justice to conduct the trial
without a jury (subsection (4)(a)) or that the trial would be likely to place
an excessive burden on the life of a typical juror (subsection (4)(b)). The
Explanatory Notes accompanying the Bill said that in deciding whether the
burden on a typical juror would be excessive, the judge would need to take
account of factors such as the impact of the trial on his or her working and
private life and the physical and mental demands it would make.264
The second condition that had to be satis¬ed related to the sort of issues and
evidence that the jury would have to consider “ that the complexity or length
(or both) would be attributable to the need to address arrangements, transac-
tions or records of a ¬nancial or commercial nature or that related to property
(subsection (5)(a)) and to the likely nature or volume of the evidence (subsec-
tion (5)(b)).
The Explanatory Notes accompanying the Bill (para. 228) said that in making
his decision the judge might be expected to have regard to factors such as
the seriousness of the o¬ence charged and the seniority of the defendant™s posi-
tion “ though all relevant factors would have to be taken into account.
After the clause was defeated in the Lords (p. 000 above) it was re-introduced
by the Government. However, in order to get it through, the Home Secretary, Mr
David Blunkett, was forced to give an undertaking that it would not be imple-
mented until there had been further consultation about the best way of dealing
with the problem and that con¬rmation would require an a¬rmative resolution
in both Houses of Parliament.265 Consultation took the form of a half-day seminar
as to the various options convened by the Attorney General, Lord Goldsmith,
attended by some ¬fty persons representing the various interest groups.266
In June 2005 the Attorney General announced that the Government would
be pressing ahead with implementation of s. 43.267 It hoped that the provision
would be brought into force from 1 January 2006. A debate on an Order to
achieve this was scheduled for 29 November in the Lords but in the face of the
prospect of defeat the Attorney General withdrew the Order “ though he said
he was still committed to trial without juries for a small number of very di¬cult
cases.268 However, in March 2006 he ¬nally conceded that the provision would

264 265
Paragraph 231. House of Commons, Hansard, 20 November 2003, cols. 1027“8.
266 267
The writer was one of those who attended. The Guardian, 22 June 2005.
The Guardian, 26 November 2005; New Law Journal, 2 December 2005, p. 1835.
547 Trial on indictment without a jury

not be implemented. On the Report stage of the Fraud Bill Lord Goldsmith
stated that the attempt to ¬nd an acceptable compromise having failed, the
Government had decided not to proceed with s. 43. Instead “ when parliamen-
tary time allowed “ it would instead bring forward a new Bill dealing with the
matter.269 The Fraud (Trials Without a Jury) Bill was introduced on 16
November 2006. The Bill activates s. 43 of the Criminal Justice Act 2003 subject
to one change “ that the initial application for a non-jury trial and the trial itself
must both be heard by a High Court judge.270
Until now whether the jury can understand the evidence in long fraud trials
has never been investigated in the context of an actual case, but in 2006 the ques-
tion was put to the test in the inquiry after the collapse of R v. Rayment, known
as the Jubilee Line Case. The case began on 25 June 2003. On 22 March 2005,
almost two years later, it was terminated after the prosecution announced its
decision not to oppose a defence application to discharge the jury. The prose-
cution accepted that, as a matter of law, no jury could be expected to remember
and assess evidence that had been given a year or even eighteen months earlier.
Costs of some £25 million had been wasted and in view of the public disquiet,
the Attorney General asked the Chief Inspector of the CPS to inquire into the
reasons for this expensive ¬asco.
The Chief Inspector™s report totally exonerated the jury from any blame. (˜No
responsibility for the inconclusive outcome of the case can properly be attrib-
uted to the capabilities or conduct of the jury™.271)
In his report the Chief Inspector stated that eleven of the twelve members of
the jury had been interviewed by the review team. They had been furious when
they discovered from the newspapers that the reason for the termination of the
case on which they had sat for almost two years was their assumed inability to
remember the evidence:
Taken as a whole they did not appear to have had di¬culty understanding the
evidence or the essentials of the case presented to them. Most of them insisted
they had a good or very good grasp of what the case was about from the prose-
cution opening onwards; that they understood very well the charges and the
di¬erent combinations of [the seven] defendants and counts; and that when the
case collapsed they had a clear understanding of the evidence.272
The fact that they said that they understood the evidence obviously did not prove
that they actually did understand it. The Chief Inspector™s report makes a highly
signi¬cant (and probably unique) contribution in considering this question:
During a group interview in early August 2005 they showed quite impressive
familiarity with the charges, issues and evidence, despite the length of time that

House of Lords, Hansard, 14 March 2006, col. 1130.
For a resum© of the background, the history and the arguments see Miriam Peck, House of
Commons Research Paper, n. 1, p. 486 above.
Review of the Investigation and Criminal Proceedings relating to the Jubilee Line Case (HM CPS
Inspectorate, June 2006) Executive Summary, para. 9. Ibid, p. 106, para. 11.7.
548 The jury

had elapsed, and the fact that they did not have their notes or access to documents
nor an opportunity to think back and refresh their memories. They recalled par-
ticular parts of the evidence, particular witnesses and the substance of their evi-
dence. They recalled the di¬erent counts . . . Occasionally there were individual
failures of recollection, but one advantage of the jury system is that not all jurors
are likely to have forgotten the same piece of evidence, if it is of any importance.273
So much for the argument that jurors cannot be expected to remember and
understand the evidence in long complex cases.

Trial by judge alone because of jury tampering
The White Paper Justice for All (July 2001) said that where an attempt had been
made to intimidate or in¬‚uence the jury the judge had a common law power
to stop the trial but no power to continue the trial without a jury. The
Government intended to legislate to give the judge power to continue the trial
without the jury. It asked whether this power should also exist where it was
anticipated that there was a serious risk that the jury would be subject to
bribery or intimidation. In such cases the courts currently ordered police pro-
tection for the jury. Quite apart from being extremely costly and burdensome
for the police, such protection might have to continue over a period of
months, and could be extremely disruptive and an unreasonable intrusion in
the lives of jurors.
Under the Criminal Justice Act 2003 s. 44274 a judge can order that the trial
be conducted without a jury if the prosecution satisfy him (1) that ˜there is evi-
dence of a real and present danger that jury tampering would take place™ and
(2) that despite any e¬orts that might be made to prevent it, ˜the likelihood that
it would take place would be so substantial as to make it necessary in the inter-
ests of justice for the trial to be conducted without a jury™. Under s. 46 the judge
(exercising his common law powers) may discharge the jury during the trial
because jury tampering appears to have taken place. If he is minded to dis-
charge the jury on such grounds, he must allow the parties to make represen-
tations. If he then discharges the jury he must order that the trial continues
without a jury unless in the interests of justice he decides that he must termi-
nate it. If he decides instead to stop the trial he may order that a new trial will
be conducted without a jury “ providing he is satis¬ed that the two conditions
in s. 44 are ful¬lled.

Trial by jury of sample counts only
The Domestic Violence, Crimes and Victims Act 2004 introduced a new
concept “ trial by judge and jury of sample counts followed after conviction by
trial by judge alone of other similar counts.

