QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE BARLING
| KAREN MURPHY
|- and -
|MEDIA PROTECTION SERVICES LIMITED
James Mellor QC and Miles Bennett (instructed by Russell-Cooke LLP) for the Respondent
Hearing date: 24 February 2012
Crown Copyright ©
Lord Justice Stanley Burnton:
The parties' contentions
"(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.
(8) . . .
(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."
"2.6 Private prosecutor's costs from central funds
2.6.1 There is no power to order the payment of costs out of central funds of any prosecutor who is a public authority, a person acting on behalf of a public authority, or acting as an official appointed by a public authority as defined in the Act. In the limited number of cases in which a prosecutor's costs may be awarded out of central funds, an application is to be made by the prosecution in each case. An order should be made save where there is good reason for not doing so, for example, where proceedings have been instituted or continued without good cause. This provision applies to proceedings in respect of an indictable offence or proceedings before the High Court in respect of a summary offence."
He submitted that no good reason had been shown for depriving the respondent of an order for the payment of its costs out of central funds.
Issue 1: Civil or Criminal costs?
"We … voice our unease about the bringing of a prosecution under s. 297(1) in circumstances where the establishment of an essential element in the offence, namely "intent to avoid payment of any charge applicable to the reception of the programme", depends upon the compatibility with EC law of an export ban imposed in a licence agreement between two companies who are legally strangers to the purchaser and user of the decoder card in question who is the defendant to the criminal charge. Our unease at this use of s. 297(1) exists notwithstanding the additional requirement of dishonesty, and regardless of whether the export restriction and resultant absolute territorial protection are ultimately held to be enforceable. It seems to us unlikely that the legislature would have envisaged that the applicability of the avoided charge to the programme received by a defendant would be dependent upon something so remote from that defendant's own knowledge."
This unease was particularly relevant in connection with the present prosecution, in which the appellant's case was always that she relied on the legal advice given to her by her solicitor. The appropriate procedure to challenge that advice was a claim in the civil courts.
Issue 2: appellant's entitlement to costs?
i) In the magistrates' court: 75 per cent of her costs.
ii) In the Crown Court, 75 per cent of her costs.
iii) In the Divisional Court, all her costs, including the costs of the reference to the ECJ.
These costs are to go to detailed assessment, in default of agreement, on the standard basis. We see no reason why the premiums payable for after the event insurance should not be recoverable in principle, but whether and to what extent they are will be a matter for the Costs Judge.
Issue 3: respondent's costs?
Issue 4: interim payment on account of costs?