Costs in Private Prosecutions


  1. We have written previously about the growth area that is private prosecutions. Costs in such cases are a key issue.  The successful party will inevitably seek to recover costs from central funds under ss.16 or 17 of the Prosecution of Offences Act 1985, or against the unsuccessful defendant under s.18, or under s.19 on the basis of “an unnecessary or improper act or omission”.  Moreover, applications for wasted costs against legal representatives under s.19A are an increasing feature of this landscape.  Given the nature of the litigation and the parties thereto, costs are invariably substantial.

 

  1. In the case of Karen Murphy v Media Protection Services Limited [2012] EWHC 529 (Admin) M sought her costs pursuant to the civil costs regime against Media Protection Services Limited [MPS] following its unsuccessful prosecution of her. Giving judgment in her favour on this, the central issue in the case the court stated that:

(i) Save in exceptional circumstances, prosecutions and appeals in criminal cases should be subject to the criminal costs regime;

(ii) However, the instant case was unusual. MPS had prosecuted to protect a substantial income stream for the Football Association Premier League Ltd (FAPL), both Divisional Court hearings had been conducted in a manner indistinguishable from a hearing in the Chancery Division or the Court of Appeal Civil Division in which substantial sums were in issue, and it was very far from a typical appeal against conviction for a summary offence;

(iii) The court was uneasy with a prosecution being brought under s.297(1) of the Copyright, Design and Patents Act 1988 where, as in the present case, establishing an essential element of the offence was dependent on compatibility with EC law;

(iv) The appropriate forum to challenge M’s maintained reliance on legal advice was in the civil courts;

(v) It was hard to believe that a public prosecutor, concerned that a defendant should not be wrongly prosecuted, would resist an application for a reference to the ECJ submitting, as the MPS did, that such a reference was unnecessary and that the court could confidently reject M’s case on EU law;

(vi) MPS conceded that the finding of dishonesty against M could not stand if the geographical restriction imposed on the use of her decoder card were found to be unlawful and unenforceable as a matter of EU law; accordingly,

(vii) Those circumstances justified the application of the civil costs regime.

 

  1. In the case of Regina (Virgin Media Ltd) v Munaf Ahmed Zinga [2014] EWCA Crim 1823 the private prosecutor, Virgin, applied for the costs of the prosecution to be paid from central funds under s.17 of the POA 1985. Giving judgment Lord Thomas CJ laid down the principles to be followed in determining such applications:

(i) In determining the first question, namely whether a person, whether it be a corporate body or private individual, has acted reasonably and properly in instructing the solicitors and advocates instructed, the court will consider what steps were taken to ensure that the terms on which the solicitors and advocates were engaged were reasonable. It was submitted on behalf of the Interveners that they do not pursue private prosecutions lightly, but only where state prosecuting authorities are unwilling to prosecute or where the nature of the case makes it inappropriate; as this is the position of highly responsible industry bodies;

(ii) In any significant prosecution the private prosecutor would be expected properly and reasonably to examine the competition in the relevant market, test it and seek tenders or quotations before selecting the solicitor and advocate instructed;

(iii) It will rarely, if ever, be reasonable in any such case, given the changes in the legal market to instruct the solicitors and advocates without taking such steps. That will be highly material on all future applications;

(iv) In determining whether the costs which are charged are proper and reasonable in a criminal case, the court will also have regard to the relevant market and the much greater flexibility in the way in which work is done;

(v) The court may also have regard to the steps taken to involve State prosecuting authorities; and,

(vi) The court will also have regard to the Guidance given by the Ministry of Justice.

 

  1. In the case of R (on the application of Aisling Hubert) v Manchester Crown Court v Dr Prabha Sivaraman [2015] EWHC 3734 (Admin) the private prosecutor sought a judicial review of the decision of the Crown Court judge to award costs against her under section 19 of the POA 1985 following the intervention of the CPS and the discontinuance of her prosecution. Refusing her application the court observed that:

(i) Costs decisions under this provision, as under most others, have a discretionary element which calls for the consideration of a myriad of factors, which are case specific.