273 274
Ibid. In force from July 2006 “ SI 2006/No. 1835.
549 Trial on indictment without a jury

The provisions for a two-stage trial process were based on the recommenda-
tions of the Law Commission in its report E¬ective Prosecution of Multiple
O¬ending.275 The Law Commission Report stated that its work on the problem
was prompted by the decision of the Court of Appeal in Kidd 276 in which the
court held that it o¬ended a fundamental principle for the defendant to be sen-
tenced not only for the specimen o¬ences of which he had been convicted but
also for other o¬ences for which they were specimens that he had not agreed
could be taken into consideration. The ruling meant that in such cases the
defendant would escape being sentenced for the true range of his o¬ences. This
was the problem addressed by the Law Commission.
Following the Law Commission™s recommendation, s. 18 of the 2004 Act
provides that the prosecution may apply to a Crown Court judge for a trial on
the basis that some but not all counts in the indictment may be tried by a judge
without a jury. Three conditions must be satis¬ed: (1) that the number of
counts in the indictment is such ˜that a trial by jury involving all those counts
would be impracticable™; (2) that each count or group of counts tried with a
jury can be regarded as a sample of counts which could be tried without a jury;
and (3) that it ˜is in the interests of justice™ for an order to be made under the
section. (At the time of writing the provision was not yet in force.)

Young defendants
Defendants under eighteen charged with an indictable o¬ence other than
murder must be tried summarily unless the o¬ence is one of certain grave
o¬ences for which they may be sentenced to a long term of imprisonment or
where they are charged with an adult and the magistrates consider it to be in
the interests of justice that all should be tried together. Lord Justice Auld stated
that in 1999 close to 5,000 young defendants were committed for trial in
the Crown Court and nearly 1,000 were committed to the Crown Court for
Auld recommended that all cases involving young defendants committed to
the Crown Court for trial or sentence should instead be put before a special
sitting of the youth court constituted by a judge sitting with at least two expe-
rienced youth panel magistrates and exercising the full powers of the Crown
Court.277 The court should have the power to sit in private. (˜Notwithstanding
the public notoriety that such cases now attract through intense media cover-
age, I consider that the court proceedings should normally be entitled to the
same privacy as those in the present youth court™.278) The only exception should
be where the young defendant was tried jointly with an adult. Such cases should
continue to be subject to the Practice Direction issued in February 2000279 as a
No. 277, 2002.
[1998] 1 WLR 604. (The decision is also referred to as Canavan.)
277 278
Auld, Ch. 5, para. 211, p. 216. Auld, Ch. 5, paras. 185“95 and 206, pp. 205“9 and 213.
[2000] 1 Cr App Rep 483, [2000] 2 All ER 285.
550 The jury

result of the cases of Thompson and Venables, both eleven years old when they
were convicted at the Crown Court of the murder of two-year-old James Bulger.
The European Court of Human Rights held in December 1999 that they had not
had a fair trial.
The Practice Direction stated that the trial of young defendants should, if
practicable, be in a courtroom in which all the participants are on the same
level, the defendant should be allowed to sit with family members and his legal
representatives, the trial should be conducted in language that he can follow and
on a timetable that takes account of his concentration span, robes and wigs
should not be worn unless the defendant asks or the court orders that they
should be and the court should be prepared to order that attendance be
restricted to a small number of persons. Facilities for reporting the trial must be
provided but they can be restricted in the courtroom itself. If so, they must
be relayed to another room to which the media have free access.
The Government™s White Paper Justice for All (July 2001) said that many wel-
comed the proposal in Auld to take young defendants out of the Crown Court.
Certainly, the younger the defendant, the stronger that case. ˜There was however
some concern over those in the older age group™. One option would be to give
the Crown Court a discretion to retain cases involving sixteen- and seventeen-
year-olds. As regards young defendants charged with adults, the Government
invited further views.
The Criminal Justice Act 2003 did not include any provisions on this topic.

17. The operation of the jury (and trials) in former times
An American scholar, Professor John Langbein of the University of Chicago,
writing in 1978, demonstrated from the Old Bailey Sessions Papers for the
period 1670“1730 that at that time the criminal trial proceeded in a way that
would now be regarded as most improper. The Old Bailey Sessions Papers were
so-called ˜chap books™“ pamphlets written by non-lawyers for sale to the general
public, each pamphlet recounting the details of the latest cases.
They ran from 1674 for nearly two and a half centuries. (Over 100,000 of
the trials from 1674 “ 834 are now freely accessible at www.oldbaileyonline.
org.) During that time they underwent major changes of format and function,
from chap books to newspapers to true law reports. The newspaper phase had
been reached by the mid-1680s. At that time they were published regularly and
they recounted a considerable number of cases. The Old Bailey sat eight times
a year and a Sessions Paper was produced for each session. In the early years
they ran to four pages and everything was highly compressed. In the 1720s
they were eight pages long and in the 1730s they burgeoned to twenty page
pamphlets. In the late 1730s the reports of a single session required two twenty
page pamphlets. They were seemingly written mainly for laymen and are
therefore not an ideal source for understanding of the system of trial, but
Langbein says that they ˜are probably the best accounts we shall ever have of
551 The operation of the jury (and trials) in former times

what transpired in ordinary English criminal courts before the late eighteenth
The features of the trial at that time included the following:
• A single jury was empanelled to hear a large number of cases. Typically, there
were only two twelve man juries for the whole sessions “ a London jury and
a Middlesex jury. A session lasted several days and processed ¬fty to a hundred
felony cases. In December 1678, for instance, there was a two-day session. On
the Wednesday morning the London jury tried two cases; the Middlesex jury
tried seven. In the afternoon the London jury tried three cases. The next
morning the Middlesex jury had eight cases and the London jury six. On
Thursday the London jury was discharged whilst the Middlesex jury had six
cases. Between them the two juries returned verdicts in thirty-two cases
involving thirty-six accused in two days!
• The cases were commonly tried and decided in batches. The jury would hear
a number of trials and would then go o¬ to deliberate on all the cases together.
In the cases in December 1678, for instance, the Middlesex jury which heard
twenty-one cases deliberated only three times. The ¬rst batch consisted of
seven cases, the second of eight cases and the last of six cases.
• Many of the jurors were veterans of earlier sessions. Jurors it seemed were
drawn from a tiny cohort.
• As is obvious from these facts, trials took place at amazing speed. Most cases
were not guilty pleas but they were disposed of in short order. Typically a jury
heard twelve to twenty cases in a day. Many of the not guilty pleas, it is true,
were somewhat half-hearted. The accused made no reply or o¬ered no evidence
or brought only character witnesses. One reason for the striking speed of events
was that trials tended to take place within a few weeks of the event and the rec-
ollection of witnesses was therefore fresh. Most of the trials at the December
sessions concerned crimes that had occurred in October or November. Also the
cases were normally based on committal papers prepared and even presented
by the justice of the peace or his clerk. The committal procedure often resulted
in the accused making a statement or confession and the not guilty plea that
then followed was more pro forma than real. There were no lawyers either for
prosecution or defence. The prosecution was at least allowed to have a barris-
ter whereas the defence was not. In important cases, reported as State Trials, the
prosecution was always represented, but in ordinary cases normally it was not.
In the December 1678 session, for instance, there was no mention of any pros-
ecution counsel in any of the thirty-two cases. In the absence of a lawyer there
was no opening and closing speech, no examination or cross-examination of
witnesses and no motions on points of evidence. Questioning of witnesses
was done by the judge himself or by the accused. The accused could not give
sworn evidence but he could question both prosecution witnesses and call and

