England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		21st October 2013

1. MR JUSTICE SUPPERSTONE: Mr Rich submits that the court should not remit the case back to the Magistrates' Court for a re-trial. He refers to six factors in particular in support of the submission that in the circumstances it would be oppressive to remit the case for a re-trial. First, despite being of previous good character, the claimant was sentenced to three months' immediate custody. Understandably, as is noted, she found the experience of prison profoundly shocking to her. Second, she was initially suspended without pay and then sacked from her job as a nurse after 28 years' unblemished service. Third, and there is documentation in support of this, she was vilified in the press and her local community as a result of the conviction. Fourth, it is said that she has been frightened to go out of her house and her whole life in the past ten months has been changed by the conviction. Fifth, her relationship with her family has been put under considerable strain. Sixth, her financial situation has deteriorated significantly.
2. I do not wish to minimise these matters and, as Mr Sandiford observes, it would be difficult not to have sympathy for the claimant. However, the conviction and sentence have been quashed because of the failure to grant the adjournment sought so that expert evidence can be adduced. The outcome of the case does not depend on failing memories. The lapse of time since the offence is one year. In my judgment, the public interest, because of the level of alcohol involved and the level of disqualification that may result, outweighs the personal factors put forward on the claimant's behalf, which in those circumstances do not in my view amount to a re-trial being inappropriate or oppressive.
3. In my judgment, there should now be a re-trial, if the prosecution decide to proceed, at which the claimant will be able to adduce the expert evidence that she was not able to put before the court at the first trial and it will be for the court to determine whether she did commit the offence with which she has been charged or not.
4. MR RICH: My Lord, might I submit that you direct a re-trial in front of a differently constituted bench, if there is to be a re-trial.
5. MR JUSTICE SUPPERSTONE: Mr Sandiford?
6. MR SANDIFORD: I agree. At this stage if your Lordship simply directs the matter be remitted to be listed before the Macclesfield Magistrates' Court before a different bench, and certainly those who instruct me can consider -- it is clearly a different branch from the Crown Prosecution Service, they can decide whether to proceed or not, although frankly I would expect that they would decide to do so. Clearly someone should give that decision consideration.
7. MR JUSTICE SUPPERSTONE: Thank you very much.
8. Mr Rich, I will make a direction in those terms.
9. MR RICH: I am grateful.
10. MR JUSTICE SUPPERSTONE: Are there any other matters?
11. MR RICH: The matter of costs, my Lord. My Lord, costs generally go with the winner in these situations.
12. MR JUSTICE SUPPERSTONE: Who are you asking for costs against?
13. MR RICH: Well, my Lord, initially --
14. MR JUSTICE SUPPERSTONE: It would not normally be against the court, would it?
15. MR RICH: It would not normally be against the court, particularly where they do not appear. It is quite often out of central funds in these kind of cases, although, my Lord, I understand there may be a problem with that with a single-judge court. There seemed some difficulty about whether a single-judge court can award costs out of central funds. The relevant practice direction suggests that the court can do that, it merely says the High Court can order costs out of central funds, but there does seem to have been some doubt about it, and I would not want to mislead my Lord that it is an uncontroversial decision. I do not know if my Lord perhaps knows better than I do about that, but I have not been able to track down a definitive judgment on it or an indication that this has ever been considered at a higher level as a principle.
16. MR JUSTICE SUPPERSTONE: Let me be clear, I am not able to assist you as to whether or not I can make that order, it being a single judge. I had not considered that.
17. MR RICH: In the absence of perhaps being able to be certain that that would be a lawful thing for my Lord to do, it would be my submission that costs should be awarded against the Crown Prosecution Service. Although it is a public body and is publicly funded, Ms Hughes is not publicly funded and she is otherwise likely to be left without any remedy to recover her costs.
18. MR JUSTICE SUPPERSTONE: Do you have a figure or is it costs to be assessed if not agreed?
19. MR RICH: I have a schedule of costs that those instruct me will provide, perhaps I should show it to Mr Sandiford.
20. MR JUSTICE SUPPERSTONE: Yes, please. I think Mr Sandiford would like that.
21. MR SANDIFORD: I would. Would my Lord give me a moment.
22. MR JUSTICE SUPPERSTONE: Of course.
23. MR RICH: If my Lord had any concerns about the issue of the Crown Prosecution Service ever being asked to pay costs, there is an authority called Crown Prosecution Service v Grimes [2003] EWCA Civ 1814. My Lord, I do not suggest that the circumstances are exactly the same, it is merely for the general principle that the CPS can be --
24. MR JUSTICE SUPPERSTONE: How much are you asking for?
25. MR RICH: I have not looked at it before, my Lord --
26. MR SANDIFORD: I would have some submissions based on the principle, my Lord, and indeed on the amount to pay. It may simply be that that is something that will have to be dealt with in due course.
