England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		13 November 2007

1. MRS JUSTICE DOBBS: This is an application for judicial review. An order under section 42 of the Supreme Court Act 1981 has been made against this claimant, but permission to commence proceedings was granted by Underhill J on 23 November 2006. Permission to apply for judicial review was granted on the papers by Collins J on 13 March 2007, albeit with some reluctance, in the absence of an acknowledgment of service. The claimant challenges the decision of the Walsall Magistrates' Court in relation to its taxation of a bill of costs submitted in connection with a Defendant's Costs Order made in his favour.
2. The brief chronology is as follows. On 24 April 2006 the claimant was acquitted by Walsall Magistrates' Court in respect of a charge of speeding. A costs order was made in his favour, for payment of his costs from central funds. On the following day, the 25th, he submitted a bill for his costs in the sum of £1,731.64. The bill claimed 139 hours for researching, site visits, preparing the defence and reports, and attending court. This was charged at £9.25 per hour, based on Civil Procedure Rules for litigants in person. The balance was made up of travel of 129 miles at £0.70 per mile, stationery, photocopying, phone, fax and postal charges.
3. On 5 May 2006, he asked for his costs to be expedited. He noted that his bill had not included purchasing Wilkinson on Road Traffic which had cost him £350. On 16 May, the determining officer acknowledged the bill of costs and set out the items which the court could pay, namely travelling, stationery, photocopying, telephone, fax and postage costs. It also invited a claim for subsistence for the day of the hearing. On 17 May, Mr Edgar responded, querying why his bill was not to be paid in full and asking for identification of any legislation relied on to refuse his costs.
4. On 27 May, he wrote a further letter indicating his determination to mention this matter in the Crown Court. On 6 June, a letter was sent to Mr Edgar from the determining officer, referring him to Regulation 23 of the Costs in Criminal Cases (General) Regulations 1986, and enquiring whether Mr Edgar was prepared to accept payment in the sum of £413.64. This figure, although not explained in the letter, represented the expenses referred to in the letter of 16 May, save for the fact that the travel costs was reduced to a figure of £0.45 per mile, being the appropriate figure. This figure was explained in the letter of 27 July. The challenge is to the decision letter of 6 June.
5. Following 6 June, there was substantial correspondence regarding Mr Edgar's intention to appeal the determination. Inter alia, Mr Edgar was asserting that he appeared as a witness for the defence, as well as being an expert witness for the defence, as he is an engineer by profession although retired .
6. On 9 June, he sent in an amended claim, which included the sum of £295 for Wilkinson on Road Traffic, bringing his total claim to £2,026.64. A receipt for the Wilkinson book was included in the claim, which shows that it was purchased on 2 December 2005. The court reminded him of the appropriate Regulation on the same day.
7. In this case, the claimant claims not only to be a self-represented defendant but also an expert witness. He says he is a qualified and experienced consultant engineer. He claims costs for time spent gathering and evaluating technical evidence, his case being that the speedometer in question on which his acquittal was based, was too close to the field of electromagnetic radiation from overhead powerlines, and thus the evidence of the speedometer should be excluded as the accuracy was adversely affected by the electromagnetic radiation. He bought special instruments at a cost of £238, which have not been put into the schedule of costs, as the detection instruments were deemed to be of use in other projects. Considerable time was spent researching the law and preparing the defence and technical report, as well as attending court on several occasions. He had to purchase Wilkinson on Road Traffic at a cost of £295 as the nearest copy was in Birmingham, 12 miles from his home, and was not available for loan.
8. The defendant, although not formally defending the claim, points out that the case collapsed due to some pertinent questions put by the district judge and that the claimant was never called to put his defence. It directs the court's attention to the relevant Regulation, and also to the case of Bedlington Magistrates' Court ex parte Wilkinson 21 October 1999 (reference CO/900/99) in which the Divisional Court considered the ability, or rather lack of it, of a litigant in person to recover costs in respect of time expended by him preparing a case.

The relevant law

9. Section 16 of the Prosecution of Offences Act 1985 relates to orders made in favour of an accused person, and it provides:

"16. Defence costs

(1) Where—

(a) an information laid before a justice of the peace for any area, charging any person with an offence, is not proceeded with;

...

(c) a magistrates' court dealing summarily with an offence dismisses the information;

that court or, in a case falling within paragraph (a) above, a magistrates' court for that area, may make an order in favour of the accused for a payment to be made out of central funds in respect of his costs (a 'defendant's costs order').

6) A defendant's costs order shall, subject to the following provisions of this section, be for the payment out of central funds, to the person in whose favour the order is made, of such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.