J.H. Langbein, ˜The Criminal Trial Before Lawyers™, 45 University of Chicago Law Review,
1978, pp. 263 and 271.
552 The jury

question defence witnesses. He would be asked by the judge what reply he made
to prosecution evidence and it was normal for him to respond rather than to
rely on any right of silence or right not to incriminate himself. (Langbein says
that in the entire sixty-year period from the 1670s he did not come across a
single case in which an accused person refused to speak in reliance on the right
of silence.) Also the judge gave few instructions to the jury about each case. Jury
deliberations were often perfunctory. Sometimes the jury did not even retire to
reach a verdict.
• The judge played a far more directing role than would be permissible today.
In Bushell™s case in 1670 the principle was established that jurors could not be
¬ned for returning a verdict contrary to the trial judge™s instructions, but
Bushell™s case was untypical. The Old Bailey Sessions Papers show the judge
normally exercising so much in¬‚uence over the jury that Langbein suggests
˜it is di¬cult to characterise the jury functioning autonomously™ (at p. 285).
The judge often served in e¬ect as examiner-in-chief of both the witnesses
and the accused. In this capacity, as well as in summing up to the jury, he exer-
cised what seems to have been a wholly unrestricted power to comment on
the merits of the case. Sometimes the judge did not bother to use the power,
but when he felt like it he would tell the jury what verdict to ¬nd and normally
the jury followed the judge™s indications.
• Sometimes if the judge did not think the evidence for one side or the other
was su¬cient, he would stop the trial and tell the party in question to get evi-
dence on the point in question and start again. Today the double-jeopardy
rule prevents the prosecution from stopping a case that is going badly and
starting afresh, but in the seventeenth and eighteenth centuries this occurred
not infrequently. The power seems to have been used mainly in order to assist
the prosecution rather than the defence.
• There is evidence in the reports of some instances of exchanges between the
judge and the jury as the case was proceeding. The jury would comment as
the case was developing, or would ask questions or would ask for certain wit-
nesses to be called. Moreover it often gave reasons for its decisions and some-
times would be questioned about the verdict by the judge.
• In some instances the judge rejected a verdict, probed the jury™s reasoning,
argued with the jury, gave further instructions and told it to go away to delib-
erate afresh. If the judge did not agree with a jury™s conviction of the defen-
dant, it was common for him to recommend a pardon or commutation of
sentence and such recommendations were often in¬‚uential.
• The Old Bailey Sessions Papers also threw light on the rules of evidence that
were then applied. Hearsay evidence seemed to be admitted quite commonly.
If the judge ruled that hearsay evidence should be excluded, no warning was
normally given to the jury to disregard the excluded evidence. Nor was the
jury sent out of the court room while the argument went on as to the admis-
sibility of the evidence. Since there was normally no lawyer for either side, this
was not appropriate.
553 The operation of the jury (and trials) in former times

The Sessions Papers also show that evidence of previous convictions was fre-
quently considered by the jury as part of the evidence.
Langbein suggests that the modern concept of fairness to the accused requiring
exclusion of evidence that would taint the jury had not developed by that time.
At a time when the judge dominated the jury there was little thought of keeping
prejudicial evidence away from them. The law of evidence, with its modern
exclusionary rules, developed not in order to control the judges but as part of
the rise of the lawyer as a participant in the criminal process. The rise of lawyers
cost the judges their commanding role and thereby made the jury more dan-
gerous, since the judge could not control it so well.
The rule that the accused could not have a lawyer started to break down in
about the 1730s. Until then, according to Langbein, the absence of defence
counsel was justi¬ed by three main arguments. First, the trial judge was sup-
posed to serve as defence counsel. Secondly, the requirement of a high degree of
proof was regarded as a safeguard. If proof of that level could be mustered
against the prisoner it would be useless for him to have a lawyer since he would
plainly be guilty. Thirdly, the accused knew more about the case than anyone else
and could not therefore be properly served by an intermediary. On the other
hand, curiously, lawyers were allowed for misdemeanour cases though not nor-
mally for felonies. Lawyers were also permitted if there was some point of law to
argue. If the court did not see the point, however, it was left for the accused
himself to raise it and to persuade the judge to allow him to have a lawyer.
Defence lawyers began to play a role in examining and cross-examining wit-
nesses in the 1730s, though the accused himself continued to play the same role
as before as well. There was no real di¬erentiation of function between counsel
and the accused, but gradually the role of the lawyer developed and, as Langbein
puts it, the lawyers eventually broke up the ancient working relationship between
judge and jury ˜and cost the judge his mastery of the proceedings™ (at p. 314).
In the period covered by the Sessions Papers studied by Langbein, the accused
in e¬ect therefore lacked the safeguards both of the inquisitorial and of the
adversarial systems. There was neither proper investigation of claims of non-
guilt nor rules of evidence, the assistance of counsel nor appropriate rules for
the selection, instruction and control of the jury.
Another American scholar, Professor Malcolm Feeley of the University of
California, conducted a study of 3,500 cases at the Old Bailey from 1687 to
1912.281 He found that in the 1830s, trials accounted for no less than 95 per cent
of all adjudications, but trials were completely di¬erent from what we now
think of when we use that word:
Typically defendants were not represented by lawyers; they rarely confronted
witnesses in any meaningful way; they rarely challenged evidence or o¬ered

M.M. Feeley, ˜Legal Complexity and the Transformation of the Criminal Process: The Origins
of Plea Bargaining™, 31 Israel Law Review, 1997, pp. 183 and 188.
554 The jury

defences of any kind. And when the accused or someone in his or her behalf did
occasionally take the stand, more often than not, they did not o¬er a spirited
defence, but o¬ered perfunctory excuses or defences, pleas for mercy, or in the
case of witnesses, o¬ered testimony as to good character or mitigating factors.
Indeed the eighteenth and early nineteenth century trial (and earlier) more
closely resembled the modern sentence hearing or plea bargaining process than
it does a full-¬‚edged modern jury trial.
On the origins of defence lawyers see J. Langbein, ˜The Prosecutorial Origins of
Defence Counsel in the Eighteenth Century: the Appearance of Solicitors™, 58
Cambridge Law Journal, 1999, pp. 314“65.
See also an illuminating, long article by S. Landsman, ˜The Rise of the
Contentious Spirit: Adversary Procedure in Eighteenth Century England™, 75
Cornell Law Review, 1990, pp. 498“609.


J. Baldwin and M. McConville, Jury Trials (Clarendon Press, 1979).
Z. Bankowski and G. Mungham, ˜The Jury as Process™ in P. Carlen (ed.), The Sociology of
Law (University of Keele, 1976).
W.R. Cornish, The Jury (Penguin, 1971).
P. Darbyshire, ˜The Lamp that Shows that Freedom Lives “ Is it Worth the Candle?™,
Criminal Law Review, 1991, p. 740.
P. Darbyshire, ˜What can we Learn from Published Jury Research? Findings for the
Criminal Courts Review 2001™, Criminal Law Review, 2001, pp. 970“9.282
Lord Devlin, Trial by Jury (Stevens, 1966) and ˜The Conscience of the Jury™, 107 Law
Quarterly Review, 1991, p. 398.
P. Du¬ and M. Findlay, The Jury Under Attack (Butterworths, 1988).
S. Enright and J. Morton, Taking Liberties: The Criminal Jury in the 1990s (Weidenfeld
and Nicolson, 1990).
M.D.A. Freeman, ˜The Jury on Trial™, Current Legal Problems, 1981, p. 65.
T. Grove, The Juryman™s Tale (Bloomsbury, 2000).
H. Kalven, Jr. and H. Zeisel, The American Jury (Little Brown, 1966) and the review of
their book by E. Griew, ˜The Behaviour of the Jury “ A Review of the American
Evidence™, Criminal Law Review, 1967, p. 569.
P. Thornton, ˜50th Anniversary Article: Trial by Jury: 50 Years of Change™, Criminal Law
Review, 2004, p. 683.
For an overview of the jury in continental countries see R. Munday, ˜Jury Trial,
Continental Style™, Legal Studies, July 1993, pp. 204“24. For developments in Spain
and Russia see articles by the American scholar Professor S. Thaman, ˜Spain
Returns to Trial by Jury™, 21 Hastings International and Comparative Law Review,
1998, pp. 291“537; and ˜The Resurrection of Trial by Jury in Russia™, 31 Stanford
Journal of International Law, 1995, pp. 61“274.

