England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
ON APPEAL BY WAY OF CASE STATED FROM
WARWICKSHIRE MAGISTRATES' COURT

		Birmingham Civil Justice Centre Priory Courts, 33 Bull Street Birmingham
		10/12/2014

Mr Justice Hickinbottom:

Introduction

1. This is an appeal by way of case stated from a decision of the Warwickshire Magistrates' Court sitting at Leamington Spa on 3 September 2013 to order the Appellant Chief Constable to pay the Respondent £5,000 costs in relation to a civil complaint under section 2 of the Dogs Act 1871 ("the 1871 Act").
2. Section 2 of the 1871 Act provides:

"Any court of summary jurisdiction may take cognizance of a complaint that a dog is dangerous, and not kept under proper control, and if it appears to the court having cognizance of such complaint that such dog is dangerous, the court may make an order in a summary way directing the dog to be kept by the owner under proper control or destroyed."

The procedure under this provision is therefore civil, and commenced by way of a complaint to the magistrates' court.

3. John Stark is a farmer who lives at Hercules Farm, Claverdon, Warwickshire. On 7 September 2012, two dogs attacked his sheep, causing injuries to three of them. He saw part of the incident, and described the two dogs as black or chocolate-coloured Labradors, one of which had some sort of pendant hanging from its neck. The dogs, he said, ran off towards Yardingdale. He reported the matter to the Warwickshire Police, saying that he knew of similar incidents in the village and feared they would recur. He said he "would like the support from the police".
4. The Respondent lives in Yardingdale Common. She owns two Labdrador dogs, a black male and a chocolate-coloured female.
5. On 21 November 2012, the Warwickshire Magistrates' Court sent a summons to the Respondent, in the following terms:

"Chief Constable A Parker Warwickshire Police of The Police Station, Hamilton Terrace, Leamington Spa, Warwickshire says that you committed the offences shown.

The court will hear the case on 19 December 2012 at 10am at Warwickshire Magistrates' Court…

Offences

Date of Application/Complaint 20/11/2012

…

On 08/09/12 at Claverdon in the county of Warwick being the owner of a dog which was dangerous and was not kept under proper control, complaint is laid by Mr John Stark who applies for an order that the dog is to be kept under proper control or destroyed. Pursuant to section 2 of the Dogs Act 1871…".

I am told that this is the only documentary evidence of the complaint.

6. By section 3(2)(g) of the Prosecution of Offenders Act 1985, in addition to other specified obligations, it is the duty of the Director of Public Prosecutions ("the DPP") "to discharge such other functions as may from time to time be assigned to him by the Attorney General…". Pursuant to that paragraph, on 5 July 1996, the Attorney General assigned to the DPP "the conduct of proceedings under section 2 of the Dogs Act 1871 instituted on behalf of the police force (whether by a member of that force or by any other person)". The conduct of the proceedings instituted against the Respondent was consequently taken over by the DPP through the Crown Prosecution Service ("the CPS").
7. At the hearing on 19 December 2012, the Appellant's evidence was disclosed to the Respondent, and the court gave case management directions for the hearing of the complaint including directions for the service of any further lay and expert evidence. A trial bundle was to be lodged by 27 March, and the trial fixed to take place on 5 April 2013 with a time estimate of one and a half days.
8. In accordance with thosee directions, on 23 January 2013, the Respondent served nine witness statements. Her own statement, and that of her husband, accepted that the two dogs had got out just before 9pm on 7 September 2012, and were recaptured at about 10.30pm – but they were not anxious or frenzied, and there was no blood or fleece on the dogs suggesting that they had attacked sheep. Following the allegations, the dogs had been tested with sheep in what amounted to controlled conditions, and they displayed no aggression towards the sheep. The covering letter sent with the statements invited the withdrawal of the claim; and said that, if the CPS chose to proceed and the case ultimately failed, then the Respondent would seek costs. The Respondent served an expert report on 8 February 2013, which concluded that neither dog would attack sheep or other animals.
9. In February and March 2013, the Respondent's solicitors telephoned the CPS, encouraging them to review the evidence that had been served. On 19 March, they were told that the CPS had not yet looked at the file. They were again pressed to do so, because of the imminent date for lodging the trial bundle, on 27 March. On 25 March, the Respondent's solicitors rang again, and were told that the CPS case handler would be in touch.
10. That day (25 March), a Senior Crown Prosecutor at the CPS wrote to the Respondent's solicitors. The letter was headed, "Notice of Discontinuance", and had the details of the Respondent and the hearing date and venue. It continued:

"I am writing to inform you that I have today sent a notice to the Clerk to the Justices, under section 23 of the Prosecution of Offences Act 1985, discontinuing the following charges against you/your client:

Failure to keep dog under proper control 7th September 2012

The effect of this notice is that you/your client no longer need to attend court in respect of these charges and that any bail conditions imposed in relation to them cease to apply.

The decision to discontinue these charges has been taken because there is not enough evidence to provide a realistic prospect of conviction.

This decision has been taken on the evidence and information provided to the Crown Prosecution Service as at the date of this letter. If more significant evidence and/or information is discovered at a later date the decision to discontinue may be reconsidered.

In rare cases a prosecution will start again where a new look at the decision shows that it was wrong and, in order to maintain confidence in the criminal justice system, a prosecution should be brought despite the earlier decision.

You have/your client has the right to require the discontinued proceedings to be revived. If you wish to exercise this right, you must give written notice to the Clerk to the Justices at the above magistrates' court as soon as possible (and in any event within 35 days).

Should you/your client wish to apply for any costs incurred in respect of these proceedings, you may make a written request to the Clerk to the Justices. It is not necessary to apply for the proceedings to be continued in order to apply for your costs.

CAUTION: this notice only applies to the charges specified in it, and does not have any effect in relation to any others that may be pending or other proceedings against you. If you are legally represented you should contact your solicitor immediately."

11. The Respondent duly made an application for costs.
12. The relevant statutory provisions for costs orders in the magistrates' court in civil proceedings are as follows. Section 64 of the Magistrates' Courts Act 1980 ("the 1980 Act"), so far as relevant to this appeal, provides:

"(1) On the hearing of a complaint, a magistrates' court shall have power in its discretion to make such an order as to costs –

(a) on making the order for which the complaint is made, to be paid by the defendant to the complainant;

(b) on dismissing the complaint, to be paid by the complainant to the defendant

as it thinks just and reasonable.

(2) The amount of any sum ordered to be paid under subsection (1) above shall be specified in the order, or order of dismissal, as the case may be.

(3) … [C]osts be ordered to be paid under this section shall be enforceable as a civil debt."

13. Section 52 of the Courts Act 1971 ("the 1971 Act"), under the heading "Award of costs where information or complaint is not proceeded with", provides:

"(3) Where… a complaint is made to a justice of the peace acting in any local justice area but the complaint is not proceeded with, a magistrates' court acting in that area may make such order as to costs to be paid…, by the complainant to the defendant as it thinks just and reasonable.

(4) An order under subsection (3) above shall specify the amount of the costs ordered to be paid.

(5) …. [F]or the purposes of enforcement an order under subsection (3) above made in relation to a complaint which is not proceeded with shall be treated as if it were made under section 64 of the Magistrates' Courts Act 1980…".

14. Thus it can be seen that section 64 of the 1980 Act and section 52 of the 1971 Act are formulated in similar terms – in each case, the court having a discretion to award costs against the complainant "as it thinks just and reasonable" – but the former applies where a claim is contested and fails, whereas the latter applies where a claim is made and "not proceeded with". Together, as Mr Saunders accepted, they provide a comprehensive scheme coving all circumstances in which a case is not successful and, whilst having different triggers, applying the same criteria for exercising discretion as to costs.
15. The Respondent claimed £14,958.82 from the Applicant, on the basis that he brought the complaint, which should never have been brought and which was prosecuted in an unreasonable manner, the skeleton argument prepared for the costs hearing setting out the history. The costs hearing was fixed for 7 August 2013 but, the day before, the CPS indicated that they were not in a position to proceed, because they had not been informed of the nature of the hearing. The hearing was thus used to give directions, and otherwise adjourned to 3 September 2013, when it was heard.
16. The magistrates found that the complaint was originally laid by Mr Stark, but was taken over by the Appellant; these were civil proceedings; the complaint had not been dismissed, but had not been proceeded with; and so the court had power to order "such costs as are just and reasonable" under section 52 of the 1971 Act. The Respondent and Appellant lodges skeleton arguments and were represented at the hearing. The CPS were present but played no part in the hearing.
17. The magistrates noted that the wording of section 52 of the 1971 Act was materially identical to that in section 64 of the 1980 Act, and so, they considered, the case law on section 64 to which they had been referred was relevant. The case stated then indicates how the magistrates proceeded (references to "the defendant" being, of course, to the Respondent in this appeal)

