England and Wales High Court (Administrative Court) Decisions

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

		CO/9617/2013 Royal Courts of Justice Strand London WC2A 2LL
		7 February 2014

1. MRS JUSTICE ANDREWS: This is an appeal brought by way of case stated from the decision of the Crown Court at Chelmsford on 1 March 2013 to uphold the decision of the Magistrates' Court to order the forfeiture of a sum of £6,500 pursuant to section 298 of the Proceeds of Crime Act 2002, "POCA".
2. The appellant, Mr Nuro, is an Albanian national who entered the United Kingdom without obtaining the requisite leave to enter in accordance with the rules of the Immigration Act 1971 ("the 1971 Act") That unlawful entry was a criminal offence under section 24(1)(A) of the 1971 Act.
3. It is common ground that the £6,500 in question was obtained by Mr Nuro as income for self-employed work as a handyman. Despite being an illegal immigrant, Mr Nuro obtained a National Insurance number and paid tax and insurance contributions in respect of his earnings. The question certified for the opinion of the High Court is:

"Whether it was perverse or otherwise unlawful [for the Crown Court] to decide that cash representing the appellant's profits from his working as a self-employed plasterer and decorator in the United Kingdom after unlawful entry was recoverable property within the meaning of section 304 POCA 2002, which issue turned by reason of section 242(1) on whether the cash was obtained by or in return for unlawful conduct within the meaning of section 241 POCA."

4. For the reasons set out in this judgment I have no hesitation in answering that question in the affirmative and allowing this appeal.
5. It was and is common ground that the statutory test applicable was whether the cash was obtained through (meaning by, or in return for) unlawful conduct and that the burden of proof that it was lies on the Respondent.
6. Section 298(2) of POCA provides, so far as is material:

"The court ... may order the forfeiture of the cash or any part of it if satisfied that the cash or part A is recoverable property."

7. By section 304, "recoverable property" is defined as property obtained through unlawful conduct and by section 241, unlawful conduct is defined as conduct occurring in any part of the United Kingdom which is unlawful under the criminal law of that part.
8. Section 242 defines property obtained through unlawful conduct. Sub-section 1:

"A person obtains property through unlawful conduct (whether his own conduct or another's) if he obtains property by or in return for the conduct."

9. As Mr Bird (who represented the Respondent in this appeal but not below) observed, the key issue is what is meant in this context by the word "by". He accepted that there must be a sufficient causal nexus between the criminal conduct and the obtaining of the property. He also accepted that it is insufficient to satisfy the requisite nexus to demonstrate that the illegal entry was a necessary link in the chain of causation. However, he submitted that it was open to the Crown Court to make the finding on the facts of this case that the nexus was sufficient.
10. It is of some importance in the present case to note that it is not a criminal offence for an illegal immigrant to work as a self-employed person once he is in the country. Indeed, it is not a criminal offence for such a person to obtain a job. It is a criminal offence for an employer to employ an illegal immigrant, although in that situation it is the employer and not the employee who commits the offence.
11. Section 21 of the Immigration, Asylum and Nationality Act 2006 (which replaces section 8 of the Asylum and Immigration Act 1996) was to broadly similar effect. Thus, if POCA applied to the fruits of the labour of the illegal entrant (especially one who pays his tax and national insurance) it would operate so as to penalise him for not becoming a burden on the State, even although Parliament has decided not to make it a criminal offence for him to work.
12. It is also a criminal offence for someone who has been given leave to enter the United Kingdom on certain conditions to work in breach of those conditions. For example, if someone has leave to enter to study as a student on the condition that he must not take up a paid job, and he is found working in a coffee bar or a shop, it would seem that POCA could apply to that person's earnings. However, it would not apply because the person was in the country unlawfully but because he had committed a distinct criminal offence and those earnings would be directly linked to the commission of that offence.
13. Offences may also be committed under the Fraud Act 2006, (or until its repeal under the Theft Act 1968)by someone who actively deceives an employer or a client into engaging him, by, for example, falsely representing to that person that he has certain qualifications, or that he has particular authorisation to do the work concerned. Those sorts of offences can be committed by people who are in the country lawfully or unlawfully and are fact-specific. Again, if someone receives money as a consequence of a fraudulent misrepresentation which operates on the mind of the person who is deceived, that money would be liable to forfeiture under POCA.
