Costs against Public Authorities in Non-CPR Civil Proceedings in the Magistrates’ and Crown Courts – Heads They Win, Tails You Lose

Added on by Becket Chambers

R (on the application of Perinpanathan) v City of Westminster Magistrates’ Court and Another [2010] EWCA Civ 40 is the current leading authority on the question of costs in civil matters brought in the Crown or Magistrates’ Court by a public authority. It applies and extends the principles in City of Bradford Metropolitan DC v Booth [2000] 164 JP 485 and sets aside the usual civil presumption that costs follow the event when the non-public party is successful, instead creating a test of reasonableness. Broadly speaking, a case brought by a public authority was deemed to be dissimilar from a case between two independent parties. The public authority will often have a statutory duty to bring or defend such litigation, and will not have the opportunities to make or receive offers of settlement that an independent party might have. Lord Bingham also raised the consideration in City of Bradford that there is a need to encourage public authorities to make and stand by reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged. This drew on the judgment of Roch J in the licensing case of R v Totnes Licensing Justices, ex p Chief Constable of Devon and Cornwall [1990] 156 JP 587 where it was stated that

It [is] wrong for the justices to treat this matter as civil proceedings between two private litigants and to ignore the factor urged upon them by the solicitor appearing for the police authority, namely, that the police have a function which they are required to perform.

In Perinpanathan the approach was set out to be, in short, that:

    1. Where the approach applies, and the party opposing the order sought by the public authority has been successful, in relation to costs the starting point and the default position is that no order should be made.
  1. A successful private party may be awarded costs if the conduct of the public authority in question justifies it.

It is worth, at this point noting the law. Magistrates’ Courts are able to award costs pursuant to Section 64 of The Magistrates’ Courts Act 1980:

  • on the hearing of a complaint, a magistrates’ court shall have power in its discretion to make such order as to costs – (a) on making the order for which the complaint is made, to be paid by the defendant to the complainant; (b) on dismissing the complaint, to be paid by the complainant to the defendant, as it thinks just and reasonable

The Crown Court is able to award costs pursuant to Section 12 of the Crown Court Rules 1982, Section 12(1) ends:

… no party shall be entitled to recover any costs of any proceedings in the Crown Court from any other party to the proceedings except under an order of the Court. [my emphasis]

Section 12(2) states:

Subject to section 4 of the Costs in Criminal Cases Act 1973(b) and to the following provisions of this Rule, the Crown Court may make such an order for costs as it thinks just

The Perinpanathan approach creates the test of unreasonableness; if the conduct of the public authority is unreasonable, or the defence or bringing of the proceedings is unreasonable, then costs can be awarded, otherwise the default position is that costs are not available to a private party.

Since Perinpanathan the courts have confirmed that the approach to public law costs in civil proceedings in the Magistrates’ and Crown Courts should be extended from the original licensing proceedings to cash forfeiture proceedings (as per Kialka v Home Office [2015] EWHC 4143 (Admin). It was noted in Perinpanathan that whether the principle should be applied in other contexts will depend on the substantive legislative framework and the applicable procedural provisions. Following Kialka though, it seems likely that the approach is applicable in all administrative matters in the Crown and Magistrates’ Court involving a public authority. There are common threads in these types of proceedings;

  1. They are usually appeals by individuals against public bodies, be it the Home Office, the National Crime Agency or the local Chief Constable of Police.
  2. They utilise some form of civil procedure in courts that usually deal with criminal and/or family procedure, and apply the civil standard of proof (that of the balance of probabilities). They are not, however, proceedings to which the CPR applies.
  3. Costs are prima facie recoverable by either party.

It is, therefore, highly likely that Perinpanathan applies, for example, to firearms licence appeals pursuant to the Firearms Act 1968, which shares the same common threads and would fall under the Crown Court Rules. It is also likely that the approach will apply in most similar proceedings.

The principle for litigants is that their costs are highly likely to be irrecoverable unless they can show unreasonableness on the part of the authority.

Becket Chambers is able to provide advice on all types of civil proceedings in the Magistrates’ and Crown Courts to legal professionals, or to the public on a direct access basis. Any enquiries should be directed to clerks@becket-chambers.co.uk.