Brewer, R (on the application of) v Supreme Court Costs Office

Where an acquitted defendant claims reimbursement from central funds for expenses incurred in preparing a criminal defence, the assessment must focus on whether the expenditure was properly incurred and whether the work was reasonably done. The identity of the person who performed the work is not decisive. A claim is not excluded merely because solicitors and counsel were also paid. Where separate claims may overlap, they should be assessed together so that the assessor can determine what work was actually and reasonably done, and by whom. A broad or arbitrary allowance based principally on another solicitor’s bill may amount to a real injustice warranting intervention under the court’s inherent jurisdiction.

The claimant, who had been acquitted after a Serious Fraud Office prosecution, held a defendant’s costs order under Prosecution of Offences Act 1985, section 16. Solicitors and counsel had been paid from central funds. The claimant separately claimed substantial fees and expenses paid to a foreign lawyer who had assisted with preparation of the defence.

The determining officer rejected that claim. On appeal, the Costs Judge allowed £25,000, principally for pre-charge work, without undertaking a detailed review of the material or assessing the solicitor’s and claimant’s claims together. The claimant sought relief under the court’s inherent jurisdiction, contending that the assessment had not been conducted in accordance with the statutory scheme.

1. Application allowed to the extent of remittal. The High Court’s inherent jurisdiction over the Costs Judge’s decision is narrow. It is available only in very rare cases to cure a real injustice, as recognised in R v Supreme Court Taxing Office ex parte John Singh & Co [1997] 1 Costs LR 49. The court declined to add a gloss to that test by importing the jurisprudence governing second appeals or appeals from specialist tribunals.
2. Under section 16(6) of the Prosecution of Offences Act 1985 and Regulation 7 of the Costs in Criminal Cases (General) Regulations 1986, the assessor must determine whether the expenditure was properly incurred in the proceedings and whether the work was actually and reasonably done. Regulation 7(2) requires consideration of all relevant circumstances, including the nature, importance, complexity or difficulty of the work and the time involved. The focus is on the work and its reasonableness, not the status or identity of the person who performed it.
3. The principle in The Queen v Bedlington Magistrates’ Court, ex parte Wilkinson (unreported, CO/0900/99, 21 October 1999) was accepted. Payment of solicitors’ costs and disbursements does not necessarily exclude a further claim by the defendant for expenses, including expenditure that might ordinarily have been claimed as a solicitor’s disbursement. The question remains whether the particular expense was properly incurred.
4. Once the Costs Judge accepted the claimant’s claim in principle, he was required to investigate the work in detail. Limiting the assessment essentially to pre-charge work and using the solicitors’ bills as the starting point did not establish the extent or significance of duplication, or the contribution made by the additional lawyer. The statutory task could not fairly be performed without assessing the two claims together. The earlier assessment of the solicitors’ bill could not create presumptions against the claimant’s claim.
5. The matter was remitted for reassessment. The court expressed no view on the amount that should ultimately be allowed. Practitioners, determining officers and Costs Judges were given guidance to present and assess overlapping claims together; amendment of the Regulations or a practice direction was suggested as a desirable longer-term solution. Mr Justice Mitting agreed with Lord Justice Maurice Kay’s reasons.

The claimant appealed to the Costs Judge after the determining officer rejected the claim. The Costs Judge allowed £25,000. The High Court, exercising its inherent jurisdiction, found a real injustice in the manner of assessment and remitted the matter for reassessment.