QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| EMILY HUNT
- and –
|THE DIRECTOR OF PUBLIC PROSECUTIONS
(Determined on written submissions)
Jude Bunting (instructed by Centre for Women's Justice) for the Claimant.
Emma Scheer (of the Crown Prosecution Service) for the Defendant
Crown Copyright ©
Mr Justice Spencer:
The factual background
"Both the Judicial Review and the Appeal Against Conviction have been granted permission and it is therefore evident that both are arguable. In addition, the decision of the CACD will be binding on the Divisional Court. We have therefore instructed counsel to present arguable submissions on the matter before the senior court and once judgment has been handed down we will, of course, reconsider our position in the judicial review. No doubt, the Claimant will also be assisted by guidance from the Court of Appeal."
"As a result, despite having campaigned publicly on the precise point of law in issue in this appeal, at great personal distress, and having developed full argument in her judicial review claim, it now appears that Emily Hunt may be unable to influence the resolution of that point of law. The Court of Appeal may also, therefore, be left without the benefit of the detailed submissions that she has advanced in her judicial review claim."
"15. Emily Hunt, who is the applicant in a linked judicial review claim – in the sense that many of the same issues arise in her case which will be heard after this appeal – was allowed, without objection, to intervene on general issues through Mr Bunting of counsel."
The relevance to the judicial review of the intervention in Richards
"(3) The Lord Chancellor may by regulations make provision out of central funds, in such circumstances in relation to such criminal proceedings as may be specified, of such sums as appear to the court to be reasonably necessary – (a) to compensate any witness in the proceedings, and any other person who in the opinion of the court necessarily attends for the purpose of the proceedings otherwise than to give evidence, for the expense trouble or loss of time properly incurred in or incidental to his attendance…".
It appears that no relevant regulations have been made under s.19(3).
"Orders for costs will not normally be made either in favour of or against interveners but such orders may be made if the Court considers it just to do so (in particular if an intervener has in substance acted as the sole or principal appellant or respondent)."
Costs "of or incidental to" the judicial review proceedings
"(1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in… the High Court… shall be in the discretion of the court."
The defendant's submissions
"In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including – (a) the conduct of all the parties..."
The conduct of the parties is also one of the factors to be taken into account, pursuant to
CPR 44.4, in in deciding the amount of costs.
The claimant's submissions
"Each case should properly be decided by reference to its own circumstances. I am fortified in this view by the suggestion, as to which I express no opinion, that what is decided in these cases (which relate solely to inquests preceding a subsequent resolution of civil proceedings) may also be relevant in other contexts: for example, attendance prior to civil proceedings at a criminal trial involving death by dangerous driving or a criminal trial involving health and safety issues. Better, I think, to leave it to costs judges to decide each case on its own facts by reference to section 51 and the subordinate statutory rules and having regard to the principles indicated in In re Gibson's Settlement Trusts  Ch 179."
"28. The general approach to the meaning of that term is found in Gibson's Settlement Trusts  Ch 179 but none of the features identified by Sir Robert Megarry V-C in that case is relevant in this appeal. It Wright v Bennett  1 KB 601, on considering an earlier version of the same provision, the Court of Appeal held that "one has to treat proceedings below as a separate proceeding… from the proceedings here": per Somervell LJ, at p 606.
29. It follows that the term "of [or] incidental to" is not apt to include the costs of the proceedings from which an appeal is brought. Appeal courts have power to make orders in respect of the costs underlying proceedings because it is expressly conferred by legislation or by the rules….Thus when an appeal court makes an order in respect of the costs incurred in the underlying proceedings it is not using power conferred by section 51 but express power conferred elsewhere."