Neutral Citation Number: [2009] EWHC 168 (Admin)

CO/11370/2007 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 21 January 2009
 
B e f o r e:

LORD JUSTICE MAURICE KAY 

MR JUSTICE SIMON 
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Between: 
ORTON 
Claimant

v 
 (1) TRURO CROWN COURT
(2) WEST CORNWALL MAGISTRATES' COURT
Defendants

DEVON AND CORNWALL CONSTABULARY 
Interested Party 
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Computer‑Aided Transcript of the Stenograph Notes of  
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The Claimant appeared in Person
The Defendants and Interested Party did not appear and were not represented
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Judgment
1.	MR JUSTICE SIMON:  This is an application for judicial review of the decision of the Truro Crown Court on 3 September 2007 refusing to award the claimant his costs.  
2.	The facts as they appear in the papers before the court are that, on 2 June 2005, a warrant under the Proceeds of Crime Act 2002 was executed by the Devon and Cornwall Police at the claimant's business premises.  During a search, the sum of £12,740 in cash was discovered, and was seized on suspicion of its being obtained through criminal activity.  An application for forfeiture of the cash was made by the police pursuant to the provisions of Chapter 3 of the Proceeds of Crime Act 2002.  The initial application under section 298 of the 2002 Act was heard on 10 November 2006 by the West Cornwall Magistrates' Court.  The application was dismissed, and the police were ordered to return the money, with interest, to the claimant.  That order was suspended for 28 days pending an appeal.  
3.	The claimant's application for costs was considered by the same bench on 1 December and was rejected.  The claimant issued judicial review proceedings in relation to that decision (CO/1507/2007).  The application for permission was ordered by the single judge to be adjourned pending an appeal by the police to the Crown Court.  That appeal against the refusal to order forfeiture under section 299 of the Act was heard by the Crown Court.  
4.	The court's powers under section 299 are wide: 
"The court hearing the appeal may make any order that it thinks appropriate." 
5.	The court dismissed the police appeal, but an application by the claimant for costs in the sum of £5,869.92 was refused.  The claimant issued proceedings challenging that decision on 18 December 2007 (CO/11370/2007), and permission was granted on 14 May 2008 by the single judge.  
6.	No acknowledgment of service, detailed grounds or evidence have been served by either of the two defendant courts, nor by the police as an interested party.  Time for doing so has now expired and both would have required the leave of the court to participate in the hearing: see CPR Parts 54(9), 59(14) and 54(17).  Yesterday, the Administrative Court office was notified that the police did not wish to appear or make representations.  
7.	Section 302 deals with the power to order compensation if no forfeiture is ordered.  It does not deal specifically with the power to order costs.  The proceedings with which the two courts were concerned are civil proceedings.  The power to order costs before the magistrates is contained in section 64 of the Magistrates' Courts Act 1980.  This provision makes clear that it is a discretionary power, and that the test is whether it is just and reasonable to make such an order.  So far as the Crown Court hearing is concerned, the discretion will likewise be exercised in accordance with what is just and reasonable.  
8.	The only information available to this court as to how the courts approach the question of costs is contained in a letter written by the Crown Court in November 2007 and exhibited to the claimant's affidavit.  This sets out the judge's comments on the application:  
"My recollection is that we refused the respondent's costs because he had done little or nothing do rebut the appellant's case in confiscation proceedings, which were essentially a civil/balance of probabilty proceedings tried in the criminal courts." 
9.	For my part, I have difficulty in understanding this reasoning.  It was not for the claimant to rebut the police case, but for the police to establish their claim that the cash should be forfeited.  This they failed to do on both occasions.  There was no finding of conduct which might otherwise disentitle the claimant to his costs.  Although we have not heard argument on the point, it seems to me that, on an appeal to the Crown Court by the police, the powers of that court include a power to review the decision of the Magistrates' Court on the question of costs in accordance with the wide powers set out in section 299.  Having succeeded in both courts, I would have expected the claimant to have been awarded his costs in each case unless cogent reasons were advanced why he should not.  
10.	I would quash the decision of the Crown Court, remit the matter to the Crown Court and direct that the issue whether the claimant is entitled to his costs in each of the two courts be determined by the Crown Court in accordance with this judgment, if those costs cannot be agreed.  
11.	LORD JUSTICE MAURICE KAY:  I agree.  
12.	Now, Mr Orton, that deals with the costs in the Crown Court and the Magistrates' Court, and you go about it in the way we described.  The question then arises as to the costs of this application here.  Now, in relation to that, we may be able to help you.  In your schedule you are seeking to recover your costs incurred in the High Court.  I have just added up the items and separated them out from the other Crown Court and Magistrates' Courts.  I think they come to £498 in total.  Are you seeking an order for costs in that sum as far as these proceedings are concerned? 
13.	CLAIMANT:  Yes, my Lord.  
14.	LORD JUSTICE MAURICE KAY:  You will have had to pay fees in order to commence the proceedings, a filing fee here.  You say in your schedule: "High Court application fee £50; High Court application further fee £180".  You have commenced two separate proceedings, one against the magistrates and one against the Crown Court.
15.	CLAIMANT:  There was another £50 there.  I forgot about that.  There was another £50 for the second application.
16.	LORD JUSTICE MAURICE KAY:  There was another £50, right.  What is the "application further fee" then? 
17.	CLAIMANT:  I do not think we paid that.  I think we paid two lots of £50 and one lot of £180.  I only remember the second lot of £50 because it was over a year ago now and I had forgotten, but I think we only paid £180 once.
18.	LORD JUSTICE MAURICE KAY:  But what did you pay the £180 for?
19.	CLAIMANT:  Further application fee.
20.	MR JUSTICE SIMON:  What is the further application? 
21.	CLAIMANT:  For this to take it to this stage.  I have a letter.
22.	LORD JUSTICE MAURICE KAY:  You got permission from the judge on paper.  You did not have to renew your application for permission.
23.	CLAIMANT:  According to the Administrative Court offices they said I did.  They sent me a notice saying I needed £180 within seven days. 
24.	LORD JUSTICE MAURICE KAY:  So my sum of £498 should be £548, should it, because there is an extra £50? 
25.	CLAIMANT:  Yes. 
26.	LORD JUSTICE MAURICE KAY:  We make an order in your favour for the costs of these proceedings in the High Court.  We make it against the Devon and Cornwall Constabulary in the sum of £548.  Thank you very much.