Horner, R (on the application of) v Director of Public Prosecutions

Where an appeal rests on a wholly technical and meritless defence, the appellant should ordinarily bear the prosecution’s costs, even if an earlier hearing produced a procedural success, such as remission of an inadequate case stated to the magistrates. The relevant question is whether the appeal was justified and whether the costs were consequences of pursuing it. The public should not bear costs arising from an appeal which should never have been commenced.

The claimant appealed in proceedings arising from a case stated by magistrates. At an earlier hearing, the court held that the case stated was inadequate and remitted the matter to the magistrates to correct the deficiency. The appeal was subsequently no longer pursued and had been dismissed.

The remaining issue was the respondent’s application for £3,238 in costs. The claimant argued that a substantial part of the costs related to the earlier procedural hearing and should not be recoverable because the deficiency was attributable to the magistrates.

1. The appeal was no longer pursued and was dismissed. The remaining issue concerned the respondent’s costs application.
2. The court rejected the submission that costs should be reduced because part of the expenditure related to the hearing at which the inadequate case stated was identified and the matter was remitted to the magistrates.
3. The appeal involved a purely technical defence which had been unsuccessful before the magistrates and was devoid of merit. There had been no justification for commencing the appeal.
4. A party who pursues such a point must expect to bear the consequences of taking up court time, even where an interlocutory or procedural hearing has produced a limited success. The public should not bear costs resulting from an appeal which should never have been brought.
5. Mr Justice McCombe agreed, adding that withholding the prosecution’s costs would conflict with the overriding objective of the Criminal Procedure Rules. Mrs Justice Dobbs agreed with the other judges.
6. The prosecution was awarded £3,238 in costs.

• High Court (Administrative Court): The appeal was no longer pursued and was dismissed. The respondent was awarded £3,238 in costs.
• The court had previously remitted the case stated to the magistrates so that an identified deficiency could be corrected.