England and Wales High Court (Administrative Court) Decisions

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

		Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		12th January 2010

Mr Justice Foskett:

1. This is a renewed application for permission to apply for judicial review, permission having been refused on the papers by Blake J. The claimant is, according to a letter which he sent to the court recently, a registered disabled person, and despite attempting to make arrangements to be present today has been unable to achieve this. He has asked that the matter be dealt with on the basis of the submitted material and documentation. I have considered in the circumstances whether it is satisfactory to deal with the matter in his absence. One of the problems, I suspect, in the background of this case is that he has not played an active part in some of the applications made previously. But it seems to me that I am in a position to at least make a decision on the merits of the application without his presence. So I am going to proceed as he invites me to do.
2. The claimant is a person of previous good character, who had the misfortune to be arrested on 18 November 2008 in relation to an alleged offence under section 5 of Public Order Act. He vehemently denied any wrongdoing, and indeed by a letter dated 17 December 2008, and received by solicitors then instructed by the claimant on 19 December 2008, the Crown Prosecution Service confirmed that it had sent a notice to the South Tyneside Magistrates' Court where the proceedings were pending, discontinuing those proceedings. The reason given was that there was insufficient evidence to provide a realistic prospect of conviction. The proceedings were, indeed, discontinued formally subsequently, and the claimant sought a defence costs order under part 2 of the Prosecution of Offences Act 1985, effectively seeking his costs from central funds. The letter from the Crown Prosecution Service to which I have referred drew attention to the broad entitlement to seek a costs order in the circumstances.
3. The application process for those costs have a somewhat chequered history, but in a nutshell the claimant gave notice to the Magistrates' Court by a letter dated 26 January 2009, and the formal claim for those costs was lodged on 9 February 2009. In due course, on 4 June 2009 the matter came before District Judge Elsey, who rejected the claim. The claimant had been advised, perfectly properly, that the matter could be dealt with on the papers; although, as I have already perhaps indicated, with the wisdom of hindsight he may have been better advised to have attended and answered any questions which the district judge may have had of him.
4. As I have said, the district judge rejected the claim. The reasons for the decision were articulated in a letter from the court to the claimant dated 2 July 2009, and it was in these terms:

"Your application, together with all the material supplied in support of your application, was provided to District Judge Elsey on that date. After careful consideration of that material, District Judge Elsey exercised his judicial discretion and dismissed or refused your application."

I have not seen any formal order as such, but at first blush, and reading that letter as it stands, it would seem that there had been a complete rejection of the claimant's application.

5. The claimant then raised various matters in correspondence thereafter, having expressed his disappointment with the decision, and in effect invited the district judge to review that decision. I need not, for this purpose, give a great deal of detail, but in due course, in a letter from the court to the claimant dated 1 September 2009, the court wrote on the district judge's behalf in these terms:

"I write to confirm that I have now had a response from DJ Elsey. He confirms that he fully considered your application, and had full regard to all the correspondence submitted, but did not consider the sums claimed were necessary for the preparation of the defence. If you are dissatisfied with the decision, there is a right of appeal by way of judicial review."

It is, of course, the intimation of that right of appeal which the claimant has sought to exercise.

6. It is right to say that the judicial review claim was somewhat out of date and out of time and, to that extent, the claimant needs permission to extend the time. Again, I can take this relatively shortly. He is a disabled person; he plainly has had some difficulties in putting the material together and there were communications with the court where he seemed to be somewhat uncertain about what he ought to do. Whilst that would not ordinarily necessarily afford grounds for extending time, it seems to me it is only fair in the circumstances that I should do so.
7. Reverting then to the background, the general approach to applications of this nature are dealt with in the well-known Practice Direction of the Lord Chief Justice issued on 18 May 2004, which is in these terms:

"Where an information laid before a Justice of the Peace charging a person with an offence is not proceeded with, a Magistrates' Court inquiring into an indictable offence is examining justices determines not to commit the accused for trial, or a Magistrates' Court dealing summarily with an offence dismisses the information, the court may make a defendant's costs order. An order under Section 16 of the Act may also be made in relation to a breach of bind-over proceedings in the Magistrates' Court or the Crown Court … as is the case with a Crown Court, such an order should normally be made unless there are positive reasons for not doing so, for example where the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was, the defendant can be led to pay his own costs. In the case of a partial acquittal, the court may make a part order …"