27. MR JUSTICE SUPPERSTONE: Yes. Tell me the sum.
28. MR RICH: The sum is in total, including VAT, £26,983.52.
29. MR JUSTICE SUPPERSTONE: £26,000 --
30. MR RICH: £983.52.
31. MR JUSTICE SUPPERSTONE: Yes. Mr Sandiford may have some observations about the quantum, but you have observations about principle as well?
32. MR SANDIFORD: The principle as well, my Lord, for this reason. The Crown Prosecution Service have come into this case as an interested party.
33. MR JUSTICE SUPPERSTONE: Yes.
34. MR SANDIFORD: This is not a situation where the Crown could have, as it were, conceded the case, that was within the gift of the magistrates. They have made submissions to the court in effect defending their decision and inviting the court to uphold the decision made to refuse the adjournment, and therefore I would submit, first of all, that it would be wrong in principle to make any costs order against the prosecution, but that, secondly, if your Lordship is minded --
35. MR JUSTICE SUPPERSTONE: But the CPS knowing that the court was not attending, which is the usual position, chose to attend to oppose.
36. MR SANDIFORD: Yes, but in circumstances where the court has not simply made submissions about a specialist area or jurisdiction, the court has made submissions effectively defending their decision and inviting the court to uphold that decision, so although the court have not attended, they have, as it were, sought to defend the claim brought against them.
37. The second point I invite your Lordship to consider is this. So far as the claim is concerned, once the magistrate had refused the adjournment, and therefore accepting that it was necessary to bring these proceedings -- again, whether or not the Crown Prosecution Service are joined in -- a substantial amount of the costs incurred would have been incurred in any event, for example in preparing the bundle, which was largely --
38. MR JUSTICE SUPPERSTONE: Why, when permission was granted, could this matter not have been dealt with on the papers thereafter, or some thought have been given to it?
39. MR SANDIFORD: In terms of without today's hearing?
40. MR JUSTICE SUPPERSTONE: Yes.
41. MR SANDIFORD: That may cause me some difficulty in arguing against that, but in terms of the figures advanced, and your Lordship will see --
42. MR JUSTICE SUPPERSTONE: You have only just seen the schedule, I do not expect submissions from you on that.
43. MR SANDIFORD: Well, I am prepared to make these submissions. There seems to be a very large amount of preparation of documents which would have been prepared in any event, even at the permission stage.
44. MR JUSTICE SUPPERSTONE: Well, it may be one could say costs to be assessed if not agreed.
45. MR SANDIFORD: Yes. The two observations I make about those, first of all, there seems to be a very excessive number of hours and, secondly, I notice that there is 63 hours claimed at a rate of thereabouts £180 per hour for preparation of documents. One would have thought that that really is an administrative task that would not incur such a large expense, which is in fact a fee appropriate, on the standard scale of costs, even in this city, equivalent to a partner in a firm or a very experienced solicitor.
46. I also make these observations. So far as today is concerned, the claimant of course has succeeded in having her conviction quashed, but then there is additional expense in terms of preparation of documents for the suggestion that there be no re-trial, on which issue she of course has lost.
47. MR JUSTICE SUPPERSTONE: Yes. That would lead you to submit that a percentage --
48. MR SANDIFORD: Yes. The one issue where perhaps the Crown Prosecution Service have advanced a case which was not really something advanced by the magistrate was the issue of the submission that the expert evidence did not really assist, but then that has only relied upon documents that were served, and were necessarily served, in any event.
49. I come back to the point that, looking at the principles, this is not a case where the Crown Prosecution Service could have compromised the case, it was not within our -- it would have been different, for example, if the magistrates had conceded that this claim should be allowed and the Crown Prosecution Service asked for it to be contested in any event, that is not the position. Unless there is any other issue on which I can assist the court ...