14. Suppose that the person who commits that offence happens to be to be an illegal immigrant and would not have been able to deceive the employer or customer if he had not been in the country. The application of section 298 would have nothing to do with the reason for his presence in the country. The criminal offence by which the money was obtained would be the fraud.
15. At the time when this matter first came before the Crown Court in December 2012, the Appellant's counsel had required the Respondent to identify the type of crime relied upon. At an early stage it was submitted on the Appellant's behalf that there was no continuing criminality, because the relevant crime was committed under section 21(1)(A) of the 1971 Act on entry into the United Kingdom, and that the earning of the money was too remote.
16. Although there was no submission of no case to answer, it was obvious at that stage that there could be a short legal answer to the proceedings which would not necessitate the calling of evidence, and therefore the court was invited to make a preliminary ruling.
17. The judge adjourned the hearing and directed the service of further written arguments. Initially the Respondent relied entirely upon section 24(1)(A). It was only when a further skeleton argument was served that the Respondent sought to introduce fraud. That was the point at which the manner in which the case was dealt with below became unsatisfactory, because despite the fact that the Respondent had accepted that the money was honestly obtained and despite the fact that it had heard no evidence from the Appellant himself, the court nevertheless entertained a submission that by holding himself out as available to do work lawfully he was:

"At least impliedly representing that was fully authorised and that was a misrepresentation which on the face of it was a breach of the criminal law under, for example, section 16 of the Theft Act 1968."

18. The Crown Court refused to state a case in respect of the alleged unfairness of the process, but that does not mean that I cannot take into account the fact that the court proceeded to make the findings that it did without hearing any evidence. Thus it was confined to the agreed facts and to any inferences that could legitimately be drawn from those agreed facts.
19. The Crown Court justified its conclusion that the seized cash was recoverable property on two separate bases:
20. (1) That there was a causal connection between the appellant's unlawful entry into the United Kingdom and his earnings in the United Kingdom which were represented by the £6,500 cash that was seized from him.
21. (2) Accepting the Respondent's alternative submissions of implied fraudulent misrepresentation to which I have referred already above.
22. As to (1), the finding of a causal connection does not explain why it was thought to be sufficient. It appears from the judgment, however, that one matter that played a significant role in the reasoning of the Crown Court was that by entering illegally the Appellant had deprived the UK Border Agency or its predecessor of the right and opportunity to consider and impose restrictions on his employment. With the greatest of respect, that is irrelevant.
23. The Crown Court also took the view that entry in these circumstances should be regarded as a continuing offence, not spent or eliminated in any way by the successful crossing of the border.
24. Mr Bird very properly did not seek to support that finding if and to the extent that it suggested that the appellant committed an offence on each day that he remained in the United Kingdom after entry. He submitted that what the Crown Court really meant was that the offence had lasting consequences, at least in terms of the nexus required by POCA.
25. I must say that it is somewhat difficult to place that interpretation on what is stated by the Crown Court but whether that is what it meant or not, in my judgment the Crown Court erred in law in its approach to the causal nexus. The relationship between the criminal offence (which was a single offence committed by the unlawful entry) and the earnings was too remote in law to satisfy the requirements of POCA.
26. Mr Bird relied upon the case of R Sarwar v Chief Constable of Greater Manchester Police [2008] EWHC 1651 (Admin), a decision of the Divisional Court which was not cited to the Crown Court. Sarwar was a case about cash seized pursuant to section 294(1) of POCA, which provides that officers can detain property which they have reasonable grounds for suspecting to be recoverable property. The Divisional Court held that on the facts of that case it was enough to show that there were reasonable grounds for suspecting that the criminal activity had made a material contribution to the acquisition of the money.