(7) Where a court makes a defendant's costs order but is of the opinion that there are circumstances which make it inappropriate that the person in whose favour the order is made should recover the full amount mentioned in subsection (6) above, the court shall—

(a) assess what amount would, in its opinion, be just and reasonable; and

(b) specify that amount in the order.

...

(9) Subject to subsection (7) above, the amount to be paid out of central funds in pursuance of a defendant's costs order shall—

(a) be specified in the order, in any case where the court considers it appropriate for the amount to be so specified and the person in whose favour the order is made agrees the amount; and

(b) in any other case, be determined in accordance with regulations made by the Lord Chancellor for the purposes of this section."

10. Stopping there for a moment, it can be seen from the scheme, that the costs which may be ordered to be paid out of central funds, are only those in respect of any expenses properly incurred.
11. The relevant regulations are Costs in Criminal Cases (General) Regulations 1986 (SI 1986/1335), which state, so far as material:

"5(1) Costs shall be determined by the appropriate authority in accordance with these Regulations.

(2) Subject to paragraph (3), the appropriate authority shall be-

...

(d) the justices' clerk in the case of proceedings in a magistrates' court."

12. Regulation 6 deals with the form in which claims for costs shall be made, and Regulation 7 deals with the determination of costs:

"7(1) The appropriate authority shall consider the claim, any further particulars, information or documents submitted by the applicant under regulation 6 and shall allow such costs in respect of-

(a) such work as appears to it to have been actually and reasonably done; and

(b) such disbursements as appear to it to have been actually and reasonably incurred,

as it considers reasonably sufficient to compensate the applicant for any expenses properly incurred by him in the proceedings."

13. Regulation 23, headed "Prosecutors and defendants" states that:

"A person in whose favour an order is made under section 16, 17 or 19(4) of the Act may be allowed the same subsistence allowance and travelling expenses as if he attended as a witness other than a professional or expert witness."

14. Turning to the authority. In the case of Bedlington Magistrates' Court ex parte Wilkinson, the applicant was charged with two charges arising out of a boundary dispute. The charges were dismissed and a Defendant's Costs Order made. There had been representation by solicitors in relation to the proceedings, but the extent of the representation is unclear. The applicant submitted his own bill of costs, which included hours that he had expended -- some 345 and a half hours, charged at a rate of £85 per hour, as he claimed to be a person with a number of skills. He also claimed the costs of a specialist graphics contractor and seven items of disbursements. The main issue arising from the case was, whether the figure for the hours spent in preparation of the defence, are expenses within the meaning of the legislation.
15. Moses J, having reviewed the law and the authorities, said this:

"The issue therefore arises as to whether the clerk was right in concluding that the costs in respect of the hours expended were not 'expenses properly incurred' within the meaning of the statute or the regulations. In my judgment, unfortunate though it was that he gave the applicant no opportunity to argue the point, he reached the correct conclusion. There is ample authority for the proposition that a litigant in person in criminal proceedings is not entitled to claim costs in respect of the amount of hours he has expended in labouring to defeat a claim. Harsh though that conclusion may seem, it has now been the authority of this court for many years."

The court in that case however did allow the expenses incurred in the employment of a graphics contractor as expenses properly incurred, being as they were by way of disbursement.

16. The appellant claims to be entitled to payment by virtue of being a witness in his own case, and in particular by virtue of being an expert witness. If the appellant had in fact employed the services of a recognised expert and incurred expense of so doing, then following Bedlington, those expenses arguably would be payable. However, he did not. He therefore did not incur any expenses or bear the cost of expert evidence being prepared for the case, save for the photocopying, et cetera, costs which were in fact reimbursed. The conclusion applying Bedlington, therefore, is that the claimant was not entitled to recover the bulk of the claim, namely the claim for time expended in the preparation of his defence. The fact that such is possible in the civil jurisdiction does not assist his case.
17. We now turn to the claim for Wilkinson on Road Traffic. Collins J, in giving leave, indicated that in his view the claim for Wilkinson was unreasonable as it could have been taken out from the library. The claimant says that he had to buy the volume as the library was 12 miles away, and being a reference book he could not take it out. I am not persuaded by this argument. First of all, it is clear, as the claimant himself points out, that he has on more than one occasion been to court to challenge the speeding meters. This seems to be his raison d'être. Secondly, he did not submit the claim for Wilkinson originally, and thirdly, it is to be noted, that the date of the purchase was some five and a half months before the case, so it is not clear whether the volume was bought for this case or for any other case that he had in court.
18. More importantly, however, even though the volume may not have been available for loan, the claimant could have photocopied the relevant parts for the purpose of his defence. I am not persuaded that this expense was properly incurred.
19. It follows from the foregoing that this application for judicial review is refused.
20. LORD JUSTICE THOMAS: I agree.