England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		4 December 2008

Thursday 4 December 2008

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: I will ask Mr Justice Maddison to give the first judgment.

MR JUSTICE MADDISON:

1. This is the renewed application by Budgens Stores Limited (the claimant) for permission to apply for judicial review of the decision of Hastings Magistrates' Court by their costs taxation officer, Mr Gill, made on 19 March 2008. The decision was that the sum due to the claimant by virtue of a Defendant's Costs Order made in the claimant's favour on 13 December 2006 was £25,134.80.
2. The case has its origins in an accident that happened in the claimant's supermarket in Battle, Sussex, on 21 February 2004. A customer slipped on a magazine insert that had fallen onto the floor at some earlier time. The result was that seven informations were laid against the claimant by Rother District Council, named in these proceedings as an Interested Party. The informations alleged various breaches of the Health and Safety at Work Act 1974, the Management of Health and Safety at Work Regulations 1999, the Use of Work Equipment Regulations 1998, and the Workplace (Health, Safety and Welfare) Regulations 1992. The claimant was acquitted of all charges on 13 December 2006, whereupon it successfully applied for a Defendant's Costs Order pursuant to section 16 of the Prosecution of Offences Act 1985.
3. In a bill of costs then submitted on the claimant's behalf on 6 March 2007, the sum of £63,704.99 was claimed. However, on 13 June 2007 Mr Gill allowed only £22,951.65 on a provisional taxation. Almost every item of the bill of costs had been reduced in amount or disallowed altogether.
4. On 15 January 2008, the claimant's solicitors made lengthy further representations as to their bill of costs, including details of costs that had been allowed in other broadly comparable cases in which a very much higher percentage of the costs claimed had been allowed.
5. On 19 March 2008, Mr Gill replied to the effect that, having considered the representations, he would increase his provisional taxation to the extent of now allowing £25,134.80 (about 40 per cent of the sum claimed).
6. In essence, the claimant submits that Mr Gill failed to apply regulations 7(1) and 7(2) of the Costs in Criminal Cases (General) Regulations 1986; alternatively, that he applied those provisions in a manner which no reasonable taxation officer could have done. The claimant submits that this was a complex, difficult and serious criminal case which required and received the attention of experienced specialist counsel, solicitors and expert witness. It is pointed out that there were numerous pre-trial court appearances and that the trial itself lasted three days. It cannot be said, it is submitted, that the claimant's case was conducted unreasonably or without reasonable competence and expedition so as to justify the disallowance of costs on such grounds.
7. Against the background of those general considerations, the claimant draws attention to certain particular features of the taxation. The first is that the fees of the first of the two solicitors instructed by the claimant in the sum of £3,109.05 were disallowed altogether. The second feature relied upon is that the fees of the second solicitors, Margetts and Ritchie, were reduced from just over £22,000 to just over £13,000. A third relates to the fees of counsel. For example, it is observed that the fees of Mr Philpott of counsel, who has appeared before us today, were reduced on taxation from just over £19,000 to £6,462.50. The point is made in respect of Mr Philpott (and without wishing to embarrass him) that he is an acknowledged leader in the area of the legal practice concerned; he was extensively involved in the preparation of the case, took part in pre-trial conferences, prepared detailed written submissions, attended three pre-trial hearings and attended the three day trial. It is submitted that a reduction of his fees by about two-thirds was not justified or reasonable. Fourthly, it is submitted that the same applies to the reduction of the fees of the expert specialist witness who was instructed, from just over £16,000 to just over £4,000.
8. In the defendant's written submission it is said, amongst other things, that Mr Gill is a highly experienced legal adviser and that he devoted considerable care, attention and time to the taxation, and properly applied the 1986 Regulations. However, the statement does not provide specific reasons as to why the bill of costs or particular items in it were reduced to the extent they were.
9. Having taken into account all of the points raised on the defendant's behalf, I consider that the claimant's case has sufficient merit to make it a properly arguable one, having regard in particular to the features of the criminal case identified by the claimants and the extent to which particular items of the bill of costs, and indeed the bill overall, were reduced. I would therefore grant this renewed application.
10. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: I agree that, exceptionally, this application for permission should be granted. I say "exceptionally" because this court normally would be very slowly to entertain an application for judicial review which involved detailed examination of the assessment of costs. When the single judge on paper refused permission he did so on the ground that in his view this was essentially a challenge which was a matter of disagreement and not arguable unlawfulness.