50. MR JUSTICE SUPPERSTONE: Do I understand your submission to be that the CPS is not liable for any costs?
51. MR SANDIFORD: That is my primary submission.
52. MR JUSTICE SUPPERSTONE: Whilst making one or two fair observations.
53. MR SANDIFORD: Yes. I concede that there may be a small element of costs referable to the discrete issue, but, my Lord, if one looks at the -- I can appreciate that the court has limited itself to making a submission, but it is a submission which effectively seeks to uphold the correctness of their decision. It would be different if the court had put in a submission saying "Yes, we accept we got it very wrong, very sorry", then of course they would not be contesting the claim and that would leave me nowhere to go, apart from arguments as to the quantum, but in the circumstances it is not a case where the magistrates have simply sought to assist the court, the magistrates have sought to defend the decision.
54. MR JUSTICE SUPPERSTONE: The reality is, leaving aside for a moment remittal, plainly they lost on that, leave that to one side, but for the CPS indicating they were going to attend and oppose, this would have gone through on the nod after the permission had been granted, because, with the court not attending, whilst we see what they say on paper, this would have been dealt with very speedily.
55. MR SANDIFORD: Yes, I can see that point. So far as the preparation is concerned, I come back to the second point, as it were, which is that a lot of the preparation would have been required to get the case to that point in any event, even if the Crown Prosecution Service had then said that they were not going to contest the matter.
56. MR JUSTICE SUPPERSTONE: What percentage do you say one should deduct for the second issue?
57. MR SANDIFORD: This is in respect of the ...
58. MR JUSTICE SUPPERSTONE: The remittal.
59. MR SANDIFORD: My learned friend has obviously expended time, both in terms of the skeleton argument and again composition of documents, but equally it has to be fairly conceded it is not the major issue in the sense of the preparation, although it is clearly a significant issue.
60. MR JUSTICE SUPPERSTONE: Also, yes, preparation of documents and what the claimant has to say assisted by the solicitors properly in that regard.
61. MR SANDIFORD: Yes, I would submit --
62. MR JUSTICE SUPPERSTONE: Are you willing to say 25 per cent for the second issue, might that be a reasonable figure?
63. MR SANDIFORD: Well, I would certainly not seek to push it any further.
64. MR JUSTICE SUPPERSTONE: You would not push further than that?
65. MR SANDIFORD: No.
66. MR JUSTICE SUPPERSTONE: Again, working backwards in terms of costs, and this has to be very much impressionistic, I well understand -- you will want this schedule back again -- but what sort of figure would you not be pressing against? I am asking these questions because one is encouraged not to have cases go off to be assessed, with more time and expense.
67. MR SANDIFORD: Indeed. My Lord, certainly when the papers reached myself, therefore at the point that the Crown Prosecution Service was being asked to respond to the permission, the trial bundle was largely assembled, indeed I prepared my response from that, which would suggest that much of the work had been done. I can see that there are the costs of today, subject to the 25 per cent reduction. But I would submit that there ought to be a significant discount of the amount because the fact of the matter is that unless the magistrates had conceded the point, which they did not, then there was always going to be, so far as the paper preparation was concerned, a significant element of preparation and costs.
68. MR JUSTICE SUPPERSTONE: £22,000-odd plus VAT, 25 per cent off is £4,000, so one is down to £17,500, plus VAT for the hearing. What sort of sum do you say the CPS may be liable for?
69. MR SANDIFORD: In terms of the hearing -- it is difficult, most of the preparation time there appears to be the preparation of documents, even allowing those discounts. It is a very large figure, I think, 60 hours.
70. MR JUSTICE SUPPERSTONE: 63 hours, £11,000-odd.
71. MR SANDIFORD: Yes.
72. MR JUSTICE SUPPERSTONE: What is that about, Mr Rich, 63 hours preparation of documents?
73. MR RICH: My Lord, I know not. I have only just seen the schedule of costs myself.
74. MR JUSTICE SUPPERSTONE: Yes, but you are making the application.
75. MR RICH: Indeed, my Lord. My Lord, I do have some submissions about it though. My Lord, my submission is that the CPS stands in this case effectively as the defendant, if the defendant, as is usual in these cases, does not attend. In my submission, it is not entirely appropriate to say as regards costs, "Well, some of these costs would have been incurred anyway". Generally speaking, the losing party pays the costs of the winner even if the winner might have incurred some costs had the losing party surrendered immediately. My first submission.
