England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/03/2015

Lord Justice Fulford:

Costs

Introduction

1. There is an outstanding issue as to costs in this case. At the conclusion of my judgment on 4 December 2014 (with which My Lord, Mr Justice Nicol agreed), I indicated as follows as to costs:

70. The Court of Appeal is presently considering whether an application under section 59 is a "criminal cause or matter" for the purposes of section 18 Senior Courts Act and section 1 Administration of Justice Act 1960 (Panesar and others: 2014/2830, 2014/2900 and 2014/2901). This is directly relevant to the power of the judge to award costs in the present case. I would adjourn this part of the application until the Court of Appeal has handed down its decision in Panesar. I would then give the applicant 7 days to file any additional submissions on this issue, with 7 days for the second defendant to file submissions in response. I propose that our decision on this discrete issue is handed down in writing thereafter ([2014] EWHC 4096 (Admin)).

2. The judgment in Panesar and others v Her Majesty's Revenue and Customs has now been handed down ([2014] EWCA Civ 1613) and counsel for the second defendant, Mr James Fletcher, has submitted supplementary written submissions on this issue. The claimant has chosen not to file any additional arguments.
3. In Panesar the Court of Appeal, Civil Division, considered whether a claim by Her Majesty's Revenue and Customs pursuant to section 59 Criminal Justice and Police Act 2001 for authority to retain material seized pursuant to search warrants was a "criminal cause or matter" for the purposes of the route of appeal. Section 18(1)(a) of the Senior Courts Act 1981 provides:

(1) No appeal shall lie to the Court of Appeal –

a) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter.

4. The Court concluded that the underlying proceedings were a criminal matter, given, inter alia, "section 59 is concerned with what should happen to property which has been seized by the use or purported use of powers which exist in aid of criminal investigations" (see [18]). As a result, the Court of Appeal Civil Division had no jurisdiction to entertain an appeal from a decision of the Divisional Court dismissing the claims for judicial review.

The Present Issue

5. The judge awarded costs against the claimant on the basis that there was nothing to indicate that he should not apply what he described as the general rule as to costs. He directed an assessment of costs in the absence of agreement. The jurisdiction to which the judge appeared to refer is that set out in the Crown Court Rules 1982 (SI 1982/1109) ("CCR").
6. Consistent with the decision in Panesar, the second defendant accepts that a judicial review of a decision under section 59 is a criminal cause or matter for the purposes of section 18 Senior Courts Act 1981 and section 1 Administration of Justice Act 1960.
7. The enabling provision as regards costs in the Crown Court under the CCR was section 52 Supreme Court Act 1981 (later the Senior Courts Act):

(1) Crown Court Rules may authorise the Crown Court to award costs and may regulate any matters relating to costs of proceedings in that court, and in particular may make provision as to—

(a) any discretion to award costs;

[…]

8. CCR Rule12 was in the following terms (the critical provision is subparagraph (2), as highlighted):

12.— Jurisdiction to award costs

(1) Subject to the provisions of section 109(1) of the Magistrates' Courts Act 1980 (power of magistrates' courts to award costs on abandonment of appeals from magistrates' courts) and sections 22(4) and 81B(4) of the Licensing Act 1964 (application of section 109(1) of the Act of 1980 to appeals under sections 21 and 81B of the Act of 1964), no party shall be entitled to recover any costs of any proceedings in the Crown Court from any other party to the proceedings except under an order of the Court.

(2) Subject to section 4 of the Costs in Criminal Cases Act 1973 and to the following provisions of this Rule, the Crown Court may make such order for costs as it thinks just.

(2) In the case of an appeal under [section 21 or 67B of the Licensing Act 1964] —

(a) no order for costs shall be made on the abandonment of an appeal by giving notice under Rule 11;

(b) no order for costs shall be made against a person who appeared before the licensing justices and opposed the grant of the justices' licence unless he appeared at the hearing of the appeal and opposed the appeal;

(c) if the appeal, not being an appeal against the grant of a justices' licence, is dismissed, the Court shall order the appellant to pay to the justices against whose decision he has appealed, or such person as those justices may appoint, such sum by way of costs as is, in the opinion of the Court, sufficient to indemnify the justices from all costs and charges to which they have been put in consequence of his having given notice of appeal.

(4) In the case of an appeal under section 81B of the Licensing Act 1964 against a decision of licensing justices, no order for costs shall be made on the abandonment of an appeal by giving notice under Rule 11.

(5) No order for costs shall be made on the abandonment of an appeal from a magistrates' court by giving notice under Rule 11.

(6) Without prejudice to the generality of paragraph (2), the Crown Court may make an order for costs on dismissing an appeal where the appellant has failed to proceed with the appeal or on the abandonment of an appeal not being an appeal to which paragraph (3), (4) or (5) applies.

