England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		7 October 2015

1. MR JUSTICE HICKINBOTTOM: By section 3(1) of the Firearms Act 1968, it is an offence to sell or otherwise deal in firearms without being registered as a firearms dealer with the chief officer of police for the relevant area, under the provisions of section 33 of that same Act. Where registration is refused, an appeal lies to the Crown Court, any appeal being by way of a full merits rehearing (section 44).
2. In June 2013, the Claimant company (of which Mr Christopher Gerard Perkins is a director), wishing to deal in firearms, applied to the Interested Party Chief Constable for registration as a firearms dealer. Mr Perkins had been a director of another company which had been registered as a firearms dealer in Sussex, before that company relocated to Dyfed Powys where it had again been registered before that registration was revoked in 1996. The 2013 application was refused, and the Claimant duly appealed to the Defendant Crown Court.
3. The procedure before the Crown Court was not entirely happy. The appeal hearing was set down before Her Honour Judge Ackner and two magistrates on 27 May 2014, with a time estimate of three days. I am told by Mr Richard Griffiths of Counsel, now representing the Claimant, that that time estimate was fixed without a particular recourse to the parties.
4. At the May 2014 hearing, the Claimant employed Direct Access Counsel, Mr Tomas Quinn. The evidence of the witnesses relied upon by the Chief Constable - as respondent to the statutory appeal - lasted until well into the third day. Mr Perkins then began his evidence; but, by the end of that day, he had not finished and the hearing was adjourned part-heard.
5. It was initially relisted for 13 August 2013, before the same bench, with a time estimate of one day. Again, as I understand it, no particular soundings of that time estimate were made of the parties before it was fixed. In any event, unfortunately, Judge Ackner fell ill, and the hearing was therefore further adjourned and relisted for 3 October 2014.
6. By the 3 October 2014 hearing, of which a transcript is now available, one of the two magistrates had retired and was no longer available; and Judge Ackner had taken the view that the balance of the hearing would in any event take more than one day. It was considered that a further adjourned hearing would not have been until July 2015 at the earliest. In the circumstances, the court had taken the (at least, provisional) view that the adjourned hearing should be abandoned in favour of a new hearing - and Judge Ackner made that view known to the parties in an email sent the week before the 3 October hearing. At that hearing, the court (comprising Judge Ackner and the remaining magistrate) confirmed that view, and the appeal hearing was abandoned in favour of a fresh hearing before a differently constituted court of judge and two magistrates on 20 July 2015, with a time estimate of five days.
7. To complete the chronology, the fresh hearing did not commence then because, as I understand it, in the meantime Mr Perkins has been arrested on firearms offences; and, to enable those matters to run their course before the firearms dealers' registration appeal hearing took place, that hearing has now been adjourned to the middle of 2016.
8. At 3 October 2014 hearing, and in the circumstances I have described, the Chief Constable made an application for costs against the appellant in the appeal then before the court(i.e. the Claimant), effectively for the costs thrown away by the turn of events. The primary basis for the application was that the failure of the court to complete the appeal hearing in the allotted time resulted from the Claimant's failure properly to prepare for the hearing, with the result that he produced a substantial bundle of documents only at the start of the hearing and then proceeded to produce further documents on an ad hoc basis during the course of the hearing, such that the questioning of the Chief Constable's witnesses took much longer than anticipated and much longer than it ought. That was so because (e.g.) the witnesses and those instructed by the Chief Constable had to consider and respond to documents on a rolling basis which meant that there were many significant interruptions, whilst instructions were taken on the documents as and when they were produced. That was all despite an indication as long ago as January 2014 from the Claimant through different lawyers then instructed that a bundle in response to the Chief Constable's evidence was then being prepared.
9. Mr Hamblin of Counsel, then representing the Chief Constable, accepted that the application for costs he made was unusual. In the course of his submissions, he said this:

i. "This is an unusual state of affairs, because we have not yet concluded the appeal. But what we say is that this is tantamount effectively to an application for wasted costs up until and including today, based upon the very clear failure by Mr Perkins - and again, this is not aimed at Mr Quinn and he knows that full well - that up until the beginning of the appeal there was ample time for Mr Perkins to provide some documents in paginated form.