27. Mr Bird points out that although the standard of proof at the seizure and detention stage is different and the burden of proof then rests on the objecting party, at that stage the definition of "recoverable property" is the same as it is for the purposes of forfeiture. That is true, but the facts of Sarwar go a long way to explaining why the material contribution test was adopted. In that case, the money was seized from an employer who was employing both legal and illegal workers and therefore there would have been issues about whether, and if so how much of the money was derived from lawful and from unlawful activity. However, there was no doubt that some of the money must have been derived from the criminal act of employing illegal workers.
28. In those circumstances it is hardly surprising that the usual "but for" test of causation would be watered down to a material contribution test for the purposes of satisfying the relaxed standard of proof that there were reasonable grounds for suspecting the property in question to be the proceeds of crime.
29. However, when it comes to forfeiture the burden is on the Secretary of State to prove to the civil standard that the property or part of it is the proceeds of crime, and then it may well not be good enough to show that the criminal activity made a material contribution to the earnings.
30. I do not need to decide this for the purposes of this appeal because in my judgment, even if the test were one of material contribution it is plain that it is not met here.
31. There is obviously insufficient causal nexus between the illegal entry and the earnings derived from working here, which was not a crime, and the Crown Court fell into error in concluding that there was. That just leaves the alternative claim based upon the implied fraudulent representation. Mr Bird submitted that the fact findings made by the Crown Court were within the range reasonably open to it. I respectfully disagree. The appellant did not require authorisation to work. He was not committing any crime by working. Moreover, it was pure speculation that the UK Border Agency would have imposed conditions on his entry had he applied for entry and been granted it.
32. It cannot be inferred merely from the agreed fact that the appellant entered the country unlawfully and then worked for his own account that he was making any representations to anyone. In order to make findings of fraud against him, the Crown Court would have had to have heard evidence and it did not do so.
33. This case can be easily distinguished from R v Paulet [2009] EWCA Crim 1573, in which a jury had convicted the appellant of obtaining employment by making a fraudulent misrepresentation that he was entitled to take up remunerative employment in this country, when he was not. Against that background and in the light of earlier case law, the submission that the chain of causation between that criminal activity and the money paid to him as wages was broken by the employer's decision to pay him in consideration of the efficient performance of his duties, was bound to fail. The Court of Appeal made it clear that the criminal activity had a meaningful effect on his employer's decision to continue his employment and (significantly) indicated that if a time arose at which it ceased to have such a meaningful effect on that decision, matters might be different.
34. This is not a case like Paulet and the submissions made are of a very different character. In simple terms, on the evidence before it, the Crown Court was not entitled to reach the conclusion that the Appellant had committed any criminal offence other than that under section 21(1)(A) of the Immigration Act 1971, which was part of the admitted facts. The decision on the alternative case was well outside the ambit of the decisions reasonably open to them on the material that was before them.
35. For those reasons, the answer to the case stated is that it was perverse or otherwise unlawful for the Crown Court to make the decision that it did, and that the property was not recoverable property within the meaning of section 304 of POCA. This appeal is therefore allowed.
36. MR BIGGS: My Lady, thank you very much. We do apply for our costs.
37. MRS JUSTICE ANDREWS: Yes.
38. MR BIGGS: My learned friend will point out to you that there was an offer which I think is the subject of his first paragraph in his skeleton argument, to repay the £6,500 by virtue of a letter which I have in front of me dated 29 May last year.
39. That was not acceptable to my client because by that stage he had incurred substantial costs in dealing with the matter and correspondence to that effect was sent over to the Secretary of State.
40. MRS JUSTICE ANDREWS: Yes.
41. MR BIGGS: In those circumstances in my submission it is not right to hold this offer, if you like, against my client. It is clear that the Secretary of State's position was untenable at all material stages and in those circumstances I respectfully submit that my client should be entitled to his costs here and below.
42. MRS JUSTICE ANDREWS: Your client also had a finding made against him that he had committed fraud in circumstances where there was no entitlement to that finding. Effectively, it was a finding of criminality that he had had no opportunity to say anything about until it was made.
43. MR BIGGS: Yes.
44. MRS JUSTICE ANDREWS: That is an extra justification for you coming here to clear his name, is it not?
45. MR BIGGS: My Lady, absolutely. That is essentially pointed out in the letter that replied to this 29 May letter. My instructing solicitor points out that there is an important point of principle here. It has not elaborated what that point of principle is but it is implicit that the important point is that my client should not have been the subject of these adverse findings and in fact the court was wrong to have found such a broad causal test to be appropriate in an application of this kind and of course that has broader implications.
