QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE JACK
|PATRICK JAMES ALEXANDER CUNNINGHAM||(CLAIMANT)|
|EXETER CROWN COURT||(DEFENDANT)|
Smith Bernal Wordwave Limited
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THE DEFENDANT WAS NOT REPRESENTED
Tuesday, 28 February 2003
Crown Copyright ©
"Counsel: Since the appeal has been successful, may I apply for a defendant's costs order?
"Counsel: I am not asking for costs against the local authority but costs from central funds.
"16(3) Where a person convicted of an offence by a magistrates' court appeals to the Crown Court under section 108 of the Magistrates' Courts Act 1980 (right of appeal against conviction or sentence) and, in consequence of the decision on appeal --
(a) his conviction is set aside; or
(b) a less severe punishment is awarded;
-- the Crown may make a defendant's costs order in favour of the accused."
That section contains no guidance as to how the discretion should be exercised. There are, however, two Practice Directions which are relevant to such orders; namely, Practice Direction (Crime: Costs)  1 WLR 498 and, Practice Direction (Crime: Defence Costs)  1 WLR 1832. Paragraphs 1.1 and 1.5 of the 1991 Practice Direction provide:
"1.1 This Direction shall have effect in magistrates' courts, the Crown Court, the Divisional Court of the Queens Bench Division and the Court of Appeal (Criminal Division) where the court, in the exercise of its discretion, considers an award of costs in criminal proceedings or deals with criminal legal aid costs and contributions.
"1.5 Where a court orders that the costs of a defendant, appellant or private prosecutor should be paid from central funds, the order will be for such amount as the court considers reasonably sufficient to compensate the party for expenses incurred by him in the proceedings . . . "
Paragraph 2.2 of the 1991 Practice Direction as substituted by paragraph 2 of the 1999 Practice Direction, expressly relates to this Crown Court and is in these terms:
"2.2 Where a person is not tried for an offence for which he has been indicted or committed for trial, or has been acquitted on any count in the indictment, the court may make a defendant's costs order in his favour. Such an order should normally be made whether or not an order for costs inter-partes is made, unless there are positive reasons for not doing so. Examples of such reasons are:
(a) The defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is."
Although the Practice Directions do not contain any paragraph which expressly refers to the approach to be adopted on appeals to the Crown Court. Paragraph 2.4 provides that the Crown Court "may make a defendant's costs order in favour of a successful appellant: see section 16(3)".
"2.8 In considering whether to make such an order, the court will have in mind the principles applied by the Crown Court in relation to acquitted defendants; see paragraph 2.2 above."
Such an order is a reference to a defendant's costs order. Paragraph 2.6 recognises the power of the Court of Appeal Criminal Division to make a defendant's costs order in favour of a successful appellant.
"In the appeal to the Crown Court, the defendant relied upon the guidelines of the Court of Appeal in R v Howe and Sons BAILII:  EWCA Crim 3531, 6 November 1998, concerning level of fines. Howe was not cited before the magistrates. The Crown Court allowed the appeal, stressing that the magistrates were not at fault and that if the Howe guidelines had been cited to them, they might have reached a different conclusion; see counsel's note of judgment at page 17 of the application. In deciding whether to allow the defendant the costs of the appeal, the Recorder was fully aware of the discretion of the Crown Court to allow costs out of the central funds. Having heard all the facts of the appeal and discussed the matter, the recorder and the justices refused costs. The basis for that refusal is, therefore, evident from the judgment on the appeal."
"We have noted that the offences are contrary to regulations made in 1982 and that the maximum fines were set 20 years ago and maybe should be reconsidered, but the maximum fine is £20,000. From the case of Howe which was on different facts but which provides guidance for assessing the gravity of health and safety matters, we have considered the appropriate amount. We feel that if the magistrates had had the advantage of reading the case of Howe, it was not their fault it was not placed before them, they might have reached a different conclusion."
