Bernard v Dudley Metropolitan Borough Council

A prosecuting authority in health and safety proceedings should provide clear particulars identifying the allegations and the evidence relied upon. Informations and prosecution statements alone may be insufficient where they leave the defendant and the court to conduct a paper chase. Where judicial review becomes academic after the authority supplies the particulars, the court may still determine costs by considering which party would probably have succeeded. A high degree of unreasonable conduct, including refusal to comply with clear authority and refusal to agree costs, may justify an order for indemnity costs.

Dudley Metropolitan Borough Council prosecuted the claimant for alleged offences under the Health and Safety at Work Act 1974. The claimant repeatedly sought further particulars from the prosecuting authority and the Dudley Magistrates' Court, but the applications were refused. Following an order by Lightman J, the authority supplied a prosecution schedule, making the judicial review claim academic. The authority nevertheless disputed liability for costs. The issue before the Administrative Court was whether the claimant should receive his costs and, if so, on what basis.

1. The court had power to make a costs order after the substantive judicial review proceedings had become academic, where the parties had not agreed costs. Applying the approach in Boxall v Waltham Forest Borough Council [2000] AER D 2445, the court considered which side would probably have succeeded had the substantive issue been contested.
2. A prosecuting authority commencing health and safety proceedings should provide, at the outset, particulars making clear the case alleged and the evidence relied upon. The R v Friskies Pet Care UK Ltd [2002] 2 Cr.App.R.(S.) 401 recommendation that the prosecution identify the relevant facts and aggravating features supported that conclusion.
3. The prosecution papers did not sufficiently identify how the allegations concerning removal of residents, staffing and barriers were to be proved. The claimant had therefore been justified in seeking judicial review. The authority would have lost the substantive proceedings had it continued to refuse the particulars.
4. Warburton-Pitt [1991] 92 Cr.App.R 136 did not justify the authority’s position. The court regarded the law as having moved on, and treated the later health and safety guidance as requiring more than service of summonses and statements.
5. The authority’s conduct was unreasonable to a high degree. It had refused to comply with clear authority, delayed the criminal trial, required two attendances at the Administrative Court, and continued to resist costs after supplying the schedule. The costs of both the judicial review proceedings and the costs hearing were ordered on the indemnity basis, subject to detailed assessment.

The magistrates refused repeated applications for further particulars and adjourned the criminal proceedings pending judicial review. Lightman J subsequently ordered provision of a prosecution statement. The present court determined the consequential costs issue after the judicial review had become academic.