76. My second submission as regard the fours(?) and so on, if I may quote, my Lord, and I apologise for not having copies of this case, which is a case I found very recently of Grimes v Crown Prosecution Service, I did e-mail it to my learned friend last night but I did not have any facilities to copy it. At paragraph 28 Sedley LJ gives a second, I believe it is the second of the judgments. He says, after some preliminaries and specifics of that case, that:

"... even accepting that neither of these things made it unreasonable for the CPS to test the appellant's case at an oral hearing, it seems to me that the CPS must for its part accept that it was no less reasonable for the appellant to stick to her guns. And it was the appellant who, however narrowly, was vindicated."

In this case, of course, in my respectful submission it was not a narrow vindication.

" If therefore this was a case in which both sides were justified in going on, absent a compromise, to an oral hearing, each did so at its own risk as to costs."

My submission based on that is that the fact that it may have been reasonable for the Crown Prosecution Service to take part in this case does not protect them from the consequences of the claimant having taken those costs.

77. MR JUSTICE SUPPERSTONE: Can you give me the reference to CPS v Grimes?
78. MR RICH: It is [2003] EWCA Civ 1814.
79. My Lord, a couple of other points that arise out of the submissions of Mr Sandiford. In my respectful submission, the issue on remedy should not be rated at 25 per cent of the costs by any means.
80. MR JUSTICE SUPPERSTONE: You see, you have put before the court your skeleton, witness statement, documentation, all going -- and no criticism -- to the issue of hardship and oppression and why the case should not be remitted, so a fair bit of work has been done, again it may be perfectly properly done, by those instructing you in relation to that matter. It is difficult to see how one could possibly get to 63 hours of preparation of documents unless a substantial amount of time is in relation to that. Otherwise what is it in relation to?
81. MR RICH: Well, my Lord, aside from the taking of the statement from Ms Hughes and the generating of that material --
82. MR JUSTICE SUPPERSTONE: None of that was necessary for this judicial review, the judicial review was on the basis of the position as it was before the court at the time.
83. MR RICH: My Lord, I am being paid on a fixed fee and therefore the extra work as regards my fee will not have made any difference.
84. MR JUSTICE SUPPERSTONE: None of the observations I make relate to your fee.
85. MR RICH: My Lord, in my respectful submission the bulk of the work was to do with the judicial review itself. I accept of course that my Lord has ruled against the claimant as regards the remedy, which perhaps would justifiably be a small part of that, but that was not the bulk of the costs involved.
86. MR JUSTICE SUPPERSTONE: Yes.
87. MR SANDIFORD: My Lord, I do not want to engage too much in a game of judicial tennis, but so far as the case of Grimes is concerned, that was a case where the Crown Prosecution Service came under very heavy criticism for the very decision to even bring the case against the claimant, as the person was by the time it came to court. In particular, it related to a claimant who had learning difficulties and who there was medical evidence which would have supported a decision of non-prosecution, and that was the basis of the court's decision in Grimes. In the case of Farmer v Redbridge Magistrates, which considered that, Openshaw J referred to the fact that the court should not make a costs order against the Crown Prosecution Service just because the Crown Prosecution Service is the body that prosecutes cases as it is bound to do. My learned friend says "Well, the Crown Prosecution Service makes itself a defendant". Well, no, we are the interested party. The defendant was the court. The point is this, that whilst it may have gone on to come to this point, the point the Crown Prosecution Service make is that even if the Crown Prosecution Service had said "We are not going to become involved", there would have been a significant degree of costs, looking at that schedule, which would have been incurred simply to bring the application against the Magistrates' Court, and that cannot be ignored, as it were, that then pushed over onto the Crown Prosecution Service.
88. MR JUSTICE SUPPERSTONE: You can rest assured, Mr Sandiford, that I am not making a costs order in a figure that is the same or similar to what is requested.
89. MR SANDIFORD: Yes.
90. MR JUSTICE SUPPERSTONE: There is a point of principle that I recognise that is engaged here in relation to the CPS. I think this is really directed at you, Mr Sandiford. It seems to me that there are one or two ways I could proceed. One, I can proceed on the basis to spell out to you that to a certain extent the CPS effectively stands as the defendant, the defendant does not attend and, but for your attendance as I have indicated, the matter could have gone through more speedily and less expense. One deducts a certain percentage, that I put at 25 per cent, it may be that figure or slightly less in relation to the second issue and you leave it to me to take a sensible view, I hope, on the figures and I make a costs order this afternoon. Alternatively, I am prepared to adjourn costs to be determined on the papers with written submissions from the two of you within seven days.
91. MR SANDIFORD: Certainly for my part, although I have no-one to take instructions from --
92. MR JUSTICE SUPPERSTONE: No, well, you can decide yourself.
93. MR SANDIFORD: I would prefer for your Lordship to make a decision this afternoon. It seems to me a more sensible and less costly approach.