8. As will have been apparent from what I have said already, the reasons given by or on behalf of the district judge for the rejection of the claim were very brief. As I have indicated, the first articulation of his reasons would appear to suggest that had rejected the application outright within his discretion. However, putting that together with the second articulation in the letter of 1 September, it appears plain that he did not conclude that the claimant was not entitled to a defendant's costs order in principle, but what he appears to have decided is that the costs claimed were not justified and were not necessary for the preparation of the defence to the allegation made against the claimant. The Acknowledgment of Service filed on behalf of the Magistrates' Court appears to confirm this.
9. Plainly, before I can intervene I have to be satisfied that there are arguable grounds on the usual public law principles to say that the district judge was wrong in taking the view that he did. If I cannot be satisfied of that, there would be little I can do to assist the claimant with what appears to be a grievance which he is continuing to maintain.
10. The district judge appears to have been acting under section 16(7) of the Act, and I shall just refer to that briefly. That provides:

"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."

The reference to subsection 6 is, putting it shortly, that an order for payment of a sum out of central funds can be made in such amount as the court considers reasonably sufficient to compensate the claimant for "any expenses properly incurred by him in the proceedings".

11. If it be the case that the district judge was indeed acting under section 16(7), it seems to me that the order that ought to have been made was an order for defendant's costs, but albeit assessed, on the district judge's approach, at nil for the reasons that he gave, which would appear to be that he thought that there was no actual entitlement to any sums on the part of the claimant because they were not attributable to the preparation of his defence.
12. Blake J, when the matters came before him on the papers, said that the claimant had not attended the hearing of the application for the defendant's costs order on 4 June because the claimant had considered that the documents he had submitted were sufficient to substantiate the claim, and he said that the district judge was entitled to conclude that the documents submitted were not sufficient to do this. What Blake J went on to say to say is this:

"The documents show (a) claims for costs incurred before you were charged on 18 November, and therefore unlikely to relate to your defence, (b) claims for work done by your solicitors after 17 December, when you were granted a legal representation order that is unlikely to have been necessarily incurred in respect of your defence, (c) claims for work done after 17 December when the prosecution notified you the proceedings were being discontinued, and (d) the claims were not supported by a bill from solicitors or any particular breakdown of the content of the claim and the nature of the correspondence."

I respectfully agree with that analysis of the material that was put before the district judge, save perhaps to this extent: it does not appear to address the position of any costs incurred by the claimant between the date of his arrest and the date when he received notice of the discontinuance of the proceedings. That appears to have been approximately a period of a month between 18 November 2008 and 19 December 2008.

13. It seems to me, doing the best I can on the material that I have before me, that the claimant would have been entitled, if he could demonstrate that costs were properly incurred by him during that period, to an order in his favour. I would respectfully agree that anything before the date of his arrest and anything after the date of the legal representation order could not be the subject of such an order. Again, on the material before me, I cannot see that the district judge specifically addressed this particular period. It is a harsh conclusion to reach, because maybe the material put before him was inadequate to demonstrate precisely how the costs were incurred during that period of time. But if it be the case that the district judge did not address that specific period, then it seems to me that it would have been arguably wrong, and indeed definitely wrong, for him not to have considered whether costs were properly incurred during that time. If he had been in any doubt about it, then the matter could easily have been put over, with an invitation to the claimant to indicate precisely what costs were incurred during that period.
14. So since I am not satisfied that that issue was specifically addressed, the course that I ought perhaps naturally to follow is simply to grant permission to apply for judicial review in relation to that particular period and let the matter proceed in the normal way. However, the Magistrates' Court has indicated that it wishes to play no further part in these proceedings and it seems quite plain from the letter that I have already alluded to from the claimant that he is going to find it difficult to participate in any further proceedings.
15. I think that I had better take, therefore, an unusual course, which is designed to bring an end to this matter. What I will do is grant the claimant permission to apply for judicial review in relation to his costs for the period that I have already identified, namely that of 18 November 2008 to 19 December 2008, treat this as the substantive hearing of the matter, and then proceed to exercise afresh the discretion which was open to the district judge to assess. I propose to make a very broad assessment of what costs were properly incurred during the period that I have identified. The total sum that the claimant has sought is £1,430; but is quite plain, for reasons I have already indicated, that a considerable part of that sum was incurred outside the specific period to which I have referred.
16. Painting therefore with a very broad brush, I propose to conclude that £400 was properly incurred personally by the claimant in the period between his arrest and 19 December 2008. I will set aside the district judge's order. I will grant the claimant a defendant's costs order in the sum of £400. Because I have taken the unusual course that I have, I will grant either party permission to apply in writing within 14 days to make further representations if they wish. I hope, however, that neither party will avail themselves of that opportunity and I hope that this order with then put an end to this rather unfortunate matter.

Order: Application granted. Appeal allowed in Part. Costs order.