"We considered the case law put forward by Mr Goucher we were clear that there was no presumption that costs would be awarded against the police in these civil proceedings. Following City of Bradford Metropolitan District Council v Booth [2000] COD 338 and R (on the application of Perinpanathan) v City of Westminster and another [2010] EWCA Civ 40 we weighed the important consideration of encouraging a public authority to make a stand by honest, reasonable and apparently sound administrative decisions against the circumstances in which the defendant incurred the costs of defending against the destruction of her dog.

When the police took over the prosecution there was no evidence connecting the complainant to the dogs. The Crown Prosecution Service as the agents of the police were aware that the defendant was contesting the case and were intending to call 6 or 7 witnesses including possible expert evidence. The case was pursued by the prosecution when they had no evidence that the dogs had any connection with the defendant. One and half days of court time was set aside and the defence prepared their case. It was more than three months before the prosecution communicated their decision not to pursue this matter.

We noted that the case law makes it clear that the court must consider what is "just and reasonable" in relation to the decision whether to award costs and in relation to the amount of costs to be awarded. The [CPS] as agents of the police were aware of the limitations of their case and the extent of the case the defence were preparing but did not indicate that they were not proceeding with the matter until after 3 months had passed. Looking at the test in the case law we were not convinced that the decision by Warwickshire Police to take over this prosecution was reasonable and apparently sound because there was never any evidence giving a realistic prospect of success and having taken over the case no further evidence was served. There has never been any evidence linking the defendant to the dog that killed the sheep."

18. With regard to amount, they said:

"The application before us was for costs of £14,958.82. In relation to the amount of costs we considered the fact that we were dealing with a matter which can only be dealt with in the magistrates' court and that we were looking at the costs incurred for the trial which the court listed on the basis of 6 or 7 witnesses including an expert.

At 31st January 2013 Shakespeares solicitors sent a bill to Miss Young for preparation of the case in the sum of £6,106 that included over 35 hours work on the case. We noted that this included two witness statements that were disclosed at the time of the case management hearing. We note that there was more work and a further bill in February 2013.

We are not dealing with criminal proceedings so the procedures for having costs assessed by the National Taxing Team do not apply. We decided that it was just and reasonable to limit the costs to £5,000."

19. The Appellant sought to appeal by way of case stated, on three grounds:

"1. Section 52 of the Courts Act 1971 applies, together with Manchester City Council v Manchester Magistrates' Court [2009] EWHC 1866 (Admin), Perinpanathan [2010] EWCA Civ 40 and Booth (2000) 164 JP 485 apply by analogy through s64 of the Magistrates' Courts Act 1980. The starting point is that no costs are ordered. Only in certain circumstances is it appropriate to order costs against a prosecutor. It is not appropriate to order costs against a prosecutor who properly exercises a discretion to withdraw a complaint.

2. The quantum of £5000 was not calculated with any reference to hours worked, or hourly rate. When considering costs orders of such magnitude, an appropriate order is for the costs to be agreed, or assessed.

3. The decision to withdraw the complaint was made by the [CPS]. It is unfair to award costs against Warwickshire Police."

20. The magistrates duly stated a case, and pose the following three questions for this court:

"1. Was our Legal Adviser correct to advise us to consider the case law in relation to section 64 Magistrates' Courts Act 1980?

2. Were we entitled to reach the conclusion that the evidence available to them was such that it was not reasonable for Warwickshire Police to take over the prosecution?

3. Was it just and reasonable for us to limit the costs to £5000?"

21. I shall of course return to those questions in due course; but before me Mr Saunders for the Appellant somewhat refocused the appeal. He relied upon the following three grounds:

Ground 1: Section 52 of the 1971 Act does not apply in this case, as it only applies where there has been a discontinuance of proceedings. There has been – and could have been – no discontinuance in this case.

