Holloway v Harrow Crown Court & Others [2019] EWHC 1731 (Admin)

This was a claim for judicial review challenging the order made in the Crown Court to pay the costs of interested parties in a private criminal prosecution for blackmail brought against them by the claimant. The Crown Prosecution Service took over the case at an early stage and it was discontinued, the interested parties contended it should never have been brought and that the claimant failed to disclose important documents undermining the prosecution case.

The judge found that the evidence never provided a realistic prospect of conviction and concluded that the commencement and continuation of the prosecution constituted an improper act for the purpose of the Regulations and ordered the claimant to pay the interested parties’ costs of the proceedings. The claimant argued this was wrong in law and that the judge failed to deal with the real gravamen of the prosecution case.

“Unfortunately, it has to be said that the judge did not really engage with either party’s real case. While he was right to say, as a general proposition, that until contracts are exchanged there is no binding agreement for the sale of a house and that either party is free to walk away, that did not address Mr Holloway’s point that a demand for an additional payment of £70,000 in cash, in small notes, coupled with a threat to retain over £90,000 of Mr Holloway’s money until the house was sold, which payment was not to feature in the formal conveyance prepared by the parties’ solicitors, was an unwarranted demand.” To say this was “robust negotiations” misses the point.

The judge did not address the interested parties’ case either and made no finding as to bad faith as alleged. Nor did he refer to how the evidence that was not disclosed until later affected the case.

Held: the judge’s conclusion could not stand, and the Court went on to consider the issues. The decision that there was not a reasonable prospect of conviction was correct, the documents that were not initially disclosed contradicted his evidence. A private prosecutor also has a duty to undertake an independent and objective analysis of the evidence before commencing proceedings. It was a clear and stark error to commence the prosecution, it was an improper act within the meaning of s19.

The Court concluded that there was an improper act by the claimant as a result of which the interested parties incurred costs. Although the judge’s reasoning cannot be supported, he was right to conclude that there was an improper act and the only way in which the Crown Court’s discretion could properly have been exercised was by making an order for payment of costs. The case was remitted to the Crown Court to determine the amount of the interested parties’ costs.