The full study is on the DCA Website together with the Auld Review “ www.criminal-courts-
review.org.uk. It is available in hard copy as Occasional Paper Series 49 from Kingston Law
School, Kingston University.
555 Further reading on the jury system

For information and assessment of juries in England, Scotland, Ireland, Canada,
America, New Zealand, Spain and Russia see N.J. Vidmar (ed.), ˜Juries of the
World™, a special issue of Law and Contemporary Problems, vol. 62, 1999.
For an even broader survey of countries around the world under the title ˜The Lay
Participation in the Criminal Trial in the XXIst Century™ see Revue Internationale
de Droit Penal, 2001 (1) and (2) “ some 600 pages (almost all in English).
Chapter 6

Costs and the funding of legal

The cost of legal proceedings is widely regarded as the single greatest concern
confronting the justice system.1 For civil justice the costs concern a variety of
funders “ individuals, companies, trade unions, insurers and the public purse.
For criminal justice the costs fall mainly on the taxpayer.
The problem of costs bedevils all legal systems “ who should pay them, how
to keep them under control and what assistance is available for those unable to
a¬ord them. These are some of the topics addressed in this chapter.2

1. The new rules
In civil cases the court™s power to award costs in contentious3 matters ¬‚ows from
the Supreme Court Act 1981, s. 51 which provides that, subject to statute and
rules of court, ˜the costs of and incidental to all proceedings . . . shall be in the
discretion of the court™. The rules are now to be found in the Civil Procedure
Rules Parts 43“48.4 CPR 44.3(1) says that the court has a discretion as to
whether costs are payable by one party to another, the amount of those costs
and when they are to be paid.

For a startling illustration see King v. Telegraph Group Ltd [2004] EWCA Civ 613, [2005] 1
WLR 2282. There were no pre-action costs other than preparing a letter before action but by
exchange of statements of case the claimants had incurred costs of £32,000 “ including ¬fty-
four hours of a partner™s time at £370 per hour and forty-eight hours of a trainee solicitor™s
time at £146 per hour. Their estimate of the cost of preparing for and handling a ¬ve-day
court hearing in a libel case was £238,000.
For treatment of costs in civil matters generally the practitioner™s bible is Cook on Costs
published annually. For an instructive short history of the costs rules see Peter Hurst, ˜Going
Round in Circles™, 25 Civil Justice Quarterly, 2006, pp. 546-56. For a valuable review see
Micheal Cook, ˜That was the Costs Year that was™, 26 Civil Justice Quarterly, 2007,
pp. 134“51.
The rules distinguish between costs for ˜contentious™ and ˜non-contentious™ matters.
Cases which result in legal proceedings being initiated are contentious, even if they settle
before any court hearing. In contentious matters, there were formerly di¬erent rules for
the High Court and the county court. In April 1999, the di¬erence between costs in the High
Court and the county court was abolished.
They replaced Rules of the Supreme Court (RSC) Order 62 and County Court Rules (CCR)
Order 38.
557 The new rules

Who pays?
Under the old rules the position regarding contentious matters was clear and
almost mechanical. Although according to the rules the court had a complete
discretion, in fact, save in exceptional circumstances, the loser paid. At the end
of the case, counsel for the winner asked for the ˜usual order as to costs™ which
was made more or less automatically. The application was dealt with in seconds.
Where a case settled, the settlement was normally on the basis that the loser paid
the winner™s costs. (For exceptions to the ˜costs follow the event™ rule see
pp. 577“85 below. For discussion of the rule see pp. 571“73.)
CPR 44.3(2) states that the general rule still is ˜that the unsuccessful party will
be ordered to pay the costs of the successful party™, but the ˜Woolf reform™ rules
made several major changes from the previous system. The most important was
that the court has a much wider duty to exercise its discretion as to who pays
costs at the end of a case. CPR 44.3(4) states that in deciding what order to
make, the court must take into account all the circumstances including the
conduct of all the parties and whether a party has succeeded on part of his case
even though he has not succeeded overall. So a party that has lost may still get
his costs in respect of matters on which he won. For the contrast between the
old ˜winner takes all™ approach and the new more nuanced approach see Re
Elgindata Ltd (No 2)5 compared with, say, Jones v. University of Warwick.6 As an
example of the new approach there have been cases (p. 145 above) where a suc-
cessful party has been deprived of his costs because he unreasonably refused to
take part in alternative dispute resolution.
Issues versus percentage basis Assessing who has won on particular issues
can be a time-consuming exercise. In Verrechia v. Metropolitan Police Com-
missioner7 the Court of Appeal said that an order allowing or disallowing costs
by reference to success on particular issues should only be made if there was no
other order that could appropriately re¬‚ect the justice of the case. The costs of
making the determination might be disproportionate to the bene¬t gained. A
˜percentage™ order would often produce a fairer result than an ˜issues based™
order. Wherever practicable, the judge should endeavour to form a view as
to the percentage of costs to which the winning party should be entitled or,
alternatively, whether justice would be done by awarding costs from or until a
particular date.

[1993] 1 All ER 232.
[2001] EWCA Civ 535, [2001] All ER (D) 135 (Apr) “ defendants got no costs even though
they won the issue at the hearing as to the admissibility of a video of the claimant ¬lmed
secretly in her home because of the way in which the ¬lm had been obtained. For examples of
the application of the new approach see J. Ross, ˜Apportionment of Costs “ Winner does not
Take All™, 152 New Law Journal, 15 March 2002, p. 401; M. Goodwin, ˜Costs losers™, 146
Solicitors™ Journal, 15 November 2002, p. 104; M. Ditchburn, ˜Winner Takes All?™, 147
Solicitors™ Journal, 28 February 2003, p. 216; P. Jones, ˜Bad Conduct can Escalate “Reasonable”
Costs™, 154 New Law Journal, 23 July 2004, p. 1149; and 155 New Law Journal, 17 June 2005,
p. 939. [2002] EWCA Civ 605, [2002] 3 All ER 385.
558 Costs and the funding of legal proceedings

Factors to be taken into account in assessing the amount of costs
CPR 44.5 states that when determining the amount of costs, the court must take
into account not only matters that had previously to be taken into account (the
amount involved, the importance and complexity of the matter, the skill
required and the time spent) but also ˜(a) the conduct of all the parties includ-
ing in particular (i) conduct before, as well as during, the proceedings; and (ii)
the e¬orts made, if any, before and during the proceedings in order to try to
resolve the dispute™. Thus the court can take into account whether it was rea-
sonable to raise or to pursue particular allegations, whether a party exaggerated
his claim and the way in which the case was pursued or defended.
The overall e¬ect of the new costs rules was summarised in Cook on Costs:
The new Rules are not a mere codi¬cation of what was already there. They
introduced a new philosophy and approach to costs. In the past the court had
been concerned only to decide whether or not to award costs to one party or
the other at the end of a hearing, with any costs awarded being quanti¬ed at
the end of the proceedings if the parties could not agree them. Now costs per-
meate every aspect of civil litigation: the courts are charged with the responsi-
bility of managing cases to ensure that the work undertaken by the parties (and
therefore the costs they incur) are proportionate to the issues, while costs
orders may be made as sanctions to ensure that the conduct of the parties
(both before and during the proceedings) is in compliance with the new pro-
cedural code. As well as seeking to achieve proportionality and using costs
orders as sanctions, the new regime also aims to make the amount of costs
more predictable by requiring the parties to provide estimates of their costs at
various stages of the litigation, and for costs on the fast track to be ¬xed, ini-
tially for the trial only, but eventually for the whole action . . . The concepts of
proportionality and of the winner of litigation no longer virtually automati-
cally receiving all, or indeed any, of his costs, have also brought about funda-
mental changes in the conduct of litigation (p. 78).