Ground 2: In any event, under section 52, costs can only be ordered against the complainant. In this case, the complainant was Mr Stark, not the Appellant.

Ground 3: In any event, even if the court had the power to make a costs order against the Appellant, it was not "just and reasonable" to make an award of costs against the Appellant in this case.

22. Ground 3 is the only ground truly reflective of the Appellant's Notice; but Mr Smith was prepared and able to make substantive submissions on all grounds. I will deal with them in turn.

Ground 1

23. Mr Saunders submitted that section 52 of the 1971 Act does not apply in this case, as it only applies where there has been a discontinuance of proceedings. Although the CPS purported to discontinue the proceedings against the Respondent, the DPP and accordingly the CPS do not have power to discontinue proceedings under section 2 of the 1871 Act. The only power in the DPP to discontinue proceedings is under section 23 of the Prosecution of Offenders Act 1985 – to which reference was made in the CPS letter purporting to discontinue against the Respondent – which only applies where "the [DPP] has the conduct of proceedings for an offence…", i.e. to criminal proceedings. It does not apply to civil proceedings such as those under section 2 of the 1871 Act.
24. However, section 52 of the 1971 Act does not require a formal discontinuance of proceedings; it applies where "a complaint is made… but the complaint is not proceeded with…" (emphasis added). In this case, it seems to me that that is what, in substance, happened. The CPS, wrongly, indicated in its letter of 25 March 2103 that the proceedings were criminal (which they were not) and were being discontinued (which they could not be). But the letter, properly construed, clearly indicated that the claim against the Respondent was not being proceeded with. And, indeed, it was not proceeded with.
25. Even if Mr Saunders were right on the question of construction, and the magistrates erred in not formally dismissing the claim:

i) in the circumstances, had they been requested to do so or otherwise brought their minds to bear on the matter, they would have been bound to have dismissed the claim, given the view of the CPS (which they clearly shared) that there was no evidence (even taken at its highest) sufficient to prove the complaint; and

ii) had the claim been dismissed, section 64 of the 1980 Act would have been available, under which the magistrates would have had the same powers as under section 52 of the 1971 Act, exercisable on the basis of the same criteria, which they would in this case undoubtedly have exercised in the same way.

The submission of Mr Saunders thus seeks to promote form over substance. The Appellant has not suffered any unfairness or prejudice.

26. For those reasons, I consider this ground has no force.

Ground 2

27. Mr Saunders submitted that, under section 52 of the 1971 Act, costs can only be ordered against the complainant. In this case, the complainant was Mr Stark, not the Appellant.
28. But again, I am unpersuaded. As with many – indeed, most if not all – documents in this case, the summons is not in perfect form. For example, it says that the relevant incident was on 8 December 2012, and it was on 7 December. It refers to a dog, whereas on Mr Stark's version of events, there were two dogs. Furthermore, although in the text of the offence it is said that the complaint was laid by Mr Stark, the summons itself says that the Appellant is the complainant in the sense that it is recorded that it is the Appellant who says that the Respondent committed that offence.
29. As Lord Parker CJ said in Smith v Baker [1960] 3 All ER 653, in a judgment of almost brutal brevity with which Ashworth and Elwes JJ agreed:

"For my part, I feel that this case is too plain for argument. "Complaint" in section 2 of the Dogs Act, 1871, is unqualified as to whom the complainant shall be. It does not say 'by a person aggrieved'. It is intended to be absolutely at large. Further, one realises the complete absurdity of the argument when one finds that, under the original statute, it is the police who are really charged in the public interest with the duty of taking possession, amongst other things, of dogs that they find to be savage and dangerous. To take an illustration, supposing a police officer in the exercise of his powers under section 1 of the Act of 1871 (since repealed) were to take into custody a stray dog that was highly dangerous and, after two or three days, the owner came and tendered his money for his keep and took him away, the police officer could do nothing but would have to wait till somebody was bitten by the dog or aggrieved by the dog before a complaint could be laid. The truth of the matter is that the police in the majority of cases are the proper people to lay the complaint. It is a complaint brought in the public interest and for the protection of the public, and in coming to that conclusion I am happy to find that it is in accordance with the view taken in Scotland. We have been referred in particular to Walker v Brander, from which case it appears that in Scotland the procurator-fiscal is the proper person to lay such a complaint. I have no doubt in this case, and I would dismiss the appeal."