In a note taken by a representative of the claimant's solicitors, the point is put somewhat more strongly, namely that, if the magistrates had had full details of the case of Howe, they would probably have reached a lower figure. It thus appears that the point taken in the letter of 11 November is that the reason the orders were refused is evident from the judgment on the appeal and is that the justices might have fined the claimant less if they had been referred to the decision of the Court of Appeal Criminal Division in Howe, which they were not.
"A professional judge should, as a rule, give reasons for his decision. I say 'as a general rule' because in the field of discretion there are well established exceptions. The most obvious and frequently used is the exercise of the judge's discretion on costs. As a general rule, the judge gives no reasons for the way in which he is exercising his discretion on costs, although if he were to make an unusual award of costs, it is clearly desirable that he should give his reasons for doing so. Another recent example of the judge not being required to give his reasons is when he refuses leave to appeal to the Court of Appeal, having refused leave to appeal from an Arbitrator (see Lord Diplock in Antaios Cia Naveira SA v Salen Rederierna AB, The Antaios  AC 191 at 205)."
"It is an unhappy fact that awards of costs often have greater financial significance for the parties than the decision on the substance of the dispute. Decisions on liability for costs are customarily given in summary form after oral argument at the conclusion of the delivery of the judgment. Often no reasons are given. Such a practice can, we believe, only comply with Article 6 if the reason for decision in respect of costs is clearly implicit from the circumstances in which the award is made. This was almost always the case before the introduction of the new Civil Procedure Rules where the usual order was that costs follow the event. The new rules encourage costs orders that more nicely reflect the extent to which each party has acted reasonably in the conduct of the litigation. Where the reason for an order as to costs is not obvious, the judge should explain why he or she has made the order. The explanation can usually be brief. The manner in which the Strasbourg Court itself deals with applications for costs provides a model of all that is normally required."
He also said this with regard to costs in paragraphs 27 to 30:
"27. At the end of a trial, the judge will normally do no more than direct who is to pay the costs and upon what basis. We have found that the Strasbourg jurisprudence requires the reason for an award of costs to be apparent, either from reasons or by inference from the circumstances in which costs are awarded. Before either the Human Rights Act or the new Civil Procedure Rules came into effect, Swinton Thomas LJ, in a judgment with which the Vice-Chancellor, who was the other member of the Court, agreed, said this in the Mayor and Burgess of the London Borough of Brent v Aniedobe (unreported) 23 November 1999, in relation to an appeal against an order for costs:
"' . . . this Court must be slow to interfere with the exercise of a judge's discretion, when the judge has heard the evidence and this court has not. It is also, in my view, important not to increase the burden on overworked judges in the county court by requiring them in every case to give reasons for their orders as to costs. In the great majority of cases, in all probability, the costs will follow the event, and the reasons for the judge's order are plain, in which case there is no need for a judge to give reasons for his order. However, having said that, if a judge does depart from the ordinary order (that is in this case the costs following the event) it is, in my judgment, incumbent on him to give reasons, albeit short reasons, for taking that unusual course'.
"28. It is, in general, in the interests of justice that a judge should be free to dispose of applications as to costs in a speedy and uncomplicated way and even under CPR this will be possible in many cases.
"29. However, the Civil Procedure Rules sometimes require a more complex approach to costs, and judgments dealing with costs will more often need to identify the provisions of the rules that have been in play and why these have led to the order made. It is regrettable that this imposes a considerable burden on judges, but we fear that it is inescapable.
"30. Where no express explanation is given for a costs order, an appellate court will approach the material facts on the assumption that the judge will have had good reason for the award made. The appellate court will seldom be as well placed as the trial judge to exercise a discretion in relation to costs. Where it is apparent that there is a perfectly rational explanation for the order made, the court is likely to draw the inference that this is what motivated the judge in making the order. This has always been the practice of the Court - see the comments of Sachs LJ in Knight v Clifton  Ch 700 at 721. Thus, in practice, it is only in those cases where an order for costs is made with neither reasons nor any obvious explanation for the order that it is likely to be appropriate to give permission to appeal on the ground of lack of reasons against an order that relates only to costs.