46. MRS JUSTICE ANDREWS: Yes.
47. Mr BIRD: My Lady, firstly in term of the agreed relief I think my Lady should quash the order of the court below.
48. MRS JUSTICE ANDREWS: Yes.
49. MR BIRD: The court below made no order as to costs, so each party bore its own costs of the hearing in the Crown Court.
50. MRS JUSTICE ANDREWS: All right.
51. MR BIRD: There is nothing there to quash, so to speak. My learned friend asks for his costs in this court and below. May I hand up a copy of the letter to which I refer and my learned friend's solicitor's response.
52. MRS JUSTICE ANDREWS: Yes. (Handed)
53. MR BIRD: My Lady, this was in fact prompted by the judge when he received the application from my learned friend to state the case.
54. MRS JUSTICE ANDREWS: Yes.
55. MR BIRD: I do not know if my Lady saw the judge's letter which was in the bundle?
56. MRS JUSTICE ANDREWS: I did not, actually. I knew there was a letter from the judge in the bundle.
57. MR BIRD: My Lady will find the letter at tab 10.
58. MRS JUSTICE ANDREWS: Yes.
59. MR BIRD: Perhaps if my Lady looked at that. It then reads:
60. "The letter sent behalf of the Home Office," and then my learned friend's solicitor's response.
(The Learned Judge reads)
61. MRS JUSTICE ANDREWS: Yes.
62. MR BIRD: The proposal of the judge was that the confiscation order would be revoked and the cash handed back. That was the subject of our offer to settle the case, so it is not just handing the cash back but to revoke the order so that the judge would have revoked his own order and the cash would have been handed back so the good name of Mr Nuro would have been cleared by the revocation of the order.
63. MRS JUSTICE ANDREWS: Would it? Or would there still be a finding on the record that he had been a fraudster?
64. MR BIRD: Well, an order being revoked has in my submission exactly the same effect as my Lady quashing the order. It is to the same effect as it would have provided him with all the relief sought in the appeal, saving only costs.
65. In my submission, the offer which was made at that stage which is before the judge stated the case and before the appellant's notice was filed in this court is an order to dispose of the matter and to revoke the order, so that thereby there would be no extant finding.
66. MRS JUSTICE ANDREWS: What do you say about the fact that Mr Nuro was still significantly out of pocket in terms of his costs? I can see the force of the offer, but it is on the basis that you still drop hands on costs so you each bear your own below. I think one of the reasons that the offer was rejected was the fact that you had not actually made any offer to pay the costs below.
67. MR BIRD: It is right we did not do that. The case of course started in the Magistrates' Court.
68. MRS JUSTICE ANDREWS: Yes.
69. MR BIRD: The Magistrates' Court made a finding or determined the case because Mr Nuro's representative turned up and said he was not acting and was not on the record, this was not my learned friend's now instructing solicitors. The reason there had to be an appeal by Mr Nuro to the Crown Court was that he had failed to instruct solicitors to appear for him in the Magistrates' Court. The whole reason why this went to the Crown Court was no fault of the Secretary of State's and it was entirely fault of Mr Nuro, so the position is --
70. MRS JUSTICE ANDREWS: -- that is very unusual. What, you mean the party concerned does not turn up and does not send a legal representative, so the forfeiture just sort of goes ahead 'on the nod' so to speak, is that effectively what happened and then it was appealed?
71. MR BIRD: No. What is odd is that the representative did turn up.
72. MRS JUSTICE ANDREWS: So somebody turns up and says: 'I am here out of courtesy but I am not actually instructed.'
73. MR BIRD: Well, what was really odd was that a letter had come from the solicitors. The representative that turned up was Mr Agayera[as heard]. He turned up late.
74. Would my Lady mind if I go through the entire history?
75. Counsel, Mr Lill, turned up at Chelmsford Magistrates' Court which was on 26 July 2012 --
76. MRS JUSTICE ANDREWS: -- yes --
77. MR BIRD: -- when the case was listed for a pre-trial review but the rules provide that if there is no opposition the court can hear evidence there and then.