30. In this case, when the documents are looked at fairly and as a whole, the substance of the matter was that Mr Stark, as the person aggrieved, referred the matter to the police hoping that some action would be taken; and the police, in accordance with their public duty, made and pursued the complaint. Indeed, that is what the summons says in terms, the reference to Mr Stark having laid the complaint being only found in the particulars of the so-called "offence". Indeed, that the police commenced the proceedings in the public interest was an inherent and essential part of Mr Saunders' submission in relation to Ground 3, to which I shall shortly come.
31. Furthermore, the Attorney General's assignment of section 2 cases to the DPP also stresses that the cases that are assigned are those which are brought "on behalf of the police". Mr Saunders accepts, as he must, that the DPP took over conduct of the matter under that document; which he could only do if the claim had been brought by or on behalf of the Appellant Chief Constable. Mr Smith compellingly submitted that that point alone would be conclusive on this ground.
32. For those reasons, in my view, there is no force in this ground either. It is, with respect to Mr Saunders, unsurprising that this point was never taken before the magistrates, where it was accepted that the Appellant had made the complaint.

Ground 3

33. That leaves ground 3, namely that, in all the circumstances, the magistrates were in law wrong to conclude that it was "just and reasonable" to make a costs award against the Appellant. This is essentially the ground relied upon in the Appellant's Notice.
34. In support, Mr Saunders relied upon the principles set out by Lord Bingham CJ in Bradford Metropolitan District Council v Booth (2000) 164 JP 485. In that case, magistrates had awarded costs against a local authority following a successful challenge to a vehicle licensing decision of that authority. The case was therefore under section 64 of the 1980 Act, not section 52 of the 1971 Act; but, as I have indicated, the formulation of those sections – and the criteria upon which the discretion in the magistrates is to be exercised – is essentially the same; and it is rightly common ground before me that the principles set out by Lord Bingham are equally applicable to section 52.
35. The principles are as follows:

"1. Section 64(1) confers a discretion upon a magistrates' court to make such order as to costs as it thinks just and reasonable. That provision applies both to the quantum of the costs (if any) to be paid, but also as to the party (if any) which should pay them.

2. What the court will think just and reasonable will depend on all the relevant facts and circumstances of the case before the court. The court may think it just and reasonable that costs should follow the event, but need not think so in all cases covered by the subsection.

3. Where a complainant has successfully challenged before justices an administrative decision made by a police or regulatory authority acting honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both (i) the financial prejudice to the particular complainant in the particular circumstances if an order for costs is not made in his favour; and (ii) the need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged."

36. The continued relevance of those principles was recently confirmed by the Court of Appeal in R (Perinpanathan) v City of Westminster Magistrates' Court [2010] EWCA Civ 40, a case in which the claimant sought to recover her costs of successfully defending proceedings brought by the Metropolitan Police Commissioner for the confiscation of £150,000 under section 298 of the Proceeds of Crime Act 2002 ("POCA"). Lord Neuberger MR (as he then was) referred to Lord Bingham's principles, and continued (at [76]-[77]):

"76. The principles appear to me to be well founded, as one would expect bearing in mind their source. In a case where regulatory or disciplinary bodies, or the police, carrying out regulatory functions, have acted reasonably in opposing the grant of relief, or in pursuing a claim, it seems appropriate that there should not be a presumption that they should pay the other party's costs. It is not as if the other party would have no right to recover costs in such a case: as Lord Bingham made clear, one must take into account 'all the relevant facts and circumstances of the case', and in particular 'the financial prejudice to the particular complainant if the order for costs is not made in his favour. However, it has not been suggested by either party to this appeal that weight should be given in this case to any points other than those I have discussed. In order words, if, as I consider to be the case, Lord Bingham's principles apply in this case, it is not suggested on behalf of the Appellant that the magistrates or the Divisional Court reached the wrong conclusion.