(ii) Ordinarily a prosecutor should expect to have to bear the costs of a defendant in criminal proceedings where, on proper analysis, the prosecution never had any prospect of success and thus should never have been brought.

(iii) The application of the test formulated by Fulford J (as he then was) in Bentley Thomas v Wingfield [2013] EWHC 356 (Admin): “The core issue on this appeal, in my view, is whether the prosecution ever stood any realistic chance of success and whether, in that sense, it was a reasonable and proper prosecution.” and applied in Evans v SFO [2015] EWHC 263 will determine the outcome in most such applications.

 

  1. In the case of Darroch and another v Football Association Premier League Ltd [2016] EWCA Civ 1220 the Court of Appeal Civil Division determined that the case of Murphy (above) had been wrongly decided in relation to jurisdiction:

(i) In Murphy the Divisional Court proceeded by way of concession as to jurisdiction and therefore dealt with the substantive argument, spelling out a test of exceptionality:

(ii) The Divisional Court has no power under s.51 of the 1981 Act to make the order for which the appellants contended in that case in respect of the costs below:

(iii) The section does not empower the High Court, on an appeal by way of case stated, or a claim for judicial review that seeks to quash convictions, to make a civil costs order in respect of costs incurred in the underlying criminal proceedings in the Crown Court or magistrates’ court. These are not “costs of and incidental to” the proceedings in the High Court. The conclusion which confirmed the power of the High Court proceeded on a concession relating to s.51 which was wrongly made.

  1. In the case of The Queen on the Application of David Haigh v City of Westminster Magistrates’ Court (Sitting at West London Magistrates’ Court) v Mr Hisham Al Rayes, Mr Jinesh Patel, Mr Peter Gray [2017] EWHC 232 (Admin) Mr Haigh sought a judicial review of the decision of the District Judge to award costs against him under s.19 of the POA following his applications for summonses against the three interested parties. Giving judgment against him the court made the following observations:

(i) The judge had been entitled to find that the claimant’s application to instigate a private prosecution was an “improper act” within the meaning of s.19, Evans v Serious Fraud Office [2015] EWHC 263 (QB) and R. v Cornish (Errol) [2016] EWHC 779 (QB) applied;

(ii) The law had to guard against inadvertently discouraging people from bringing private prosecutions out of a fear of adverse costs consequences;

(iii) Those bringing such prosecutions had to conform to the highest standards; as “ministers of justice”, they were subject to the same obligations as public prosecutors, v Zinga (Munaf Ahmed) [2014] EWCA Crim 52 followed and R. v Belmarsh Magistrates Court Ex p. Watts [1999] 2 Cr. App. R. 188 applied. They enjoyed a wide and independent prosecutorial discretion, but would almost always have a personal interest in the outcome of the case;

(iv) They would not be liable for costs merely because the prosecution failed or was withdrawn;

(v) This claimant’s decision to start a private prosecution had been strikingly inappropriate and amounted to a clear and stark error, as evidenced by his abandonment of the applications.

 

  1. From that analysis of the above cases it is submitted that the following principles may be derived:

(i) Prosecutions and appeals in criminal cases are subject to the criminal costs regime;

(ii) In determining an application for costs from central funds the court will expect the private prosecutor to seek tenders or quotations before selecting the solicitor and advocate instructed and ensure that steps were taken to ensure that the terms on which the solicitors and advocates were engaged were reasonable;

(iii) Whilst it has not (yet) been suggested that the defendants to a private prosecution ought to take similar steps before instructing solicitors and advocates, defendants ought to bear in mind that all costs must be reasonable and proportionate;

(iv) A prosecutor should expect to have to bear the costs of a defendant in criminal proceedings where, on proper analysis, the prosecution never had any realistic chance of success and whether, in that sense, it was a reasonable and proper prosecution;

(v) A private prosecutor would not be liable for costs merely because the prosecution failed or was withdrawn; and most importantly,

(vi) Private prosecutors are subject to the same obligations as public prosecutors and must conform to the highest standards; as “ministers of justice”.


Brian O’Neill QC

Sarah Przybylska