78. MRS JUSTICE ANDREWS: All right, so it was listed for a PTR.
79. MR BIRD: Listed for a PTR.
80. MRS JUSTICE ANDREWS: But there was a danger of it going into the full hearing --
81. MR BIRD: -- a danger of not turning up. The Bench was called into court at 10.00 am, and Mr Lill invited The Bench to hear a forfeiture application under the rule 7.6 which allows you to do it on the basis that it was not being contested.
82. There was a letter dated 24 July from Metro Law saying that they were no longer instructed. The Bench agreed to hear the application. The officer was sworn, the court decided to forfeit the cash and as the form was being signed Mr Agayera turned up to say he was there to represent Mr Nuro who was contesting the matter. It was queried why he was instructed to oppose, given the letter from the solicitors, and at that stage he informed that he was instructed by the solicitors now instructing my learned friend and not Metro Law.
83. MRS JUSTICE ANDREWS: All right.
84. MR BIRD: Then there was some to-ing and fro-ing about clarification but there we are. Mr Agayera could not obtain instructions. The court clerk asked what we were to do and the outcome of that was that the order had been signed, Mr Nuro would have to use the appeal route if he wished to challenge the forfeiture decision and the court clerk agreed that that was the position.
85. MRS JUSTICE ANDREWS: It all really occurred because counsel turned up half an hour late.
86. MR BIRD: Well, on the face -- and, no indication that new solicitors were acting had been given and the previous solicitors said that they had been, that they had --
87. MRS JUSTICE ANDREWS: How much time passed between previous solicitors coming off the record and saying: 'We are no longer instructed', and this PTR?
88. MR BIRD: The letter from Metro Law solicitors was 24 July.
89. MRS JUSTICE ANDREWS: Yes.
90. MR BIRD: The date of the hearing was 26 July.
91. MRS JUSTICE ANDREWS: Quite.
92. MR BIRD: So, two days.
93. MRS JUSTICE ANDREWS: Yes. It is not very long, is it? I mean, it is not unusual for somebody to -- sometimes someone comes off the record and there is somebody else immediately coming back on but it takes time to effect. I suspect what has happened here is that there has been a breakdown of communication and that one set of solicitors has not quite got right through the formalities of notifying in time for the hearing.
94. What has actually precipitated this is the fact that perfectly properly, Mr Lill decided to take advantage of the procedural rule that allows you to go into a substantive hearing in the innocent and blameless belief that it is not contested because 'Solicitor A' has come off the record. The reality is that 'Solicitor A' has come off the record but 'Solicitor B' has come on the record, and nobody has told anybody yet. Counsel then turns up, expecting it to be just a directions hearing and is not in a position to take instructions on the substantive.
95. MR BIRD: He is late and the order has already been made --
96. MRS JUSTICE ANDREWS: -- and he is late, yes.
97. MR BIRD: Clearly, the new solicitors had time to instruct counsel and for counsel to get to Chelmsford.
98. MRS JUSTICE ANDREWS: Just about, yes.
99. MR BIRD: One would have thought they would have done the courtesy of notifying that they were on the record and indicating that the matter was to be contested.
100. MRS JUSTICE ANDREWS: Yes.
101. MR BIRD: That is all they needed to do.
102. MRS JUSTICE ANDREWS: Yes.
103. MR BIRD: That is why the case did not proceed in the Magistrates' Court and had to go to the Crown Court so that is the first element of 'sorry story'.
104. MRS JUSTICE ANDREWS: Yes.
105. MR BIRD: Second element of 'sorry story', is in our submission, the procedure adopted once it became clear that the Secretary of State was taking the point on fraud.
106. MRS JUSTICE ANDREWS: That is as much the fault of the court as it is of the appellant, is it not?
107. MR BIRD: Well, they were invited, to be fair, by my learned friend to deal with the case in this manner when he knew that this allegation was being made against him, albeit by the second skeleton argument and not the first.