77. The effect of our decision is that a person in the position of the Appellant, who has done nothing wrong, may normally not be able to recover the costs of vindicating her rights against the police in proceedings under section 298 of POCA, where the police have behaved reasonably. In my view, this means that magistrates should exercise particular care when considering whether the police have acted reasonably in a case where there is an application for costs against them under section 64. It would be wrong to invoke the wisdom of hindsight or to set too exacting a standard, but, particularly given the understandable resentment felt by a person in the position of the Appellant if no order for costs is made, and the general standards of behaviour that can properly be expected from the police, it must be right to scrutinise their behaviour in relation to the seizure, the detention, and the confiscation proceedings, with some care when deciding whether they acted reasonably and properly."

37. It is important to note that in that case, as in this, the police were carrying out the administrative functions of a regulator; and the court confirmed and emphasised that, when such regulatory functions were being exercised, a costs order would generally only be made if the regulator's conduct justified it, e.g. if the functions were exercised in bad faith or unreasonably (see also Perinpanathan at [40(6)] per Stanley Burnton LJ).
38. It is, again rightly, common ground that the Booth principles apply in this case, because the police were acting in the public interest, as a regulator.
39. Indeed, Mr Saunders stressed that the proceedings were brought by the police against the Respondent for the protection of the public and otherwise in the public interest. In bringing and maintaining the proceedings as they did, the police acted honestly and reasonably, and properly investigated the matter and brought the claim on reasonably sound grounds. As Booth and Perinpanathan make clear, public authorities should be encouraged to make and stand by honest, reasonable and apparently sound administrative decisions without fear of exposure to undue financial prejudice. Such costs awards as this would, he maintained, discourage the police from doing their proper public duty.
40. The principles relied upon by Mr Saunders are not in doubt; nut, in essence, they mean that, if a public body in the exercise of regulatory functions brings a claim in the magistrates court, if the claim fails, there is not the usual presumption in civil proceedings that the unsuccessful party will pay the successful party's costs. Such an order will not usually be made unless the authority has acted dishonestly or unreasonably. There is no suggestion here that the police acted dishonestly; but the magistrates made clear findings that the claim was unreasonably brought and pursued. They clearly had the principles to which I have referred – including the proposition that they could not make an order for costs against the police unless they had acted unreasonably – well in mind. In the case stated, the magistrates referred to the relevant cases, and the expressly :

"… weighed the important consideration of encouraging a public authority to make a stand by honest, reasonable and apparently sound administrative decisions against the circumstances in which the defendant incurred the costs of defending against the destruction of her dog.

…

The case was pursued by the prosecution when they had no evidence that the dogs had any connection with the [Respondent]…. Looking at the test in the case law we were not convinced that the decision by [the] police to take over this prosecution was reasonable and apparently sound because there never was any evidence giving a realistic prospect of success and having taken over the case no further evidence was served. There never has been any evidence linking the [Respondent] to the dog that killed the sheep".