Assessment (formerly ˜taxation™)
If the loser is ordered to pay the winner™s costs it does not mean all those costs
but only such costs as are assessed to be due, which will depend on the basis on
which the court has ordered them to be paid. The assessment is carried out by
court o¬cials and judges. This assessment was previously known as ˜taxation™
and those who conducted the process were Taxing Masters. From April 1999
taxation was renamed ˜detailed assessment™ and ˜summary assessment™. Taxing
Masters became ˜Costs Judges™, Taxing O¬cers became ˜Authorised Court
O¬cers™ and the Supreme Court Taxing O¬ce became the ˜Supreme Court
Costs O¬ce™. Any party aggrieved at a decision in a detailed assessment hearing
can appeal to a judge of the next tier. The appeal from the Authorised Court
O¬cer is as of right. In most other cases the aggrieved person will need per-
mission (formerly ˜leave™) to appeal.
559 The new rules

Summary assessment is where the court that has heard the case assesses the
costs right away so that the actual amount to be paid by the loser can be deter-
mined there and then (CPR 43.3). The Practice Direction states that ˜the general
rule is that the court will make a summary assessment of the costs in a fast track
case and at the end of any other hearing lasting less than a day™ (CPR, PD 44.7).
That means that in county court cases summary assessment is the norm. It also
generally applies in interlocutory (pre-trial) hearings where the court decides
that one party should pay the costs ˜in any event™ regardless of the ultimate
outcome of the case, but summary assessment does not apply where there is
substantial dispute about the costs. Failure to produce a summary statement
can be treated as a waiver of a claim for costs.
Judge Michael Cook (author of Cook on Costs) has written: ˜It is a truth uni-
versally acknowledged that the costs provisions are the least successful part of
the Civil Procedure Rules and that the least successful part of the costs provi-
sions is summary assessment™.8 The reason, he said, was that the judges were
performing a function that was not within their competence:
At the end of an exhausting fast track hearing, there is often the pantomime of
two barristers addressing a former barrister (the trial judge) who has had a one-
hour Judicial Studies Board crash course on costs, on matters of which none of
them has any practical experience. There is a one-page statement of costs pre-
pared by someone who is not present in court, which contains references to a
¬le of papers which is also conspicuous by its absence. The judge has to choose
between two sets of ¬gures apparently plucked from the air, or arrive at his own
by the same route.
Detailed assessment is when the bill is assessed at some point, weeks or
months after the case is ¬nished.9 It is common for the bills to be prepared by
specialist costs draftsmen “ itself a costly business.10 Recently there have been
indications that judges, restless about the huge level of costs, are prepared to
make radical reductions in costs.11

˜Costs Rules are a Plodder™s Charter™, 17 Litigation Funding, February 2002, p. 8.
See M. Bacon, Solicitors™ Journal, 1999, pp. 680 and 740.
In a case in 2006 it was estimated that the costs hearing would itself take some 30“40 days
with claimants™ costs in excess of £350,000. This followed a trial at which the claimants had
been awarded damages of over £10 million plus costs to be assessed if not agreed. The
claimants™ costs of the trial were ¬rst estimated at £3.9 million and subsequently came to £4.7
million. The defendants were given leave to appeal on condition that they paid £2 million on
account for costs plus £150,000 as security for the costs of the appeal. When the defendants
failed to pay anything the court ordered that they be debarred from taking part in the detailed
assessment. (Days Healthcare UK Ltd v. Pihsiang Machinery Manufacturing Co Ltd [2006]
EWHC 1444, QB, [2006] 4 All ER 233.) For details of the Association of Law Costs Draftsmen
see J. Robins, ˜Fellows Who Draft a Response to the Battle on Costs™, Law Society™s Gazette, 14
July 2005, p. 22.
In King v. Telegraph Group Ltd [2005] EWHC 90015 (Costs) the Senior Costs Judge reduced
the claimant™s bill by nearly 40 per cent. In Henry v. BBC [2005] EWHC 1034, QB the judge
and the Senior Costs Judge reduced the ¬gure claimed from £957,000 to £506,500 “ a
reduction of 47 per cent.
560 Costs and the funding of legal proceedings

Costs-only proceedings The 1999 reforms introduced the new concept of pro-
ceedings solely for assessment of costs when there is complete agreement on all
other matters (CPR 44.12A). The application is made under CPR Part 8. As will
be seen, this innovation has been used in an enormous number of cases.
Orders for payment of costs must now be paid within fourteen days Pre-CPR,
an assessment of interim costs was not made until the end of the case. The sig-
ni¬cance of CPR 44.8 requiring payment within fourteen days is that it power-
fully concentrates the minds of those considering whether to make interim
applications. They have to be ready to back their judgment that an interim
application is worthwhile with real money. It has had the intended e¬ect of sig-
ni¬cantly reducing the number of such applications.
Proportionality CPR 1.1(2) states that ˜proportionate™ refers to the amount of
money involved, the importance of the case, the complexity of the issues and
the ¬nancial position of each party. The Practice Direction supplementing CPR
44.5 expressly states that ˜proportionate™ does not necessarily mean a ¬xed per-
centage as there will be costs that have to be incurred even in small cases and
that solicitors ˜are not required to conduct litigation at rates which are uneco-
nomic™ (para. 11.2).
In Lownds v. Home O¬ce12 the Court of Appeal addressed the question of the
relationship between ˜reasonable™ and ˜proportionate™. Pre-CPR the test had
been reasonableness. The trouble with that test, Lord Denning said, was that ˜it
institutionalised, as reasonable, the level of costs which were generally charged
by the profession at the time when the professional services were rendered™ (at
[2]). If a rate of charge was commonly adopted it was taken to be reasonable.
Now the court also had to consider whether the costs were proportionate. CPR
44.3 in fact does not use the word ˜proportionate™ but, Lord Denning said, ˜the
considerations which should be taken into account when making an order for
costs are redolent of proportionality™ (at [3]). But where there is a clash between
proportionality and reasonableness, which takes precedence? The claimed costs
in that case were £17,000 plus VAT in a medical negligence case that settled for
£3,000. The District judge allowed costs of just under £15,000 plus VAT. Most
of the costs had been incurred before the CPR came into force and on that
ground the Court of Appeal said it would not interfere with the decision. But it
considered what its approach would be in respect of costs post-CPR. The crucial
point to emerge from the decision was that costs that are necessarily incurred
should be allowed even if the result is disproportionate. There should be a two-
stage process. First, look to see if the costs as a whole are disproportionate. If
they are not, check to make sure that each item was reasonably incurred and that
the cost for each item was reasonable. If the global costs are disproportionately
high, check to see whether any costs have been incurred unnecessarily. Costs
that have been incurred unnecessarily may be recoverable from one™s own client
but they are not recoverable from the losing party.

