England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		5th December 2006

1. MR JUSTICE COLLINS: This is a case stated by justices sitting at Barnet Courthouse in relation to an order for costs that they made against the appellants, BPS Advertising Ltd, having convicted them on their plea of guilty of an offence contrary to the Town and Country Planning (Control of Advertisement) Regulations and section 224(3) of the Town and Country Planning Act 1990. What the appellants had done was to be responsible for the placing of a large advertisement, which in fact was next to the M1 motorway and which was on the old British Rail goods yard in the borough. The advertisement itself was what is described a 96-sheet advertisement hoarding. All that means is that it was one of those large advertisements at a considerable height from the ground.
2. The prosecution arose as a result of a complaint made to the local authority. They investigated and entered into correspondence with the appellants. The appellants asserted that they had deemed consent for the advertisement under class 8 of the relevant provisions. That covered, and I am putting it very broadly, the erection of advertisements if they were used as a barrier containing building works. Essentially, they were allowed if they were going to be temporary advertisements placed on such hoardings which protected the works from access from outside. That was what lay behind the particular provision in the regulations. There is no question but that the appellants did not have express consent for the erection of the advertisement in question.
3. The planning officer of the council made his investigations, took photographs and considered the claims made by the appellants. He took the view, and frankly I am not in the least surprised having seen the photographs, that they could not possibly as a matter of fact establish that these fell within the deemed consent provision. He pointed that out to the appellants, but they said that they were not going to remove the advertisement. There followed this prosecution. Initially they indicated that they were going to plead not guilty, relying upon the defence that they had raised in correspondence. However I think some three or so days before the hearing (in respect of which half a day had been set aside by the magistrates), an indication was given that they would plead guilty and that is indeed what happened.
4. The justices then had to consider the appropriate penalty. The maximum penalty for this particular offence is a fine, I gather, of £1,000. That was the penalty that they decided should be imposed, taking the view that they would give no credit for the plea of guilty, largely I think because it had not been indicated until the last moment. They took the view no doubt that the persistence in the maintaining of the advertisement illegally was done for profit and there was no excuse for what had been done. Accordingly, as I say, they imposed the maximum financial penalty.
5. In addition, the magistrates awarded costs against the appellants, and it is the amount of costs that has led to the statement of case. The amount in fact that was imposed by the justices was the sum of £7,459.67. That was based upon the preparation for a trial, the plea having been indicated, as I have said, at very much the last moment. The justices say in respect of that:

"We were of the opinion that the guilty plea to a serious offence was entered at the last moment therefore no discount would be given. We imposed a fine of £1,000. We were of the opinion after hearing the appellant on the issue of costs and giving the appellant the opportunity of obtaining details of income and assets that the costs were properly incurred by the respondent in anticipation of a full trial. We therefore ordered the appellant to pay £7,495.67 costs."

6. The justices did indeed give the appellants the opportunity of providing details of income and assets. That of course was to enable the justices to be satisfied that they had the means to pay any order which was imposed. That, as the appellants have indicated, is in the circumstances somewhat irrelevant because there is no question but that they are in a substantial way of business and could indeed afford the amount in question. That was not the concern that they had. What they were attacking was the amount of the costs, having regard to the fine that was imposed. Essentially the argument was that the amount was disproportionate.
7. There is a certain amount of learning as to what considerations should be taken into account by justices in deciding what is the appropriate quantum of costs in any given case.
8. Before going to those principles, I should just refer briefly to the provisions which enable costs to be awarded. They arise under section 18 of the Prosecution of Offences Act 1985, which provides by subsection (1), so far as material:

"Where—

(a) any person is convicted of an offence before a magistrates' court; ...

the court may make such order as to the costs to be paid by the accused to the prosecutor as it considers just and reasonable."

9. One question that arises is whether it is possible to include in that sum costs incurred in investigating the offence, as opposed to costs incurred in and about pursuing the prosecution.
10. The Divisional Court in Neville v Gardner Merchant Ltd (1983) 5 Cr App R (S) 349 decided that the discretion, under the then appropriate Act (that is the 1973 Act), was wide enough to cover an amount in respect of the time of an investigating officer paid out of public funds whose job it was to investigate alleged offences. Kerr LJ, giving the judgment of the court, indicated that prima facie such costs ought to be awarded and if the facts revealed that the whole of the costs of the investigation were the result of a specific complaint and not of any routine inspection, it would be right to award the whole sum. The authorities make it clear that in principle those costs are recoverable under an order that can be made by magistrates. But it does not of course mean that in every case they ought to be recovered. One has to bear in mind, as it seems to me, that although this did arise as a result of a complaint, the fact is that the officer who investigated was carrying out his activities as an officer of the council. It is true he was engaged in investigating this particular matter, but no extra costs, as far as I understand it, were incurred so far as his time is concerned. However, he took photographs and no doubt made visits which would have incurred some degree of expense and those would, generally speaking, be properly recoverable.
11. The case that I should refer to that sets out the principles that should be taken into account is R v Northallerton Magistrates' Court, ex parte Dove (1999) 163 JP 657. At page 663 of the report, Lord Bingham CJ, having summarised the effect of the various authorities, said it seemed to him that there were a number of propositions which might be stated and he said they were these:

"(1) An order to pay costs to the prosecutor should never exceed the sum which, having regard to the defendant's means and any other financial order imposed upon him, the defendant is able to pay and which it is reasonable to order the defendant to pay.