108. MRS JUSTICE ANDREWS: Yes.
109. MR BIRD: So my Lady knows that skeleton argument is in the bundle?
110. MRS JUSTICE ANDREWS: Yes, I saw it.
111. MR BIRD: It is dated January, so it is two months before the hearing. So he was not taken by surprise that the fraudulent point was being raised.
112. MRS JUSTICE ANDREWS: No.
113. MR BIRD: On one basis, looking at it with hindsight having seen it being raised, it should have become apparent that he is going to have to call his client or there is going to be an inference drawn against him because he did not call his client, but there we are.
114. The Crown Court marks the position at that stage by saying although the Secretary of State wins, there is no order for costs so each party to that extent bears its own costs. Then we have the application to stay the case. We try to settle the case by saying: 'Revoke the order and have your money back.'
115. Agreed, we did not offer to pay their costs. In our submission there was no reason why we should, since even had he won in the Crown Court he probably would not have had his costs because he was only there because his counsel had turned up late in the Magistrates' Court.
116. The next thing that happens is that that offer is rejected. The rejection letter, which my Lady has, is only to do with costs: it is nothing to do with his good name at all but the important issue is the legal point. In our submission actually my Lady has decided the case not on a legal point but on inadequacy of evidence.
117. MRS JUSTICE ANDREWS: I have done it on both. The legal point is whether or not it is sufficient to show that there is a step in the chain of causation, because that is plainly the basis on which it was decided. I have decided well, it is either material contribution or 'but for', and neither of those is satisfied.
118. MR BIRD: If we move on to the next stage. The case is stated on 1 July.
119. MRS JUSTICE ANDREWS: Yes.
120. MR BIRD: There was an application for an extension of time because the appellant's notice in this case was not dated until 23 July and the explanation given is that the case stated by the judge on 1 July was not received by my learned friend's instructing solicitors until the 15th. Clearly, they say that. We have to accept it, so in fact they are not out of time. Having issued the appellant's notice on 23 July, it was never served on the Secretary of State until we had the bundle last week.
121. MRS JUSTICE ANDREWS: Oh dear.
122. MR BIRD: We never had a sealed notice and in my submission that is part of the conduct of the appeal which the court can take into account. The final point is we have never had any estimate of the costs. I do not think Precedent H technically applies because it is not a multi-track case but we have never had a schedule of costs. I do not know if my learned friend is asking for a summary assessment.
123. MRS JUSTICE ANDREWS: I would normally do a summary assessment. It is a one day case.
124. MR BIRD: Yes, it is a one day case. We served a schedule two or three days ago and we have had nothing in response.
125. MRS JUSTICE ANDREWS: Oh dear.
126. MR BIRD: In my submission, all of those points, there is clearly a sad and sorry history.
127. MRS JUSTICE ANDREWS: You say it is partly, if not largely brought about by the appellant's side, and therefore you should not be made to suffer in consequence.
128. MR BIRD: The substantive -- clearly, there are no costs in the Magistrates' Court, apart from counsel turning up late.
129. MRS JUSTICE ANDREWS: Yes.
130. MR BIRD: The costs that my learned friend is claiming are --
131. MRS JUSTICE ANDREWS: It is the Crown Court costs and the courts here.
132. MR BIRD: Exactly, and we say both of those derive from the fact of turning up late in the Magistrates' Court. In addition, the conduct of the appeal has left quite a lot to be desired because the appellant's notice should have been served within three days back in November. We did not get it until last week, notwithstanding a number of requests, because if nothing else we wanted to see whether there was an argument on whether an extension of time should be granted.
133. MRS JUSTICE ANDREWS: Oh, right.
134. MR BIRD: It is not until we see the appellant's notice with the reasons for an extension of time. Namely, that it took 14 days for the case stated to get from Chelmsford to my learned friend's instructing solicitors, wherever they are.
135. MRS JUSTICE ANDREWS: You discovered it was a 'belt and braces' because in fact they did not need the extension at all.
136. MR BIRD: Exactly, because if they did not receive it until the 15th, they were in time. For all of those reasons, we say that this is a classic case where the court can look at the conduct of the litigation.
137. One also has to consider proportionality in this case bearing in mind the offer that we made that Mr Nuro should get his money back and that the order should be revoked before any of the costs of this appeal were incurred.