[2002] EWCA Civ 365, [2002] 1 WLR 2450.
561 The new rules

In Giambrone v. JMC Holidays Ltd13 action was brought by 652 claimants
against a company that ran holidays. After a costs hearing lasting two and a half
days the Costs Judge held that the claimed costs were disproportionate. The
claimants appealed unsuccessfully. Morland J who heard the appeal said that a
Costs Judge should be able to deal with overall proportionality in a matter of an
hour or less. He also said that appeals against a preliminary decision on pro-
portionality were to be discouraged.14
Costs estimates In fast track and multi-track cases the parties must ¬le cost
estimates at various stages “ with the allocation questionnaire, with the pre-trial
checklist, and at other stages as ordered by the court. (Litigants in person are
exempt.) The estimates should show costs under ten di¬erent headings and
should di¬erentiate between costs already incurred and those to be incurred.15
Copies must be served not only on the court and the other side but also on the
lay client. The estimates must be updated. The purpose of estimates is to keep
the parties informed, to assist the court in deciding what case management
decisions to make and what, if any, costs orders to make. The court can take the
estimate(s) into account when assessing the reasonableness of any costs
claimed. In Leigh v. Michelin Tyre Plc16 the Court of Appeal identi¬ed three cir-
cumstances in which the court may do so: (1) where there is a signi¬cant
di¬erence between the estimated costs and the costs claimed, the di¬erence calls
for an explanation. In the absence of a satisfactory explanation, the court may
conclude that the costs claimed are unreasonable; (2) the estimated costs can be
taken into account if the other party shows that he relied on them “ for instance
in not making a settlement o¬er because the estimate was low; and (3) if the
court considers that di¬erent case management decisions would have been
made had the estimate been more accurate “ for instance by reducing the
number of expert witnesses. In Leigh the Court of Appeal did not penalise an
estimate that turned out to be far out because there was an explanation and the
paying party failed to show either reliance on the estimate or that di¬erent case
management decisions would probably have been made. The court rejected the
claim that an inaccurate estimate should, by de¬nition, be penalised. An esti-
mate was not a costs capping order.
In June 2005, ¬‚owing from the decision in Leigh, the rules were amended to
provide that if claimed costs exceed the costs estimate by more than 20 per cent
the excess will not be recoverable unless there is a ˜satisfactory explanation™.17

The different bases of costs
The level of costs depends on the basis of the assessment ordered by the court.
Before 1986 there were ¬ve di¬erent costs orders that could be made at the end

13 14
[2002] EWHC 2932, QB, [2003] 1 All ER 982. At [56].
15 16
Costs PD 43, paras. 6.1“6.6. [2003] EWCA Civ 1766.
PD 43, para. 6.5A. See ˜Judges Cracking Down on Costs™, Law Society™s Gazette, 13 April 2006,
p. 3 warning that the senior judiciary were clamping down on inaccurate costs estimates.
562 Costs and the funding of legal proceedings

of the case as to the basis of ˜taxation™. They were: ˜party and party costs™,
˜common fund costs™, ˜trustee basis™, ˜solicitor and own client basis™ and ˜indem-
nity basis™.18 In 1986 the system was changed. ˜Party and party costs™ was replaced
by the ˜standard basis™ of taxation which became the norm for both privately
funded and legal aid cases. On the standard basis all costs were allowed that were
reasonably incurred, with any doubts being resolved in favour of the paying party.
The other bases of costs (trustee, common fund and solicitor and own client)
were abolished and replaced by the ˜indemnity™ basis under which all costs were
allowed except insofar as they are of an unreasonable amount or have been unrea-
sonably incurred, with doubts being resolved in favour of the party being paid.
These de¬nitions were slightly modi¬ed in the April 1999 rules. Thus stan-
dard fees still do not allow costs that have been unreasonably incurred or that
are unreasonable in amount, but they must also be ˜proportionate to the
matters in issue™ “ a new concept. As before, any doubts are resolved in favour
of the paying party (CPR 44.4). Costs assessed on the indemnity basis are pre-
sumed to have been reasonably incurred and to be of a reasonable amount if
they were incurred with the express or implied approval of the client. They are
presumed to have been unreasonably incurred if they are of an unusual nature
or amount and the solicitor did not warn the client that as a result he might not
recover all of them from the other party (CPR 48.8).
It was held in McPhilemy v. Times Newspapers Ltd (No 2)19 that an order for
indemnity costs is not penal and carries no stigma or implied disapproval of the
defendant™s conduct and that the claimant can get interest on indemnity costs.

Non-contentious costs
If there are no proceedings or they are in a tribunal,20 costs are non-contentious.
Non-contentious matters are governed by the Solicitors™ (Non-Contentious
Business) Remuneration Order 1994, Article 3 which prescribes that a solicitor™s
remuneration shall be such sum as may be fair and reasonable having regard to
all the circumstances and in particular to the complexity of the matter or the
di¬culty or novelty of the issues raised, the skill and responsibility involved, the
time it takes,21 the number of documents, where the work is done, the amount
of money involved and the importance of the matter to the client.

2. Controls on costs
There are a variety of methods for seeking to protect the payer of costs from
excessive charges.

These ¬ve categories of costs were described by Sir Robert Megarry, Vice Chancellor, in EMI
Records Ltd v. Wallace Ltd [1982] 2 All ER 980.
[2001] EWCA Civ 933, [2001] 4 All ER 861, [2002] 1 WLR 934.
Other than the Lands Tribunal.
For an exploration of this issue see M. Cook, ˜Solicitors™ Hourly Rates™, 24 Civil Justice
Quarterly, pp. 142“50.
563 Controls on costs

˜Between party™ and ˜solicitor and own client™ assessment of costs
As has been seen, assessment of contentious costs (previously called taxa-
tion) is assessment by the court. By far the most common is where the loser
asks for the winner™s bill to be assessed “ now called ˜between party™ (for-
merly ˜party and party™) assessment, but such assessment does not reduce the
total bill. It only determines what each party is to pay “ the distribution of
the burden of costs as between winner and loser. The procedure to reduce
the bill absolutely is for the client to challenge his own lawyer™s bill by what
is called a ˜solicitor and own client™ taxation, or assessment, under the
Solicitors™ Act 1974, Part III. The client does not have to pay the amount by
which the bill is reduced. Such assessments are extremely rare “ partly
because clients feel embarrassment at challenging their solicitors™ bills, partly
through ignorance of the availability of the facility and partly because, unless
the client succeeds in getting the bill reduced by more than one-¬fth, he has
to bear the costs of the taxation. The solicitor is only required to inform the
client of this right at the stage of issuing legal proceedings to sue for unpaid
fees and now before entering a conditional fee contract. Many clients prob-
ably pay the bill without ever realising that they have a statutory right to chal-
lenge it. The right of challenge exists even if there is a written agreement
between lawyer and client as to the level of fees and even if the bill has already
been paid.

Fixed costs
Fixed costs have become a major new factor. There are various types:
Minor items In the past ¬xed costs were con¬ned to minor standard items in
civil litigation such as photocopies, attendance to issue or serve summonses,
attendance to deliver documents, issuing proceedings, entering a judgment,
enforcing a judgment etc. They apply where the claim is for a speci¬ed sum of
money and summary judgment is obtained or the claim is one where the court
gives a ¬xed date for the hearing when it issues the claim and judgment is given
for delivery of goods.
Small claims Fixed costs have always been a feature of small claims cases
where the only costs normally recoverable are ¬xed costs attributable to
issuing the claim, court fees, experts™ fees not exceeding £200 each and loss
of earnings by a party or witness up to £50 a day. If the case involves
seeking an injunction, the cost of obtaining legal advice up to £260 can be
recovered. Costs on a summary assessment in relation to an appeal may also
be allowed.22 A party who acts unreasonably can be ordered to pay such costs
as are assessed.