(2) Such an order should never exceed the sum which the prosecutor has actually and reasonably incurred.

(3) The purpose of such an order is to compensate the prosecutor and not to punish the defendant. Where the defendant has by his conduct put the prosecutor to avoidable expense he may, subject to his means, be ordered to pay some or all of that sum to the prosecutor. But he is not to be punished for exercising a constitutional right to defend himself. If it were otherwise, one would expect to find a right of appeal to the Crown Court under s.108 of the Magistrates' Courts Act. As it is, there is no right of appeal on the merits of such a costs order to the Crown Court and a defendant's only right of recourse is on grounds of unlawfulness or excess of jurisdiction by case stated under s.111 of the 1980 Act or by way of a judicial review.

(4) While there is no requirement that any sum ordered by justices to be paid to a prosecutor by way of costs should stand in any arithmetical relationship to any fine imposed, the costs ordered to be paid should not in the ordinary way be grossly disproportionate to the fine. Justices should ordinarily begin by deciding on the appropriate fine to reflect the criminality of the defendant's offence, always bearing in mind his means and his ability to pay, and then consider what, if any, costs he should be ordered to pay to the prosecutor. If, when the costs sought by the prosecutor are added to the proposed fine, the total exceeds the sum which in the light of the defendant's means and all other relevant circumstances the defendant can reasonably be ordered to pay, it is preferable to achieve an acceptable total by reducing the sum of costs which the defendant is ordered to pay rather than by reducing the fine."

Fifthly, he indicates that the defendant must give necessary data to the magistrates to indicate what his means are. As I say, in the circumstances of this case the means of the appellants was not a relevant issue in deciding what was the appropriate sum.

