AWARD OF COSTS AGAINST THIRD PARTIES

HC Deb 20 October 2003 vol 411 cc451-5

Mr. Hawkins

I beg to move amendment No. 53, in page 45, line 6, leave out 'and'.

Mr. Deputy Speaker (Sir Alan Haselhurst)

With this it will be convenient to discuss amendment No. 54, in page 45, line 8, at end insert ', and (c) the proceedings have been instigated by or with the consent of the Attorney General.'.

Mr. Hawkins

This matter was debated in detail in Committee at column 171 and the following columns on 8 July. Concern was expressed by a number of organisations, including the Fleet Street Lawyers Society and the Newspaper Society, about the provisions for the award of costs against third parties. I, together with my hon. Friends and the hon. Member for North Norfolk (Norman Lamb) for the Liberal Democrats, presented those views in the debate in Committee.

The Minister gave us some helpful indications, which enabled us to reassure those outside this place on the issues related to clause 93 and the award of costs. In particular, the Minister made it clear that regulations would deal with some of the points that we raised. Nevertheless, there is still the question whether such proceedings ought to take place without the Attorney-General's consent. In relation to matters of contempt of court, as the Minister and the Government well know, it has always been the practice for the Attorney-General to be involved in the decision making. Contempt of court cases on behalf of the Government are usually brought by the Attorney-General. I have not only a great respect for the historic role of the Attorney-General, but a personal respect for the present Attorney-General, because he was chairman of the Bar Council for one of the years that I served on the general management committee—the inner cabinet of the Bar Council—when I chaired the corporate Bar. It would be a helpful safeguard for the Attorney-General, who has always had a role in such matters, to be able to play a part in the decision to make an application for the award of costs against a third party.

It is fair to say that the Newspaper Society and the Fleet Street Lawyers Society suggested further amendments, but I did not entirely accept every part of the case that they made to me. I felt, however, that amendments introducing the requirement that the Attorney-General's consent must be obtained for the instigation of proceedings or the making of any order, such as an application for an award of costs against a third party, would provide an independent safeguard against any arbitrary court action.

We have always been very proud in this country of the freedom of the press. If the Government were to accept our amendments, the Bill's provisions would mirror the statutory consent requirements that already exist in relation to contempt of court proceedings and breaches of reporting restrictions in the court. Guidance that might be drafted by the Attorney-General or regulations are not as good as having something in the Bill. Prior consent of the Attorney-General would avoid injustice, the costs that would result from unmerited proceedings for orders for costs and the making of unmerited orders, even if those were followed by successful appeals.

I hope very much that, on this small point, which does not go as far as some of those representing the press would wish to go, the Government will understand that we have been moderate in our suggestion, which is simply that the Attorney-General's prior consent should be obtained, as in contempt proceedings and proceedings for breaches of reporting restrictions in relation to court proceedings. I hope also that the Minister is prepared to accept our amendments.

Mr. Leslie

I understand why the hon. Member for Surrey Heath (Mr. Hawkins) has raised this point. May I briefly give a little of the background? Clause 93 will introduce provisions that are designed to fill a lacuna in the criminal costs provisions in section 19 of the Prosecution of Offences Act 1985. Section 19 already allows for the court to order one party to pay the costs incurred by the other as a result of the first party's unnecessary or improper act or omission.

Section 19A allows the court to make a wasted costs order against a party's legal representative where costs are wasted as a result of that representative's improper, unreasonable or negligent act or omission. Proposed new section 19B will simply extend liability for wasted costs to third parties. A power for courts to order third parties to pay costs is not novel. A broader power already exists in the civil courts. However, the power introduced by this measure will be limited to instances of serious misconduct by a third party.

I am afraid that I believe that the amendments cannot be accepted, and I shall explain why. We believe that the new provision that we propose contains sufficient safeguards to ensure the protection of third parties. In the first instance, the courts will have to establish that the impropriety constitutes serious misconduct.

As we have explained in earlier debates, we have not tried to set out in legislation what constitutes serious misconduct. Instead, our policy intention is to allow the courts to decide, given the circumstances surrounding each impropriety, whether the third party's actions constitute serious misconduct. The court will have to determine whether the serious misconduct caused a party or parties to proceedings to incur costs and, if so, whether it is appropriate for the third party to pay some or all of them. I say some or all, because the court should also consider the third party's ability to pay. As we have explained in earlier debates, the intention is not to put third parties such as small publishers out of business, but to ensure that if their serious misconduct causes parties to incur costs they should be liable for them, or for an appropriate portion of them.

8.45 pm

Before bringing third party costs proceedings, the court will have to give notice to the third party. The third party will have the right of representation at the third party costs hearing, and there will also be an automatic right of appeal. We therefore do not see why it should be necessary or helpful to engage the Attorney-General in criminal third party costs issues when he is not engaged with other costs matters. We rightly trust the courts to deal with the existing costs regimes, both civil and criminal, without the Attorney-General's intervention; and, as I said earlier, the criminal courts can already order costs against legal representatives when their improper, unreasonable or negligent act or omission causes wasted costs. In those instances it is not deemed necessary to bring in the Bar Council or the Law Society, because costs orders are a matter for the court rather than the professions' governing bodies.

The Attorney-General is of course involved in bringing proceedings for contempt of court, but the outcome of a costs order is very different from the possible outcome of being found to be in contempt, when there is a real possibility of being sent to prison. Even in contempt proceedings, it is only necessary to involve the Attorney-General when bringing proceedings under the strict liability rule, when publications appear to have interfered with the course of justice. In other contempt proceedings, we are content to allow the courts to deal with matters themselves.

The courts, both civil and criminal, have been dealing with costs orders for a very long time without the intervention of the Attorney-General. Clause 93 does no more than extend the criminal courts' costs powers to include third parties. We should trust the courts to operate the new legislation as well as they use their existing powers.

I invite the hon. Gentleman to withdraw the amendment.

Mr. Hawkins

I am not entirely satisfied by what the Minister has said. As I am sure he recognises, there is a legitimate fear among the press that the third party costs provisions could be used oppressively. That is why we thought it would be sensible, when a third party costs order was being sought—against a newspaper, for example—for the Attorney-General to be able to look into the matter before the application for the order was made. As the Minister was helpful in Committee when we raised other concerns on behalf of the Newspaper Society and the Fleet Street Lawyers Society, however, I shall not press the matter.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.