For a horror story illustrating this exception see Gregory v. Turner [2003] EWCA Civ 183,
[2003] 2 All ER 1114.
564 Costs and the funding of legal proceedings

Fixed costs for fast track cases Lord Woolf in his two Access to Justice reports
expressed the hope that all fast track costs would be ¬xed, but in the event, the
only part of the case for which ¬xed costs could be agreed by April 1999 when
the CPR were implemented was in respect of the day in court. The ¬xed
amounts, which include the fee for preparation for advocacy, are the same
regardless of the length of the trial.23 (Fast track cases are supposed to be ¬n-
ished within one day but that does not guarantee that one day will always
su¬ce.) The court has a discretion to increase or decrease the amounts because
of the conduct of the parties or of the lawyers (CPR 46.3).
Fixed fees in fast track cases however became much more important through
an initiative of the Civil Justice Council through its Predictable Costs Sub-
Committee and negotiations in what came to be called ˜the Big Tent™ between
the di¬erent interest groups. These bore their ¬rst fruit in December 2002 when
there was agreement on ¬xed costs for road accident cases above the small
claims limit and under £10,000 that settled without recourse to legal proceed-
ings. This new scheme became e¬ective as from October 2003. Save for excep-
tional cases, the costs are on a sliding scale of £800 plus 20 per cent of the agreed
damages up to £6,000 and 15 per cent from £6,000 to £10,000.24 Where in such
cases there is a Conditional Fee Agreement (pp. 632“33 below), the success fee
payable to the successful solicitor is restricted to 12.5 per cent.25
As of June 2004, the limiting of Conditional Fee Agreement success fees in
road tra¬c cases was extended to cover all road tra¬c cases other than those
within the small claims limit.26 As from October 2004 success fees for both solic-
itors and barristers in bodily injury employment claims up to any ¬gure also
became subject to ¬xed percentages.27 In 2005 agreement, again brokered by the
Civil Justice Council, was reached for the application of the same approach to
success fees for industrial disease claims.28

The hearing fees are on a scale depending on the value of the claim. Where the award does not
exceed £3,000 the ¬xed fee is £350; where it is between £3,000 and £10,000 it is £500; where it
is over £10,000 the ¬xed fee is £750. Where a solicitor attends with counsel, a ¬xed sum of
£250 is added (CPR 46.2).
For the details see 153 New Law Journal, 10 October 2003, p. 1497. For further details see the
Civil Justice Council™s Website www.civiljusticecouncil.gov.uk; and two articles by Professor
Peysner, the chairman of the Civil Justice Council™s sub-committee “ ˜Searching for
Predictable Costs™, Journal of Personal Injury Litigation, 2002, p. 162; and ˜Finding Predictable
Costs™, 22 Civil Justice Quarterly, 2003, pp. 349“70. See also his ˜Predictability and Budgeting™,
23 Civil Justice Quarterly, 2004, pp. 15“37. For a practitioner™s view see K. Underwood,
˜Current Issues “ Fixed Costs and Conditional Fees™, 24 Civil Justice Quarterly, 2005,
pp. 388“95. 154 New Law Journal, 23 January 2004, p. 92.
For solicitors, the limit for pre-trial settlement is again 12.5 per cent “ or 100 per cent if there
is a trial. For barristers, it is the same except that in fast track cases it is 50 per cent if there is a
settlement within fourteen days of the trial date and in multi-track cases it is 75 per cent if
there is a settlement within twenty-one days of the trial date: SI 1306/2004; Law Society™s
Gazette, 10 June 2004, p. 36.
25 per cent, rising to 100 per cent if a trial takes place. An additional 2.5 per cent is allowed
where the claim is funded by a membership organisation such as a trade union. Law Society™s
Gazette, 7 October 2004, p. 5. Law Society™s Gazette, 18 August 2005, p. 22.
565 Controls on costs

Lord Woolf intended that his proposed ¬xed-costs regime for fast track cases
under which between parties costs would be subject to a ceiling would also
a¬ect the level of costs charged by solicitors to their own clients,29 but so far at
least there is no such rule. CPR 48.8 provides that a solicitor can charge his own
client more than the amount he can recover from the other side providing there
is a written agreement with the client expressly permitting it. The ¬xed costs
scheme devised by the Civil Justice Council for road accident cases only applies
to between parties costs, so CPR 48.8 applies there too.
Legal aid work As will be seen ¬xed fees are already of major importance in
legal aid work and will become even more so (see pp. 620“22 below).
In civil work, the Legal Services Commission (LSC) has already to an extent
moved from payment by the hour to ¬xed fees. By 2006 when Lord Carter
reported, ¬rms were getting a ¬xed sum per case, regardless of the complexity
of the case, the time spent or the amount of disbursements incurred.30 If the
case was exceptional31 it fell outside the scheme. From September 2004 the
scheme was voluntary. In April 2005 it became compulsory.32
During the initial stage the fees paid were ˜tailored™ to ¬rms “ the amount was
based on the ¬rms™ average case costs in the year 2003“4, initially plus an
increase of 2.5 per cent. It was intended that from April 2006 ¬xed fees would
be based instead on national or regional ¬gures but in October 2005 the LSC
announced that the transition from the ˜tailored™ fees would be postponed to
April 2007. Announcing the change, it claimed that it was responding to sup-
pliers™ requests for a period of stability before further changes are introduced.33
As will be seen (p. 622 below) in its consultation paper of July 2006, the LSC
proposed that ˜tailored ¬xed fees™ would be replaced by ¬xed and graduated fees.
An advantage of ¬xed fees for ¬rms was an end to the hated LSC cost com-
pliance auditing (see p. 600 below). There was also the guarantee that payment
would be made without deduction. A majority of legal aid ¬rms of solicitors
joined the voluntary scheme. Bindman & Partners, one of the country™s leading
legal aid ¬rms, refused to do so. A partner in the ¬rm explained why:34
We do not consider it right for civil legal aid work to be paid on a ¬‚at rate.
Payment should depend on the work undertaken, and be underpinned by
assessment of the quality and reasonableness of the work done. Severing this
link exposes clients to arbitrary factors which will in¬‚uence whether they get
advice and assistance, and the nature and extent of the help they receive. This
must be contrary to the interests of justice. It places publicly funded clients in a

Such a system operated in Germany. (Woolf ™s Interim Report, Annex V, p. 263.) For fuller
treatment see D. Leipold, ˜Limiting Costs for Better Access to Justice™ in Zuckerman and
Cranston (eds.), Reform of Civil Procedure “ Essays on ˜Access to Justice™ (Clarendon Press,
1995) pp. 265 and 266“75.
The LSC eventually agreed to pay any increase in overall average disbursement costs.
Initially de¬ned as one that cost at least three times the ¬xed fee or £2,500, whichever was the
lower. Lawyers doing mental health work could choose whether to take part.
LSC, Focus, No. 49, December 2005, p. 2.
S. Chahal, ˜Putting solicitors in a ¬x™, Law Society™s Gazette, 28 October 2004, p. 15.
566 Costs and the funding of legal proceedings

wholly di¬erent and less advantageous position in comparison with privately
paying clients.
We also see serious adverse practical consequences for our clients. Suppliers
will take on cases which are ˜easy™, short term and predictable, at the expense of
other clients. Clients who need interpreters, or home visits, or are in hospital or
prison, will be discriminated against in favour of those who can get to the o¬ce
and speak English. Particular kinds of cases where legal expertise is most
required “ such as those before the social security commissioner “ will become
wholly impracticable to take on, while the temptation to take on cases that
require little legal input and can be cheaply concluded will be irresistible . . .
The ulterior purpose of the scheme, Ms Chahal said, was to meet the demand
by the DCA to deliver more acts of publicly funded legal advice and assistance
for the same money.
Fixed fees were a central part of the proposals put forward by Lord Carter in
his 2006 Review of funding for legal aid (p. 620 below). But the prospects
for implementation of these proposals, at least as scheduled for 2007, were
uncertain. 35
On ¬xed fees see K. Underwood, Fixed Costs (2nd edn, Lexis Nexis
Butterworths, 2006). See also P. Owston and S. McCall, ˜New Thinking for a
New World™, Legal Aid Review, March 2005, p. 12.

