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CPS’s failure to deal with costs leads to adverse order

Posted on April 13, 2017

The Director of Public Prosecutions (DPP) has been ordered to pay £20,000 in costs after ignoring the Administrative Court’s efforts to sort out the costs of a judicial review (JR) application.

This was even though the money would come out of the public purse in a case where the DPP just carried out her statutory duty.

R (on the application of RA) v The Director of Public Prosecutions [2017] EWHC 714 (Admin) concerned a JR brought by the chief executive of company, RA, who had been under investigation over a criminal conspiracy since 2013. In July 2015, he began the JR to force the Crown Prosecution Service (CPS) to make a charging decision.

At a hearing on 28 August 2015, the CPS said the decision would be made by 30 November that year and Mr Justice Collins decided not to allow RA to proceed with the JR, but gave him liberty to come back to court if the deadline was not met. The CPS decided on 27 November not to charge him.

On costs, the order agreed by the court said the CPS should file a schedule of costs and that the claimant should file any counter-submissions.

In December, the Administrative Court Office (ACO) contacted the parties to find out what had happened and then, having found out the deadline was met, asked them to agree a consent order to withdraw the JR. It also urged the parties to agree the costs.

However, the CPS failed to respond to any correspondence from either the office or RA for 13 months, but RA continued his claim for costs as a litigant in person (his solicitors having been closed down in the meantime).

During that period, Dinah Rose QC, sitting as a deputy High Court Judge, ordered that there be no order for payment of the DPP’s costs and that any application for costs by RA had to be filed within 14 days and supported by short submissions. This he did, claiming £27,000, and then James Goudie QC, also sitting as a deputy High Court judge, granted RA costs of £20,000.

The CPS then sprang into action and sought to have the decision overturned. However, Mr Justice Fraser was having none of it. “The irony in this case is that the litigant in person, RA, broadly followed exactly what was expected and progressed his application for costs properly; those acting for the DPP did not,” he said. “It should also be noted that the procedures in question are not arcane and overly-technical requirements of 19th century Chancery law. Simply responding either to applications or even merely letters does not impose an onerous burden upon anyone, legally qualified or not.”

The judge said: “There is, in my judgment, simply no good explanation available for the failure by the DPP, through those at the CPS who were supposed to be acting on her behalf in the judicial review proceedings, to take any substantive or procedural steps in the action whatsoever between September 2015 and October 2016 until the Goudie order was made.

“This inaction was contrary to the duty imposed upon the DPP as a party to the litigation, to be co-operative and to help the court to further the overriding objective. It also ignored the express communications to the relevant department of the CPS by the ACO itself, which directed the CPS to the relevant approach and principles and even provided copied extracts of the Administrative Court guidance and relevant authority. There is no excuse for failing to lodge submissions opposing RA's application for his costs (or even making a belated application for the DPP's costs).

“Even if, therefore, the DPP could show that she had good grounds for opposing the costs application by RA, had the CPS troubled to do so on her behalf at the time, there is in my judgment no good reason for invoking the power under CPR 3.1(7) to vary or revoke the Goudie order. Litigation requires finality, and the finality of litigation has long been a principle of public policy. This application therefore fails in any event and the Goudie order will not be revoked or varied in the way sought by the DPP.

“I am aware that the effect of this… is that the DPP will have to pay a sizeable sum of £20,000 in costs to a person, RA, suspected of a criminal offence, and for doing no more than exercising her statutory function… However, the fact that these costs will be borne by the public purse, which has enough claims on it in any event, is not in my judgment a good reason for exercising the power under CPR part p.1(7) where proper grounds for doing so do not exist.”

However, given the “particular and peculiar features” of the case, Fraser J said his judgment should not be taken “as any form of encouragement to other litigants to issue judicial review proceedings against the DPP in the expectation (or even hope) that costs orders such as these will follow as a matter of routine”.

 

The ACL eBulletin will back in a fortnight.

 

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