41. Mr Smith submitted that the magistrates were correct to treat the CPS as an agent of the police for these purposes. I agree.
42. Until the very late stages of his oral submissions, Mr Saunders did not suggest that the CPS itself could be made liable for costs under section 63 of the 1980 Act or section 52 of the 1971 Act; no claim was made to the magistrates that anyone other than the Appellant was the complainant; and the CPS are not before the court on this appeal, and have therefore not had the opportunity to make submissions on their possible liability. I bear that last point very much in mind.
43. But in any event, the regulating authority here is the police who bring the complaint, although the conduct of any claim brought by the police and on their behalf – and, notably, only by them and on their behalf – may be taken over by the DPP by way of the CPS, as it was in this case. Parliament cannot have intended, uniquely, to deny a defendant the possibility of a costs award simply because the reprehensible conduct had been that of the CPS, in these circumstances. On the true construction of the statutory scheme, the CPS is conducting the claim on behalf of the police. The scheme thus makes the police liable for the conduct of the CPS in dealing with a claim it has commenced, in the sense that, if the CPS act unreasonably, the police cannot deny that they are responsible for that unreasonableness.
44. Mr Saunders suggested that the CPS had completely misunderstood the nature of the proceedings against the Respondent – i.e. civil, and not criminal – and had misunderstood the available material upon which, as a matter of civil evidence, the claim could have been prosecuted. He also accepted that the CPS had delayed a decision as to whether or not to proceed with the claim. But, in my judgment, the statutory scheme made the police, as complainant, liable for that conduct, insofar as it is unreasonable.
45. The scheme necessitates some degree of cooperation and liaison between the police as complainant and the CPS who have conduct of the claim on their behalf which, as I understand it, was sadly lacking in this case – the police only finding out that the claim had not been proceeded with when served with the respondent's costs application. It seems to me that the CPS, as effective agent of the police, ought to have consulted with the police before their decision not to proceed with the claim. I stress that there is of course no evidence that they consulted the aggrieved party Mr Stark either, which may have been courteous if not a legal requirement.
46. Given what they had been told, the findings made by the magistrates, as to whether there was ever sufficient evidence to prove this claim and as to delay, were open to the magistrates to make on what they had before them. They are unassailable in this court; as is their secondary conclusion that it was unreasonable for the police to have taken over and pursued this claim in the absence of any substantial or sufficient evidence that the offending dogs belonged to the Respondent.
47. Even if the magistrates did not err in concluding that an award of costs against the police was, in principle, appropriate, Mr Saunders submitted that they erred in law in awarding £5,000 which was, he contended, "an arbitrary sum". This same argument was made in R (Swale Borough Council) v Boulter [2002] EWHC 2306, in which the claimant authority pursued a claim under section 2 of the 1871 Act to a hearing, at which the dog, an English mastiff called Beasley, was found not to be dangerous. A claim for about £5,000 costs was made by Beasley's owner. The magistrates awarded £2,500 under section 64. Maurice Kay J said (at [24]-[26]):

"24. [Counsel for the appellant] does not suggest that the figure for costs advanced to the justices by the respondent's solicitors was an inflated figure. The submission is that one way or another it was Wednesbury unreasonable to make an order against the appellants in the sum of £2,500, particularly having regard to the appellants' role as a public authority pursuing a case on behalf of the public at large.

25. …

26. I have no doubt that the justices were entitled to find that it was just and reasonable for the appellants to pay a proportion of the respondent's costs incurred in defending an unsubstantiated complaint. What they appear to have done is to have rejected an application for full costs, and made an order in the region of half of the figure that was being advanced. Again, I infer, not on the basis that the figure was an inflated figure, but on the basis that that is what was fair and reasonable in the circumstances. I do not find it possible to say that that decision was Wednesbury reasonable. Moreover, the justices undoubtedly did take into account the appellants; position as a public authority. They expressly said so in the case stated. Accordingly, the answer to the second question posed by the case stated, as with the first question, must be in the respondent's favour. The appeal is therefore dismissed."

48. The challenge to the quantum of the costs ordered in this case similarly fails. Whilst of course not accepting that on an assessment every penny would necessarily have been found to be payable, Mr Saunders does not suggest that the sum claimed in this case is inflated. He submits that it was arbitrary to choose the figure of £5,000. But costs awarded under section 52 of the 1971 Act (or section 64 of the 1980 Act) are not subject to an assessment that would be appropriate if CPR Part 44 or the criminal proceedings assessment procedures applied. Neither does apply. Rather, the magistrates have to take into account all material considerations, and make an assessment as to what figure will be just and reasonable in all the circumstances. The magistrates here did take into account all material circumstances, clearly including the Appellants' role as a public authority with a regulatory function.
49. I simply cannot say that the figure they considered to be just and reasonable was unreasonable in the Wednesbury sense, or otherwise unlawful.

Conclusion and Disposal

50. Thus, I would answer the questions posed by the case stated as follows:

1. Yes: the magistrates' legal adviser was correct to advise them to consider the case law under section 64 of the 1980 Act.

2. Yes: the magistrates were entitled to reach the conclusion that the evidence available to them was such that it was not reasonable for the Appellant to commence or take over the prosecution.

3. Yes: the magistrates were entitled to conclude that it was just and reasonable to order the Appellant to pay the Respondent's costs of the complaint in the sum of £5,000.

51. Furthermore, for the reasons I have given, I refuse this appeal.