ii. ...

iii. As a result, we would say, of the failure to pursue the appeal in a form that would have assisted the court - and that is the important issue - costs have been significantly wasted and incurred by the respondent up until and including today. Mr Perkins should bear the costs of those as of today. What happens finally at a rehearing is another issue.

iv. So we invite this court to take a view today at the way that we have got to this stage, the way it could easily have been shortened had the appellant pursued his appeal in the way that he is - I do not say normal, but most appeals result in bundles being provided, which then assist the court, not just the parties involved.

v. So where there has been a complete failure to pursue or prosecute his own appeal in a way which avoided significant extra time, and now a discontinuance and rehearing, we say that it would be appropriate for the court to consider at this stage making an order for costs, a full order for costs, in the sum that we now seek. It is, of course, entirely a matter for the court. There are numerous ways the court could consider it: reserving the matter until the end of the final appeal would be one way of doing it.

vi. ...

vii. It is an unusual situation to be in, but we do have the duty to protect the public purse. We say at this stage that [an order that] the costs that have been incurred should be made against Mr Perkins come what may."

10. In the event, following Mr Quinn's submissions in response, Judge Ackner gave a ruling on behalf of the court that 60 per cent of the costs sought by the Chief Constable in the appeal to date (i.e. as I understand it, 60% of all of his costs of the appeal) should be payable by the Claimant, which was translated into an order that the Claimant pay the Defendant's costs in the sum of £6,800.
11. This claim for judicial review was commenced on 17 November 2014. In it, the Claimant (still being represented by Mr Perkins as its director) sought to challenge the decision of the Crown Court to "abandon" the appeal hearing and to award the Chief Constable the costs that it did.
12. On 14 January 2015, Philip Mott QC sitting as a judge of this court, granted permission to proceed; but on only one narrow basis, namely on the ground that the court arguably did not have jurisdiction to make a cost order prior to the conclusion of the appeal. The Claimant has not renewed its application for permission in respect of other grounds, and I need say no more about them.
13. On 3 July 2015, when the substantive hearing came before Kenneth Parker J, he adjourned the matter so that a transcript of the 3 October 2014 hearing and copies of various emails between the court and the parties could be lodged, which they have now been.
14. Before me this morning Mr Richard Griffiths has appeared for the claimant. The Chief Constable has not been represented, although written submissions on his behalf have been lodged.
15. The costs regime in a statutory appeal to the Crown Court is briefly as follows. Section 52(1) and (2) of the Senior Courts Act 1981 provide that rules of court may authorise the Crown Court to award costs and, additionally, may regulate any matters relating to costs of proceedings in that court, including the costs of any appeal to the Crown Court. The relevant rules of court now appear in the Criminal Procedure Rules 2015, Part 45 of which deals with costs. Those rules replaced earlier, 2012 Rules in March 2015; but, importantly for the purposes of this claim, Part 45 of the 2015 Rules is in materially identical form to Part 76 of the 2012 Rules, which was in force at the time the Crown Court considered this costs application. I can, and will, therefore refer simply to the current version.
16. CrimPR Rule 45.1 provides that Part 45 applies where the court has power to make an order for costs under section 52 of the Senior Courts Act and rule 45.6. Rule 45.6 concerns "costs on appeal": it applies where the Crown Court can order a party to pay another person's costs on an appeal (rule 45.6(1)(a)). Of particular note, under the powers granted by section 52, rule 45.6(1)(b) authorises the Crown Court, in addition to its other powers and with exceptions not material to this claim, "to order a party to pay another party's costs on an appeal to that court". The court may make an order for costs either on application or its own initiative (rule 45.6(3)). Where the court does make an order under these provisions, unless the case falls into exceptions again not relevant to this claim, the court must assess the amount of costs itself (rule 45.6(8)).