94. MR JUSTICE SUPPERSTONE: Mr Rich, anything you want to say?
95. MR RICH: No, my Lord. I would invite you to allow those submissions. It is a very serious issue for Ms Hughes to recover her substantial costs of this case and I would invite you --
96. MR JUSTICE SUPPERSTONE: Question as to whether all the costs were properly incurred.
97. MR RICH: Indeed, and if an assessment of costs were to be done that issue would of course be addressed in the assessment.
98. MR JUSTICE SUPPERSTONE: Of course it would.
99. MR RICH: So I invite you, my Lord, to allow an assessment of costs in this case.
100. MR JUSTICE SUPPERSTONE: Thank you very much.
101. Mr Rich applies for costs at the conclusion of the case. I have been handed a schedule seeking costs in the sum of £22,522.10 plus VAT, a grand total of £26,983.22. I have heard submissions from Mr Sandiford and Mr Rich and I have been invited by both counsel to assess costs on the basis that I have indicated that I will do so.
102. Mr Sandiford takes the point that the CPS is an interested party and is not the defendant, the defendant on paper opposed this application and therefore the defendant should be treated as the defendant and the costs incurred as a result of the involvement of the interested party, most certainly not the whole of the costs, and could only be at most part of the costs that relate to the single point that the CPS took, in addition to the point that had been taken by the court that invited this court to uphold the decision that was made below. The additional point is in relation to the expert report making no difference to the outcome in any event.
103. The other matter of course to have regard to is that whilst the claimant succeeded on the claim, there was an application for me to make an order that the matter should not be remitted to the Magistrates' Court on the basis of opposition and that application did not succeed.
104. It will be appreciated that in assessing costs at this stage to a certain extent I have to look at matters in the round. Starting first with the two issues that are before the court, I have regard to the fact that on the second issue, whilst it was the shorter of the two issues, nevertheless there was a separate skeleton argument from Mr Rich, there was documentation that was put before the court, properly if I may say so, in support of the submission made on behalf of the claimant that the case should not be remitted to the Magistrates' Court. In my view, costs in relation to the second issue are 20 per cent of the total costs and therefore I am concerned with 80 per cent of the costs that the claimant is entitled to. I am told she is not publicly funded and I have heard about her financial position.
105. In my view, first of all she is entitled to the costs. Secondly, it does seem to me that the CPS are effectively the defendant at this hearing before this court because, whilst they are the interested party, if they had not opposed the application then, permission having been granted, this matter would have been dealt with much more simply and much more speedily and at less expense.
106. Having said that, looking at the statement of costs and the figures that are there referred to, Mr Rich has only been handed it, as I understand it, this document a few moments ago and is not able to make any detailed submissions with regard to the items, and I make to criticism of him for that. Mr Sandiford rightly raises the question not only as to the size of the grand total, but also in relation to one item in particular, and that is the preparation of documents, 63 hours at £180 an hour, amounting to £11,484, which is half the total. No explanation has been given to me, certainly none in any detail, as to why that number of hours was spent on this case, which of course is concerned with the decision of the Magistrates' Court on the material that was before it at the time the decision was made. I do not wish to cast any aspersion on the figures that are before me, and it may be there is an explanation, it may be that a number of hours were spent on the second matter which relates to the referral to the Magistrates' Court. As I have indicated, there are a number of documents, there is a witness statement of the claimant and there is Mr Rich's skeleton argument that all go to that question. However, it seems to me that, doing the best that I can on the figures before me, the claimant is entitled to 50 per cent of the sums claimed, that is the sum that is claimed in relation to the first two matters; so if one deducts 20 per cent from £22,500, in round figures one is left with £18,000, take 50 per cent of that, that reduces the figure to £9,000, therefore £9,000 plus VAT is the sum that I will award by way of costs.
107. If either counsel have any observation to make on the maths, then do make it.
108. MR RICH: My Lord, it is merely said that the reason that the preparation perhaps is high is that it involved a lot of contact with the court to obtain documents from the court which had to be done at the instigation of the solicitors, it was not, as it were, that the material was already --
109. MR JUSTICE SUPPERSTONE: I understand, and I understand why your instructing solicitor should want you to mention that.
110. MR RICH: I am grateful, my Lord.
111. MR JUSTICE SUPPERSTONE: Thank you both for your assistance.