Grimes v Crown Prosecution Service

When exercising the costs discretion under the Civil Procedure Rules, the court must begin with the general rule that the unsuccessful party pays the successful party’s costs. It must then consider the matters specified in rule 44.3(4) and all the circumstances.

A public authority has no special litigation status exempting it from that approach. Its functions may inform whether its conduct was reasonable, but reasonable parties who proceed to trial ordinarily do so at their own risk as to costs. Where the successful party reasonably pursued the claim and the unsuccessful party made no protective offer, costs should ordinarily follow the event.

The Crown Prosecution Service sought to enforce a confiscation order against the proceeds of a matrimonial home formerly owned in the husband’s sole name. His former wife intervened, claiming half of the proceeds through a beneficial interest or, alternatively, ancillary relief. Wilson J accepted her evidence and awarded her half of the proceeds but made no order as to costs.

The intervener appealed only against the costs order. The central issue was whether the judge had exercised his discretion from the correct starting point under rule 44.3 of the Civil Procedure Rules, and whether the Crown Prosecution Service’s public functions justified departing from the ordinary rule that costs follow the event.

1. Appeal allowed unanimously. The order making no provision for costs was replaced by an order that the appellant recover her costs before Wilson J from the Crown Prosecution Service.

2. Lord Justice Brooke held that the judge had exercised his discretion in the wrong sequence. Rule 44.3 of the Civil Procedure Rules required him to begin with the general rule that the unsuccessful party should pay the successful party’s costs. He should then have considered the matters listed in rule 44.3(4) and all the circumstances. Instead, he began with the Crown Prosecution Service’s position as a public body and sought reasons why the successful intervener should displace an assumed rule protecting that body from costs.

3. Because the discretion had been approached incorrectly, the Court of Appeal exercised it afresh. The appellant had needed to come to court, no offer had been made which rendered the hearing unnecessary, and the judge ultimately accepted the case advanced in her affidavit. Although the Crown Prosecution Service could reasonably require the claim to be tested, its public responsibilities did not entitle it to make no offer and leave a successful claimant to lose much of the benefit recovered through irrecoverable legal costs.

4. Lord Justice Sedley agreed that the Crown Prosecution Service had no special litigation position or status. The nature of its functions and the purpose of confiscation orders could support an argument that its stance was reasonable, but the Crown appeared as a litigant like any other. Where both parties reasonably continued to a hearing, each proceeded at its own risk as to costs. The appellant had disclosed the evidence on which she relied, introduced no decisive late material, and succeeded. The ordinary costs consequence therefore followed.

5. Mr Justice Evans-Lombe agreed with both judgments. The appeal was allowed with costs, subject to detailed assessment.

1. Court of Appeal (Civil Division): The appeal was allowed. The no-order-as-to-costs provision was replaced by an order requiring the Crown Prosecution Service to pay the appellant’s costs before Wilson J.
2. High Court, Administrative Court and Family Division: Wilson J upheld the appellant’s entitlement to half of the disputed proceeds but made no order as to costs between the parties.