R (Kay) v Leeds Magistrates’ Court [2018] EWHC 1233 (Admin), [2018] 4 WLR 91, [2018] 2 Cr App R 27

Transcript

The claimant’s application for judicial review was allowed, and summonses issued by Leeds Magistrates’ Court were quashed. The court made an Order setting out a timetable for submissions in respect of costs.

The Interested Party (IP), Karwan, initially argued in his response that a deemed costs order had been made, he withdrew that argument and the Court considered his submissions which were as follows:

• The Court should take into account, as a factor, that without reasonable excuse (and thus in breach of paragraph 9.5 of Practice Direction 44) the Claimants failed to serve a costs schedule 24 hours prior to the judicial review proceedings.
• The costs of the Magistrates’ Court proceedings should be assessed and dealt with by the Magistrates’ Court.
• Only a proportion of the Claimants’ judicial review costs should be recoverable as not all their arguments were successful.
• The judicial review costs that are recoverable should be paid from central funds and not by the Interested Party.
• Costs should be assessed on the standard basis, not on the indemnity basis.
• Some of the costs and disbursements claimed were neither reasonably incurred nor reasonable in amount.

The High Court found:

(1) The Claimant accepted they failed to serve a costs schedule prior to the JR proceedings but argued there was no prospect of the Court dealing with everything on the same day and therefore they had a reasonable excuse for not filing a schedule in advance of the hearing. Given the complexity of the case, it was held that it was unlikely that costs would be considered on the day, so no consequences followed from the failure to serve the schedule. No decision was made as to whether the Claimant had a reasonable excuse, but there was no justification for any sanction on this ground.

(2) The IP’s argument was misconceived, by virtue of s51 of the Senior Courts Act 1981 or s66 of the Courts Act 2003 the High Court had the power to order costs for both proceedings and there was no good reason not to.

(3) The Claimants were clearly the successful party in the proceedings; there was no warrant for reducing the costs payable on this ground. They sought the quashing of the summonses, and a decision of the District Judge and that was what they achieved, it did not matter that not every argument by them was successful.

(4) The IP argued that it was the District Judge’s failure which resulted in the JR proceedings so he should not have to pay the costs, or, in the alternative, he should only be liable for a proportion of the costs. These submissions were also misconceived. The IP was the driving force in obtaining the summonses in significant breach of his duty of candour, and in persuading the District Judge to act as she did.

(5) The private prosecution was commenced on foot of culpable breaches of the fundamental duty of candour, and then the IP sought to continue the prosecution on a wholly inappropriate basis. There was “no hesitation in concluding that costs should be assessed on an indemnity basis.”

(6) The claim for costs including VAT was £306,783.42 for both the Magistrates’ Court and High Court proceedings. The IP addressed a number of aspects he asserted were excessive, including counsel’s fees and solicitor’s hourly rates, and the hours claimed in relation to the claimant’s costs schedules. The Court exercised their discretion to assess costs summarily in the total amount of £250,000. The figure “looked at robustly and in the round” did justice to both parties.