9. The question raised by the second defendant is whether Rule 12 CCR, insofar as it concerns criminal proceedings, has survived the implementation of the Criminal Procedural Rules ("CPR"). It is argued that in any situation in which the CPR (or any other provision) does not cater for an award of costs, the judge is entitled to resort to Rule 12 CCR in order to make an award of costs. Alternatively, it is contended that the Crown Court as a superior Court of Record has an inherent jurisdiction to regulate its own proceedings and that includes the power to award costs. Part 76 of the Criminal Procedure Rules 2014 (2014/1610) which makes provision for costs in the Crown Court and the Magistrates' Courts does not list applications under section 59 as one of the situations in which the court can make an order for costs.
10. The first iteration of the CPR (2005/384) was made pursuant to section 69 Courts Act 2003, which provides:

(1) There are to be rules of the court (to be called "Criminal Procedure Rules") governing the practice and procedure to be followed in the criminal courts.

11. "Criminal courts" are defined as the Court of Appeal Criminal Division, and the Crown Court and Magistrates' Court when dealing with criminal causes or matters (section 68).
12. The CPR 2005 provided, inter alia, as follows:

When the Rules apply

2.1. (1) In general, the Criminal Procedure Rules apply—

(a) in all criminal cases in magistrates' courts and in the Crown Court; and

(b) in all cases in the criminal division of the Court of Appeal.

(2) If a rule applies only in one or two of those courts, the rule makes that clear.

(3) The Rules apply on and after 4th April, 2005, but do not affect any right or duty existing under the rules of court revoked by the coming into force of these Rules.

[Note. The rules replaced by these Rules are revoked when these Rules come into force by provisions of the Courts Act 2003, the Courts Act 2003 (Commencement No. 6 and Savings) Order 2004(2) and the Courts Act 2003 (Consequential Amendments) Order 2004. These Rules reproduce the substance of all the rules they replace.]

13. By Rule 78 CPR (2005/384):

Crown Court's jurisdiction to award costs in appeal from magistrates' court

78.1. (1) Subject to the provisions of section 109(1) of the Magistrates' Courts Act 1980 (power of magistrates' courts to award costs on abandonment of appeals from magistrates' courts), no party shall be entitled to recover any costs of any proceedings in the Crown Court from any other party to the proceedings except under an order of the Court.

(2) Subject to the following provisions of this rule, the Crown Court may make such order for costs as it thinks just.

(3) No order for costs shall be made on the abandonment of an appeal from a magistrates' court by giving notice under rule 63.5.

(4) Without prejudice to the generality of paragraph (2), the Crown Court may make an order for costs on dismissing an appeal where the appellant has failed to proceed with the appeal or on the abandonment of an appeal not being an appeal to which paragraph (3) applies.

[Note. Formerly rule 12 of the Crown Court Rules 1982. See also the relevant provisions of the Prosecution of Offences Act 1985 and the Costs in Criminal Cases (General) Regulations 1986. As to costs in restraint or receivership proceedings under Part 2 of the Proceeds of Crime Act 2002 see rules 61.19 to 61.22.]

14. It is suggested by the second defendant that the Note to Rule 2.1 ([12] above) is incorrect, because the Courts Act 2003, the Courts Act 2003 (Commencement No. 6 and Savings) Order 2004 and the Courts Act 2003 (Consequential Amendments) Order 2004 (S.I. 2004/2035) have not had the effect of revoking all the Rules that were "replaced" by the CPR 2005. It is submitted that they remain in force and it is emphasised that no use has been made of section 73 Courts Act 2003 in this regard, as set out in the following paragraph.
15. Section 73 Courts Act 2003 provides:

73 Power to amend legislation in connection with the rules

(1) The Lord Chancellor may, [...] after consulting the Lord Chief Justice, by order amend, repeal or revoke any enactment to the extent that he considers necessary or desirable–

(a) in order to facilitate the making of Criminal Procedure Rules, or

(b) in consequence of section 69 or 72 or Criminal Procedure Rules.

(2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.

16. By section 107(8) Courts Act 2003, an "enactment" includes subordinate legislation as defined by the Interpretation Act 1978, which encompasses, inter alia, orders, rules, regulations and other instruments made under any Act.
17. Additionally, it is emphasised that whereas CCR Rule 12 is entitled "Jurisdiction of award costs", CPR 78.1 is entitled "Crown Court's jurisdiction to award costs in appeal from magistrates' court". It is suggested that Rule 12 is wider in scope than CPR 78.1, and that the more restrictive description of CPR 78.1 is a good indication that the latter was introduced specifically to deal with costs in appeals from the Magistrates' Court, whereas Rule 12 has remained in force and provides a discretion to award costs in respect of other proceedings in the Crown Court.
18. Part 78 CPR 2005 ("Costs Orders Against the Parties") was repealed on 5 October 2009 by the Criminal Procedure (Amendment) Rules (S.I. 2009/2087) which included a new Part 76 entitled "Costs". This provision superseded the existing rules in part 78, and it deals with all costs orders made in the criminal courts in criminal cases. In the context of this case, Rule 76.1 provides:

76.1.—(1) This Part applies where the court can make an order about costs under—

[…]

(c) section 52 of the Senior Courts Act 1981 […];

19. I note that the procedural rules governing applications under section 59 Criminal Justice and Police Act 2001 (but not costs) are set out in rule 39 Crown Court Rules 1982 (as inserted by S.I. 2003/639). This provision has not been repeated in, or replaced by, any iteration of the CPR.
20. Against that background it is argued that Rule 12 has only been superseded in respect of specific criminal causes or matters, as set out in the CPR. It is suggested that otherwise it has not been revoked and remains in force, including as regards applications under section 59 Criminal Justice and Police Act 2001.
21. Finally, it is broadly suggested that the Crown Court has an inherent jurisdiction to award costs as a superior court of record.
22. It is unnecessary to set out the applicant's submissions, given my conclusions as described below.

Discussion

23. As set out above, section 69 of the Courts Act 2003 confers the power on the Criminal Procedure Rule Committee to make rules of court governing the practice and procedure to be followed in the criminal courts. It came into force on 1 September 2004.
24. There is a long-recognised principle of law that the repeal of an enabling power will, by implication, revoke any secondary legislation made under that power (see Watson v Winch [1916] 1 KB 688 and R v Ellis (1921) 125 LT 397, cited in Bennion on Statutory Interpretation, 6^th edition, p.250). It is important in this regard to note that this principle has been applied as regards the civil rules. Neither the Civil Procedure Act 1997 nor any instrument made under it expressly revoked the pre-existing Rules of the Supreme Court or the County Court Rules. It was considered necessary only to repeal the relevant rule-making powers. In contradistinction, it was necessary for the Civil Procedure Rule Committee to "adopt" those rules that it wished to preserve because otherwise they would have ceased to have effect by operation of law on the repeal of the enabling powers under which they were made.
25. In my judgment, this principle operated as regards awards of costs in the Crown Court in criminal cases at the time of the transition to the Criminal Procedure Rules. The majority of the necessary consequential amendments and repeals were set out in schedules 8 and 10 to the 2003 Act. The outstanding amendments and repeals were made by Order after the Act was passed (see the Courts Act 2003 (Consequential Amendments) Order 2004 (S.I. 2004/2035). Critically, as regards section 52 Senior Courts Act 1981 the section was amended as of 1 September 2004 by the Courts Act 2003 (Consequential Amendments) Order 2004. The original wording, highlighted where relevant, changed from:

(1) Crown Court Rules may authorise the Crown Court to award costs and may regulate any matters relating to costs of proceedings in that court, and in particular may make provision as to—

(a) any discretion to award costs;

[…]

to:

(1) Rules of court may authorise the Crown Court to award costs and may regulate any matters relating to costs of proceedings in that court, and in particular may make provision as to—

(a) any discretion to award costs;

[…]

26. Furthermore, 84 Senior Courts Act 1981, which had provided the power to make rules of court, inter alia, for all cases in the Crown Court, was amended in 2004 as follows:

Power to make rules of court.

(1) Rules of court may be made for the purpose of regulating and prescribing except in relation to any criminal cause or matter, the practice and procedure to be followed in the Crown Court . . . .

27. This change to section 84 of the Senior Courts Act 1981 removed the power from the Crown Court Rule Committee to make rules that regulated and prescribed the practice and procedure to be followed in criminal cases in the Crown Court.
28. The amendments to sections 52 and 84 Senior Courts Act 1981 need to be considered in conjunction with the power conferred by section 69 Courts Act 2003 establishing the Criminal Procedure Rules (given the latter were intended to govern the practice and procedure to be followed in the criminal courts when dealing with criminal causes or matters). In my judgment, these legislative changes have had the effect of revoking the Crown Court Rules insofar as they relate to an award of costs in criminal cases in the Crown Courts. In short, the Criminal Procedure Rules have replaced the Crown Court Rules in this context, and the latter provisions – in these circumstances – have no continued effect. Put otherwise, the variations to the relevant enabling provisions, when coupled with the introduction of an alternative set of rules and a new rule-making body as regards costs in criminal cases in the Crown Courts, have had the consequence that the pre-existing rules (in this situation) fell away by operation of law.
29. Finally, in this regard it is to be noted that the expression 'rules of court' in section 52 Senior Courts Act 1981, as amended, has a precise meaning by virtue of the definition in Schedule 1 to the Interpretation Act 1978, which provides:

"Rules of Court" in relation to any court means rules made by the authority having power to make rules or orders regulating the practice and procedure of that court, and in Scotland includes Acts of Adjournal and Acts of Sederunt; and the power of the authority to make rules of court (as above defined) includes power to make such rules for the purpose of any Act which directs or authorises anything to be done by rules of court.

