Council in skylight spotlight: Absent prosecutor's wasted costs order brings early victory for defendants

Pictured above, Quentin Hunt with the Powells

On October 31st, a legal battle regarding wasted costs unfolded between the London Borough of Lewisham Council and a Brockley resident, Trevor Powell, and his wife. This case, which was heard at Bexley Magistrates Court recently, revealed significant issues with the Council's earlier legal representation at a previous trial. And serial unexplained absences by its prosecutor.

At an earlier hearing on October 5th, the presiding judge, D.J. Sarah Turnock, expressed visible bewilderment at the Council's handling of what initially seemed like a mundane dispute over a single additional skylight's planning enforcement. However, it swiftly transformed into a consequential wasted costs order against Lewisham Council due to the absence of its prosecutor.

The inexplicable absence of the prosecutor did not sit well with the district judge. Council prosecutor Jay Kidd-Morton had demanded that the couple themselves appear or face further prosecution, a large fine, or even imprisonment. Unfortunately, at the earlier trial in Bromley Magistrates Court, Kidd-Morton herself couldn't be found, leading to the Powells' wasted costs application.

Following an attempt at direct contact by the judge to the missing prosecutor, the council failed to produce any substantiating evidence or rationale for the non-attendance, leaving both the defendants' counsel and judge firmly in the dark regarding the skylight enforcement case. The charge was having inserted one skylight too many into their roof-space.

On the judge's further inquiry, the prosecutor's absence was later attributed to an unspecified condition.

Later, at the wasted costs trial against Lewisham Council, Mr. Quentin Hunt, a distinguished Direct Access barrister with over 22 years' experience, raised the question: "What if the defendants had behaved similarly?" He was certain they would have felt the full force of the court since the judge had placed them on unconditional bail to appear.

Defence counsel Hunt continually raised critical points about why the prosecutor should not be allowed to evade further scrutiny or censure. He also questioned why Lewisham Council had not informed the court of any inability to attend the earlier hearing. The undisclosed condition was apparently known prior to the prosecutor's employment. "What's good for the goose must also be good for the gander," Hunt argued.

Hunt's unwavering commitment to finding the reason for such behaviour left an indelible mark on proceedings. District Judge Turnock disclosed that Kidd-Morton would not be returning as prosecutor 'anytime soon,' leaving unanswered questions about whether this was due to the unnamed condition or potential sanction by the judge.

Ironically, Lewisham Council's attendant prosecutor at the wasted costs trial, Edward Arash Abedian, challenged Mr. Hunt's hourly rate, prompting an observation by the judge, who acknowledged the substantial difference in experience between Hunt and the junior prosecutor.

The focus shifted to the wasted costs application, with Mr. Hunt highlighting Mr. Abedian's failure to serve evidence properly. Having submitted it just minutes before the court convened, he deprived Hunt of the necessary review time. However, he graciously let the matter drop. Moreover, the recurrent absence of Kidd-Morton in previous unconnected sessions raised suspicions, with the judge acknowledging a sense of mystery surrounding 'similar issues' with non-appearances. "Five or six times," were noted. 

D.J. Turnock delved into the past non-attendance at other trials, revealing a lack of clarity in the reasons provided and further intensifying doubts due to the opacity and communication gaps.

The forensic probing by defence barrister Quentin Hunt, along with the diligence and humility of the Powells, must have set a powerful example. Mr. Hunt emphasised the imperative of accountability and questioned why the Council hadn't arranged an alternative lawyer, considering its substantial financial resources. In a verdict that underscored Lewisham Council's negligence and lack of transparency, the judge ruled in favour of the Powells, wasted costs of £3,360 being awarded, with a payment deadline by November 28. A substantial victory for the Powells and much embarrassment for the cash-strapped council.

Discussions also surfaced about transferring the upcoming trial to a higher court, but the Powells, released on unconditional bail once more, expressed a preference for the Magistrates Court. Consequently, a trial date of December 21, 2023, was set for Bromley Magistrates, along with pre-date submissions.

The skylight wasted costs judgment spotlights the need for greater accountability within the public sector. It serves as a reminder of the importance of contingency plans for large organisations and public bodies, especially when foreseen absences due to known recurring disabilities can and will occur. It also highlights the misuse and potential abuse of publicly funded trials.

Following the win by the Powells, this case should be long remembered.