138. In our submission, your Ladyship should say no order as to costs; there are no orders in the court below that need to be quashed. So far as costs are concerned, each party bears their own costs and of course Mr Nuro will get his money back.
139. MRS JUSTICE ANDREWS: All right. What do you have to say about that?
140. MR BIGGS: My Lady, can I first of all say I am not entirely sure what happened in the Magistrates' Court. It seems as if it was a fairly sorry state of affairs.
141. The reality, though, in relation to how it went to the Crown Court and then this court is this: the Secretary of State made the application for forfeiture, there was actually no evidential basis for that application in the circumstances. It looks as if she had pursued the application on the basis of a misconceived understanding of the scope of section 242.
142. With respect to the point about fraud, well as I say, that was not raised until around January 2013. In any event, there was no evidence to support the allegation of fraud and the Secretary of State bears its burden.
143. MRS JUSTICE ANDREWS: No. You were entitled, you say, to take your stand on the basis that there was no evidence and that if they went down that route they would be acting outside their powers.
144. MR BIGGS: Precisely.
145. MRS JUSTICE ANDREWS: You did not have to call your client in order to do that. That would just make things worse, if anything.
146. MR BIGGS: Exactly. Precisely, my Lady.
147. MRS JUSTICE ANDREWS: Potentially.
148. MR BIGGS: It was not necessary.
149. MRS JUSTICE ANDREWS: No.
150. MR BIGGS: The only slightly unusual procedural point here, I suppose, in the way that I chose to deal with it was by inviting the court to make a determination of a preliminary issue in order to get around the rule about summary judgment/no case to answer.
151. MRS JUSTICE ANDREWS: Yes.
152. MR BIGGS: That was made express. I mean, there was no attempt to conceal that reality from the court, and in my submission that needs to be borne in mind.
153. The reality is the Secretary of State's approach to this application was misconceived from the outset. She never had enough evidence to prove her case. It was inevitable, therefore, whatever happened in terms of procedural errors or whatever that this application was misconceived. So my client was put to the expense and time of having to deal with an application that should never have been brought in the circumstances.
154. In terms of the conduct of this appeal, I accept that things were not done as they should have been, but I invite the court to bear in mind the principle of proportionality here: yes the appellant's notice was not served until the appeal bundle, and the appeal bundle was served late, but the reality is that the issues were clearly identified by both parties in the early stage.
155. The stated case was dealt with properly. What happened in terms of the final version of this case stated was in fact my learned friend's version of the stated case was accepted, in large part by the judge. So there was no issue there in terms of identifying the nature of the dispute between the parties at an early stage.
156. In reality, there was very little prejudice to either side by this procedural default. Looking at things in the round, bearing in mind the fundamental point that my client has won on every argument he has made, the application that the Secretary of State sought to defend today should never have been brought on the evidence available to the Secretary of State. Bearing in mind the important point, my Lady, that you averted to as to the adverse findings about a serious criminal offence, in my submission it is appropriate to give my client his costs of here and in the Crown Court, at least.
157. In terms of the point that my learned friend makes about revoking the order, it is a very curious feature of this case that the judge felt it necessary to write to the Secretary of State ex parte to invite her to --
158. MRS JUSTICE ANDREWS: -- yes, I have never heard of a judge doing that before.
159. MR BIGGS: In my experience, it is very strange indeed to say the least. That, I suppose goes to show that on some level, that combined with the fact that the judge was prepared to make no order as to costs, despite the fact that costs normally follow the event that the respondent had won in the Crown Court, that indicates that this was a case where proportionality issues were always in play irrespective of the legal arguments.
160. In any event, the judgment had been delivered in open court which found my client guilty of a serious criminal offence and my client was entitled to vindicate his position in that respect.
161. MRS JUSTICE ANDREWS: What on earth am I going to do, because you have not produced a schedule of costs?
162. MR BIGGS: That will be the most important procedural defect. I can only apologise on behalf of those who instruct me. I am not sure why the schedule of costs has not put in. I would invite this court to deal with the point in this way: if the issue of costs in principle can be dealt with today, written submissions on an M 260 schedule of costs can be put in.