30. It follows that the expression Rules of Court refer in this particular (criminal) context to the CPR.
31. It is to be noted that the scheme of the CPR was to preserve many of the Crown Court Rules by adoption and I stress that section 69 Courts Act 2003 only covers the criminal aspects of the work in the Crown Court and the Magistrates' Courts. Section 84 Senior Courts Act 1981 continued to give the Crown Court Rule Committee (now abolished: S.I 2012/2398) the power to make Rules of Court that regulate the practice and procedure in non-criminal cases in the Crown Court. Therefore, the pre-existing rule-making scheme was only partially replaced. Therefore, the Crown Court Rules did not, in their entirety, cease to have effect and, for instance, they continue to govern aspects of civil cases in those courts. In summary, the pre-existing rule-making powers were varied to exclude any power to make procedural rules in relation to criminal matters (see, for example, Courts Act 2003, Schedule 8, paragraph 245(1) and (2) and the Schedule to the Courts Act 2003 (Consequential Amendments) Order, paragraph 15(1) and (2), along with with the changes that were made to the wording of section 84 of the Senior Courts Act 1981).
32. The fact that rules applying only to civil matters in the Crown Court (or the Magistrates' Courts) will remain in force under the rule-making power (as amended) was amply demonstrated by the change from CCR Rule 12 to CPR Rule 78.1. The provision remained essentially the same, save that costs under the Licensing Act 1964 were excluded because they do not relate to a criminal cause or matter.
33. It follows that the pre-existing broad power under Rule 12 of the Crown Court Rules 1982 no longer applies and section 59 applications are now not covered in this regard. In the result, for my part I would reject Mr Fletcher's submission that Rule 12 of the Crown Court Rules remains available as a means of awarding costs for applications under section 59.
34. I turn next to the issue of whether an award of costs could have been made in this case because the Crown Court is a superior court of record (section 45 Senior Courts Act 1981) and has an inherent jurisdiction to make an award of costs when an application is made under section 59 Criminal Justice and Police Act 2001. Section 45 provides:

Senior Courts Act 1981

45. General jurisdiction of Crown Court.

(1) The Crown Court shall be a superior court of record.

[…]

(4) Subject to section 8 of the Criminal Procedure (Attendance of Witnesses) Act 1965 (substitution in criminal cases of procedure in that Act for procedure by way of subpoena) and to any provision contained in or having effect under this Act, the Crown Court shall, in relation to the attendance and examination of witnesses, any contempt of court, the enforcement of its orders and all other matters incidental to its jurisdiction, have the like powers, rights, privileges and authority as the High Court.

[…]

(emphasis added)

35. As explained in In re Trinity Mirror plc and others (A and another intervening) [2008] EWCA Crim 50; [2008] QB 770 for the purposes of section 45(4), "matters are 'incidental to' the jurisdiction of the Crown Court only when the powers to be exercised relate to the proper dispatch of the business before it" [30]. The Crown Court has no general power to order costs, and as with injunctions (the subject matter of the Trinity Mirror case), there is no inherent jurisdiction to order costs on the basis that the court is seeking to achieve a desirable, or indeed a "just and convenient", objective. In my judgment, the proposed order for costs is not directly linked to the exercise of the jurisdiction of a judge of the Crown Court in the exercise of his statutory functions under section 59 and the appropriate jurisdiction is therefore lacking. Put otherwise, a Crown Court judge does not need to have the power to order costs for the proper dispatch of its business and therefore this attempted recourse to section 45 (4) of Senior Courts Act 1981 is inappropriate. Furthermore, the Crown Court as a creature of statute lacks any "inherent" jurisdiction.
36. Finally before departing from this issue, I would add that there is, potentially, an important difference between the separate legal concepts of "a judge of the Crown Court" and "the Crown Court", on the basis that legislation has, on occasion, treated certain types of judges as being legally distinct from the court in which they sit. Put in a nutshell, there is a possible argument that a judge dealing with an application under section 59 is not exercising the general jurisdiction of the Crown Court as a superior court of record. Instead, he is simply acting pursuant to the discrete powers given to a judge of the Crown Court in this particular situation (see sections 59 (2) and 64 (1) (a) Criminal Justice and Police Act 2001). However, this argument is dependent on drawing something of a fine distinction between these two concepts and we have not received submissions on the issue. In any event, it is unnecessary to resolve the point given the conclusions that I have reached above and I therefore say no more about it.
37. In my view there is, on analysis, no support for the second defendant's argument, and on this basis I consider that the order as to costs was wrong.
38. It follows I would quash the order as to costs.

Mr Justice Nicol:

39. I agree.