11. When this matter comes for hearing, the claimant will have to show that the assessment proceeded upon a wrong principle or was perverse. The principle is that set out in regulation 7(1) of the Costs in Criminal Cases (General) Regulations 1986. It involves a judgment firstly that work or sums of money was actually done or were expended; and secondly, that they were reasonably done or reasonably incurred. One can suppose for present purposes that the work was actually done or the money actually expended. What is reasonable is in many instances a matter of judgment. However, if the very large reduction in this bill of costs can be shown to have been made either by not applying those principles or by applying them in a perverse way, then it may well be that the application would succeed and the assessment would have to be done again before a different assessing officer.
12. I emphasise that the giving of permission should not be regarded as the court wishing or being willing to entertain normal disagreement applications relating to costs. Secondly, when this matter comes before the court for hearing, the parties will have to confine themselves to questions of principle. The hearing must not be expected to descend into a time-consuming examination of every detail of this bill of costs.
13. For these reasons I agree that permission should be granted. Mr Philpott, we thought that there should be some directions aimed to put in place what I have just said as to the proper confining of any hearing. You must agree about that surely?
14. MR PHILPOTT: Certainly. Thank you very much, my Lord.
15. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: And would those directions happily include, firstly, that there should be produced a skeleton argument on behalf of the claimant, not exceeding ten pages of normal type? Are you happy with that?
16. MR PHILPOTT: Yes, my Lord.
17. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: How long do you want for that?
18. MR PHILPOTT: Twenty-one days, my Lord?
19. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: Twenty-one days will be fine. One would then suppose that the defendant would put in a skeleton argument -- and we would so direct -- within 28 days after that. Would that sound reasonable? They are not here.
20. MR PHILPOTT: Yes, my Lord. I did consider whether a direction that we inform the Ministry of Justice -- the Lord Chancellor's Department -- of the application because often in cases of costs before a Costs Judge dealing with taxation in a Crown Court, the government would wish to be represented, as opposed to leaving it to the justices' objections.
21. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: I think it would be sensible for you to notify the appropriate part of the Department. One would hope that a great deal of expenditure was not additionally incurred, but that is a matter for them. And should we limit the hearing in terms of time? Yes.
22. MR PHILPOTT: Yes.
23. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: One hour each?
24. MR PHILPOTT: One hour, yes, because most of it is on paper. Our skeleton argument can condescend to about half a dozen or a dozen items which I can say as a matter of principle come within the parameters your Lordship has set out, without, I agree entirely, condescending to every little detail, every little £10 here or there, because ultimately the decision, if it did go in our favour, would be to remit the matter.
25. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: That is right.
26. MR PHILPOTT: And the matter will now be remitted, I respectfully suggest, not to the justices below.
27. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: Well, that is a matter for the court hearing the case. In that case permission is granted; claimant to file and serve a skeleton argument limited to ten pages of normal sized type within 21 days; defendants to respond with a skeleton of no substantially greater length within 28 days after that; hearing to be fixed in the normal course; time two hours (excluding judgment time); liberty to apply (because we are making an order in the absence of the other party); the claimant to notify the appropriate arm of the Department. Happy?
28. MR PHILPOTT: And costs reserved, my Lord?
29. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: Yes.
30. MR JUSTICE MADDISON: Mr Philpott, in the application there is a request for an order dispensing with service on the Interested Party; alternatively, an order that the Interested Party take no further part in the proceedings. Now, I assume that the Interested Party -- and that is Rother District Council (the original prosecutor) -- will have been served. They are not here today and it is simply a matter for them, is it not, whether or not they wish to contribute?
31. MR PHILPOTT: I accept that, my Lord. It would be highly unusual. I would say that they have no real standing in the argument. A Defendants Costs Order is of no relevance to them, but if they think it is so, they will be notified when the hearing is fixed and they will come along if they wish.
32. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: Thank you very much.
33. MR PHILPOTT: We will not encourage it. Thank you very much.