17. In addition to rule 45.6, which gives the court a wide discretion in relation to costs on an appeal before the Crown Court, there are specific provisions applying to particular circumstances, e.g. rule 45.8 which concerns costs incurred as a result of an unnecessary or improper act or omission by or on behalf of a party; rule 45.9 which concerns costs incurred as a result of a improper, unreasonable or negligent act or omission of a legal representative; and rule 45.10 which concerns costs against non-parties.
18. In respect of each of these sets of provisions the criteria are of course different; and therefore, whenever a court is considering making a costs order, it is vital that it identifies the power under which it is acting, and focuses on the criteria relevant to that particular power. It is incumbent upon legal representatives to assist the court in this regard. In particular, it is important that, when an application for costs is made to the Crown Court, the applicant identifies the statutory provisions under which such an order is being sought. Of course, the Crown Court being a creature of statute, it has no inherent powers.
19. Before leaving the statutory scheme, I should note two further specific provisions. Under rule 45.2(3), in deciding what order (if any) to make about costs, the court is required to have regard to all the circumstances, including the conduct of all parties; and, by rule 45.2(7), on any assessment of the amount of costs, relevant factors to that assessment expressly include the conduct of all of the parties.
20. In this matter, it is unfortunate that the Crown Court did not focus more upon the particular power or powers to award costs; and it is equally unfortunate that the court was not given better guidance in that regard by counsel before it.
21. During the course of the debate before the Crown Court, there are references to "wasted costs", and to "improper acts" - which appear to suggest that the Chief Constable was making an application, at least in the alternative, under provisions over and above rule 45.6.
22. However, as Mr Griffiths frankly (and, in my view, properly) conceded during the course of this hearing, the Crown Court appears probably to have made the order it did make under the provisions of rule 45.6 (then, rule 76.6 of the 2012 Rules). I say that that concession was correct because the judgment of the court given by Judge Ackner does not make any findings in respect of (e.g.) improper acts by the Claimant and/or Mr Perkins; and appears to regard the issue of costs as a broad one, with the wide discretion given to the court by rule 45.6.
23. In respect of that power, there is no restriction - as there is under some other statutory costs powers of the Crown Court - which means that a costs order can only be made at the determination of the matter (in this case, the appeal). Therefore, the particular concern of the Deputy Judge in giving permission has no statutory basis.
24. Of course, I understand that the Claimant considers that the exercise of the discretion by the court in making the costs order against it was wrong, and that it has been badly done by. Mr Griffiths submitted that the Crown Court was wrong in so far as it worked on the basis that, but for the conduct of Mr Perkins, this appeal could have been heard within the allocated three days - because, he emphasises, the new hearing has been set down for five days, and the documents are now in much better and indeed good order. However, looking at the transcript, it seems that the Crown Court considered that, although it has given a fifth day out of an abundance of caution, the full hearing could and should now be dealt with in four days.
25. Looking at matters as a whole - as this court must do - I cannot say that the Crown Court erred in law in concluding and proceeding on the basis that, but for the conduct of the proceedings by Mr Perkins, the appeal hearing could have been accommodated in just the three days that were initially allocated to it.
26. On the basis of that finding, as I have indicated, the court was exercising a broad discretion under rule 45.6; and, in my judgment, they did not step outside the legitimate boundaries of the exercise of that discretion, nor was their approach in any way wrong or unlawful. It is not an answer for Mr Griffiths to say that costs could have been dealt with in another way, e.g. as the Chief Constable's Counsel suggested at the hearing, at the end of the appeal. Simply because a matter could properly be dealt with in another way - even if that other way appears to some better - that does not make the course adopted by the court necessarily unlawful.
27. For the reasons I have given, despite the encouragement no doubt given to the Claimant by the grant of permission to proceed in this claim, I do not consider that Mr Griffiths, despite his best and able efforts, has made good the ground upon which this challenge has been made – and I shall refuse this application.