12. Ms Busch, in presenting this appeal, relies on proposition (4), that is to say that the costs awarded, being some seven and a half times the amount of the fine, were entirely disproportionate. It is to be noted that in Dove's case the amount that had been awarded was some £4,500 as against a fine of £1,000. The decision was that that sum (£4,500) was disproportionate, and the court quashed the decision and remitted the matter to the justices to reconsider what costs they should order the applicant to pay.
13. As Lord Bingham indicated, there is no question of an arithmetical relationship. On the other hand, one does inevitably look askance at an award of costs which is so much greater than the amount of the fine. I must bear in mind that the maximum fine in this case is £1,000. It may be that in a given case the cost of investigating and of prosecuting may be significantly greater than the maximum penalty that can be imposed. That should not in principle mean that an individual can get away with what otherwise is a criminal offence simply because it is too expensive to prosecute. The fact is that in most of these cases there is unlikely to be any issue that arises which can give rise to a significant complication and a significant outlay so far as costs are concerned. However, one has to recognise that Parliament has decided that a relatively small sum of money is the maximum penalty that can be imposed. Although the justices refer to this as a serious offence, one has to put that in the context of what the penalty for it can be.
14. It seems to me that in a case such as this one has to be careful not to overload the amount of costs by reference to the investigation, bearing in mind that the officer of the council who did the investigation was just that, an officer of the council who was carrying out his duties, was being paid as an officer for carrying out his duties in the normal way. He would have received payment whatever he had been doing at the relevant time. To that extent, although I recognise that such costs are in principle capable of being awarded, when one is looking to proportionality it seems to me that that is a relevant consideration that should be taken into account in deciding what is the appropriate amount.
15. Although it was not expressly referred to in the case, I have had the opportunity of seeing the schedule that was put before the justices to arrive at the sum. There are three amounts. The first is some £1,600 odd, which is the time spent by the planning enforcement officer. He claims a rate of £75 an hour. That rate is a perfectly reasonable one and no suggestion to the contrary has been made. The total amount of time between December 2003 (when the first complaint was made and investigations commenced) and November 2004 (when the necessary preparations for the trial had been completed) was said to be 21½ hours, reaching that figure, £1,600 odd.
16. The second item, which is the most substantial, is some £4,300 spent by the legal department. The amount of time that is said to have been spent is 22.7 hours. I appreciate that the point that was being taken was the alleged reliance on class 8. However that was met, and clearly met, by the photographs taken by the enforcement officer and the evidence that he was able to give. I cannot see how time of over 20 hours can conceivably be justified, and I am quite satisfied that that amount is, on the face of it, excessive.
17. Finally, it seems that counsel was instructed before the magistrates. That was reasonable because there was thought to be going to be a trial of this issue. Counsel chosen was called in 1998. There was a conference held before trial and attendance at trial. Counsel's fees overall (I presume this includes VAT) amounted to about £1,500. I am perhaps somewhat out of date in amounts that are justified for counsel, but for a half-day magistrates' hearing it seems counsel was doing not badly, particularly counsel who was then of 6 years call. But maybe those are figures that one thinks of as reasonable nowadays. It seems to me that, applying the approach set out in Dove's case and looking to proportionality, and having regard to the matters I have referred to when one looks at the more detailed breakdown so far as it existed of the costs, they were undoubtedly excessive.
18. Ms Busch asked me, if I so decided, to make an order myself as to the amount to be awarded, rather than remit it to the magistrates for them to make their decision. I have power to make any order that the justices could have made in determining the matter. It is difficult to reach any precise figure, and I do not propose to do so. It seems to me that in the circumstances of this case it is clear that the approach of the appellants did mean that more costs were incurred, and were rightly and understandably incurred, than should have been the case had they had the sense to appreciate that they had no defence to these summonses. The matter could then have been dealt with speedily, and indeed they probably would not have been prosecuted if they had removed the advertisement when they were informed that the council took the view that they had no deemed consent for it to remain there. They chose, as was their right, to maintain that they had a defence, but they saw sense at the last moment. But that meant that additional costs were undoubtedly properly incurred.
19. So far as the enforcement officer is concerned, it seems to me that he is entitled to at least a site inspection, costs of preparing a witness statement and probably costs of attending counsel on a pre-trial conference. I would assess the costs attributable to his activities at no more than £300 or £400.
20. So far as the legal department is concerned, as I have already said, I think 22.5 hours was grossly excessive and it seems to me an appropriate figure would be no more than about £1,000 to £1,500 at the outside.
21. Counsel's fees are properly incurred. I hesitate to indicate the appropriate amount, but I am bound to say that I think £1,500 is frankly too high and I would assess the costs there at somewhere in the region of £700 to £800.
22. I have given approximate brackets and approximate figures because, as I say, I am going to reach an overall round sum. It seems to me that an appropriate sum in all the circumstances is some £2,250, and that is the amount that I propose to direct should be ordered against the appellants.
23. MS BUSCH: Thank you very much, my Lord. There is one outstanding matter which is the costs of today.
24. MR JUSTICE COLLINS: Yes. What do you say your costs are today?
25. MS BUSCH: We do actually have a schedule of costs.
26. MR JUSTICE COLLINS: How much are you asking for?
27. MS BUSCH: We are asking for £5,452.
28. MR JUSTICE COLLINS: Are you? Let us have a look.
29. MS BUSCH: Asking. Perhaps you could regard this as a working document, particularly as regards my brief fee, particularly in the light of what my Lord has said.
30. MR JUSTICE COLLINS: I am not going to embarrass you Ms Busch. (Handed) I am out of date.
31. Yes, what happened so far as the judicial review is concerned?
32. MS BUSCH: We did get our costs --
33. MR JUSTICE COLLINS: You got your costs of those.
34. MS BUSCH: -- to be assessed, I do not actually know what the figure actually was.
35. MR JUSTICE COLLINS: No, that is going to be.... So who is going to pay these costs?
36. MS BUSCH: They get paid out of central funds is my understanding.
37. MR JUSTICE COLLINS: They only get paid out of central funds if you ask me to make an order out of central funds.
38. MS BUSCH: I believe that is the appropriate order to make.
39. MR JUSTICE COLLINS: Yes, I have got no jurisdiction to make that order, have I?
40. MS BUSCH: No, my Lord, in fact that decision came up this morning.
41. MR JUSTICE COLLINS: In fact there are ways round it, if I take the view that it is appropriate.
42. So what we are going to have, if I were to award you costs in anything like the sum you have claimed, is central funds getting your costs below, paying them here and the whole thing is a waste of time so far as any order is concerned.
43. MS BUSCH: Arithmetically that may be so, but the point of principle from my client's point of view was an important one.
44. MR JUSTICE COLLINS: I follow that. The order was more than you should have paid. In fact you do better, do you not?
45. I should not, I suppose, deprive you of your costs. I suppose if I were to say £2,250 you would tell me that I am simply sitting under a palm tree.
46. MS BUSCH: My Lord, there is plainly a difference, it is not simply the figures. Obviously the point in issue that you have been considering --
47. MR JUSTICE COLLINS: No, it is not actually quite the same, because of course the money you pay at the Magistrates' Court goes to Barnet Council, whereas the money here comes out of central funds --
48. MS BUSCH: Yes, that is right.
49. MR JUSTICE COLLINS: -- which is a difference, and I think it is a recognisable difference.
50. All right, you have won and there is no reason why you should not have your costs out of central funds. I will make the necessary arrangements to import another judge on that. But do you want me to summarily assess?
51. MS BUSCH: Yes, my Lord, yes please.
52. MR JUSTICE COLLINS: Because I am going to reduce it if I do. Let us have a look. I do not think the hours in preparation are on the whole unreasonable. I bound to say I think Ms Busch, with respect, you have done quite well.
53. MS BUSCH: Thank you, my Lord.
54. MR JUSTICE COLLINS: But as I say, I am probably out of date. Yes, I think overall if I were to say £3,500 that would be fair.
55. MS BUSCH: Thank you very much, my Lord, I am grateful.
56. MR JUSTICE COLLINS: I suppose it is fair that central funds should pay for mistakes made by the court. Thank you Ms Busch.