163. MRS JUSTICE ANDREWS: Well, it is the only way that we can deal with it sensibly because you cannot send this off for detailed assessment, it is a nonsense. A detailed assessment is going to be just hopeless.
164. MR BIGGS: Indeed.
165. MRS JUSTICE ANDREWS: Far too disproportionate, it seems to me.
166. MR BIGGS: Indeed. I mean I am happy to accept that the costs of that process, written submissions, would not be recoverable by my client.
167. MRS JUSTICE ANDREWS: Yes, well that would be the very least I would have thought, that you have to bear your own costs for the further submissions.
168. But of course there will be costs both ways. I mean it is not just your costs, it will be costs incurred. Mr Bird is going to have to respond because once he sees your schedule he might say: 'Well, you should not have spent 30 hours looking at documents', or whatever, so it would be all the costs.
169. It will be the costs of -- unless you can agree a figure -- I mean, what would be hoped is I will give you a rough and ready idea as to what I would be minded to do and then hopefully with some common sense you can go away and agree a figure once the schedule is produced without my having to pronounce on it. I would be willing to give you a couple of weeks do it just in order so that you can talk.
170. MR BIGGS: Indeed, my Lady. I would invite the court to make an order in whatever form the court is minded to make in terms of principle of costs, and then to direct that the appellant files and serves a summary assessment schedule of costs together with written representations and the defendant to respond to that.
171. In the event that there is no agreement within a certain timeframe my learned friend and I can work out the form of an order.
172. MRS JUSTICE ANDREWS: Yes, all right, well that is what I will do.
173. MR BIRD: My Lady, in the olden days at the County Court, my Lady would ask to see my learned friend's brief and see what it is marked at. May I suggest that? I mean, could my learned friend tell us what his brief is marked at for today, can we see what the figure is?
174. MRS JUSTICE ANDREWS: Do we have the rough idea as to what the figure is?
175. MR BIGGS: I do. I do not know precisely what has been agreed, frankly, but my understanding is that my fee for today is in the region of £1,200.
176. MRS JUSTICE ANDREWS: That is not outside the usual ambit.
177. MR BIRD: May I just take some instructions? My Lady, we would consent to an order of £1,200. Otherwise, it would have to go off for the submissions that my learned friend suggests, and in our submission --
178. MRS JUSTICE ANDREWS: What, nothing at all for the solicitors?
179. MR BIRD: No, what have they done? Failed to serve the appellant's notice. Otherwise, it should go off for the assessment if my Lady is against me, there will be no order as to costs.
180. MRS JUSTICE ANDREWS: Yes, I will think about that for a minute.
181. All right, I have to decide about costs. The normal rule of course is that the party who wins is entitled to their costs unless there are good reasons to the contrary. I am entitled to take into account the way in which the matter has been conducted.
182. Having heard everything that has been said about the way in which matters proceeded below, I consider that the just order would be to leave things as they are in relation to proceedings below.
183. As regards the costs of the appeal, on the one hand an offer was made and if that offer had been taken then the appellant would have had his money back, but he would not have had any costs. However I have decided that he is not entitled to those costs anyway.
184. On the other hand, there is a lot of force in the fact that the Secretary of State never ever had any entitlement to seize this money and was persisting in the application that there was entitlement to forfeiture. Also, I do bear in mind that because of what the Crown Court decided, Mr Nuro was being castigated for the commission of a crime which in fact he had not committed. That is a serious matter and he had to come to court to get that matter sorted.
185. It seems to me that some costs of today ought to be awarded despite the fact that a perfectly generous offer was made. I have reflected the fact that the generous offer was made by deciding that no costs below should remain the position.
186. There has been a great deal of deficiency in the way in which this matter was conducted by the solicitors. I, of course apportion no blame to counsel in relation to the way in which it was conducted. It seems to me that the fair approach, in order to avoid the racking up of further costs (which would have to have been borne by the winning party in any event, as was conceded) is that I should make an order now.
187. I will summarily assess costs in the figure of £1,200, and that is counsel's brief fee. Counsel for the Appellant is entitled to his fee and that is the sum that I am going to award. No other order as to costs. Thank you both very much.