Scale fees
In cases in the county court, other than small claims cases, the level of fees was
formerly controlled by scales depending on the amount in issue. Until 1991
there were four scales; from 1991 there were three.36 Scale fees in the county
court went out with the implementation of the Woolf reforms in April 1999.
In the High Court, the old approach of scales for di¬erent items of work had
been replaced in 1986 by discretion which meant the solicitor had to justify each
item in his detailed bill of costs.
Conveyancing, which was formerly the single largest source of solicitors™
work,37 used to be subject to scale fees that were treated as both maxima and
minima “ the fee was set by reference to the value involved and the Law Society
allowed no competition between solicitors through undercutting. In 1973 this
system was replaced by a requirement that the charge be ˜fair and reasonable™
and from 1984 solicitors were permitted to advertise their fees. These reforms

On 19 October 2006 the Law Society™s Gazette, in a front page story headed ˜Falconer climbs
down over ¬xed-fee rates™, reported that the Lord Chancellor had ˜conceded that the
Government realised that there are signi¬cant problems with ¬xed fees™ and that
implementation might have to be delayed.
Lower Scale “ under £100, Scale 1 “ £100“3,000, Scale 2 “ over £3,000.
Conveyancing of residential property, which in the mid 1960s represented half of solicitors™
gross income, had reduced by the end of the 1990s to some 10 per cent “ see J. Jenkins, The
Changing Legal Market Place in England and Wales (Law Society, 1999) para. 7.1.
567 Controls on costs

introduced competition and caused fees to come down,38 but the Law Society
has continued to the present day to issue ˜guidance™ on how to calculate the value
element in non-contentious work, based on a percentage of the value of the
property. There are fee scales in the form of ˜guidance™ covering domestic con-
veyancing, probate and charges when acting for a mortgage lender.
The O¬ce of Fair Trading (OFT) in its 2002 report Competition in professions
(www.oft.gov.uk) said that although charges had dropped over the previous
decade, the fact that conveyancing and probate charges varied widely suggested
that the market was not highly competitive. (˜A greater degree of price conver-
gence would be expected in the presence of strong competition or price trans-
parency™.39) It also noted that bank charges for probate work were even higher
than those of solicitors. The OFT said that especially in the ¬eld of probate work
the fee guidance might inhibit or distort competition.

Pre-emptive cost capping orders
The courts post-Woolf have introduced a new order capping costs prospec-
tively. There was no speci¬c power in the CPR to do so but the judges deduced
the power from the courts™ general powers of case management in CPR, r. 3. In
AB v. Leeds Teaching Hospitals NHS Trust 40 Gage J set a cap on costs in a case for
damages for unlawful retention by hospitals of organs of deceased patients.
Over 2,000 claims had been noti¬ed. The potential damages were estimated at
£10“15 million. The lawyers™ estimate was that they would need 3,410 hours in
preparing the case. Despite the fact that the lead solicitors had agreed cost plans
with the Legal Services Commission, the judge reduced this to 1,750 hours and
put a cap on the claimants™ costs in respect of the generic issues of £506,500.41
The cap based on the estimate limited what the claimants could recover if they
succeeded, unless the court ordered otherwise.
The concept was approved by the Court of Appeal in King v. Telegraph
Group.42 The Court of Appeal, referring to early decisions in which cost capping
orders had been made,43 said that they could be made equally in defamation

The Law Society Working Party stated in 1994 that solicitors™ conveyancing charges fell
in real terms between 1986 and 1993 by no less than 45 per cent: ˜Adapting for the
Future™, Report of the Law Society™s Special Working Party on Conveyancing Services, 1994,
p. 9. OFT, para. 217, pp. 64“5 and similarly para. 219.
[2003] EWHC 1034, QB.
153 New Law Journal, 23 May 2003, p. 792; 12 Independent Lawyer, July/August 2003, p. 11.
[2004] EWCA Civ 613, [2005] 1 WLR 2282. The claimant had a conditional fee agreement
(CFA “ see p. 630 below) but no insurance to cover the risk of losing. The result was that if
the claimant won, the defendants would have to pay the claimant™s costs (estimated at some
£400,000) plus the success fee under the CFA (probably 100 per cent) whereas if the defendant
publisher won, it would be unlikely to recover any costs at all in respect of its costs of some
Solutia UK Ltd v. Gri¬ths [2001] EWCA Civ 61, [2001] 2 Costs LR 247; AB v. Leeds Teaching
Hospitals NHS Trust, n. 40 above; Various Ledward Claimants Meadway HA [2003] EWHC
2551, QB.
568 Costs and the funding of legal proceedings

cases.The court said that the power to make a pre-emptive costs order applied
both prospectively and retrospectively. Making such an order retrospectively
would however be wholly exceptional.44 The order must be applied for in good
time. If it came too close to the trial it would be refused. The court cannot inter-
vene of its own motion. It has to wait for an application.45
The reason for granting the order is that there is a real and substantial risk
that otherwise costs would be disproportionately or unreasonably incurred and
that that risk cannot be managed by ordinary case management and a detailed
assessment of costs after the trial.46

Remuneration certificates in non-contentious matters
The Law Society has traditionally provided a free service in reviewing bills in
non-contentious matters. The client asks for a remuneration certi¬cate. If the
certi¬cate suggests a lower fee, that is then the fee that the solicitor may charge.
Remuneration certi¬cates cannot result in the bill being increased. This proce-
dure is very little used. As from 1994 the system was modi¬ed so that it applies
only if the bill is for an amount under £50,000 and only if the client has paid at
least half the solicitors™ costs plus disbursements and VAT. The solicitor must
pay back to the client any amount paid him which the remuneration certi¬cate
states is excessive. In exceptional circumstances the requirement to pay half the
bill can be waived by the Law Society.

Legal aid work
Legal aid work is subject to fee rates and systems laid down by statutory rules
and regulations. Payments for legal aid work are subject to a variety of controls.
Much legal aid work was paid under hourly rates set by the DCA. (The basic
hourly rate for civil legal aid court work in non-family law matters in 2003 was
a paltry £74. This rate was the same for the whole country irrespective of the
level of fee earner. This basic rate had not been increased for almost ten years
since 1994!) Payments for prescribed family law work were paid on somewhat
higher rates.
The prescribed rate could be increased if the work was done with excep-
tional competence, skill or expertise, with exceptional dispatch or if it involved

Petursson v. Hutchinson 3G UK Ltd [2004] EWHC 2609, TCC. In that case a retrospective
order was refused. In AB v. Leeds Training Hospital NHS Trust , n. 40 above, the order applied
both prospectively and retrospectively.
For an example see Henry v. BBC [2005] EWHC 2503, QB, [2006] 1 All ER 154. In that case, if
the BBC lost, the costs it would have to pay, including the claimant™s success fee, were
estimated at £1.6 million. If it won, because of a limit of £100,000 on the claimant™s insurance,
it was unlikely to recover more than a ¬fth of its costs of some £500,000. The judge said that it
was a prime candidate for a costs capping order but the application had come too late.
For a review of the case law by District Judge Lethem see ˜Capping the Costs Gusher™,
Litigation Funding, June 2006, pp. 6“9.
569 Controls on costs


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