Director of Public Prosecutions v Bury Magistrates' Court

A costs order under section 19 of the Prosecution of Offenders Act 1985 is distinct from a wasted costs order against a legal representative under section 19A. The former is an inter partes order and requires ordinary fairness, rather than the prescribed procedure applicable to a section 19A order. A clear breach of a court direction, causing an adjournment, may justify an order in principle even where the party seeking costs also failed to alert the court or prosecution to the breach. The amount recoverable must reflect loss caused by the relevant breach. The court may take into account the receiving party’s own serious procedural default when assessing causation and quantum.

The Crown Prosecution Service sought judicial review of a £6,000 costs order made by Bury Magistrates’ Court after a criminal trial was adjourned because prosecution video evidence had not been served in accordance with a court direction. The order was described as a wasted costs order, but the issue was whether it was properly understood as an inter partes order under section 19 of the Prosecution of Offenders Act 1985.

The defendants’ solicitors had filed a certificate of readiness and had not alerted the prosecution or court to the missing evidence. The defendants later pleaded guilty. The central issues were the legal character of the order, procedural fairness, and whether the solicitors’ own failure to comply with the Criminal Procedure Rules affected the order or the amount recoverable.

1. Disposition. The application for judicial review was dismissed. The order in principle was not quashed, but the question of quantum was reopened and remitted to the District Judge to decide what sum, if any, should be paid.
2. The order was made under section 19, not section 19A, of the Prosecution of Offenders Act 1985. It was an inter partes costs order for costs incurred through an unnecessary or improper act or omission by another party. The detailed procedure and three-stage test applicable to wasted costs orders against legal representatives under section 19A did not apply.
3. For a section 19 order, ordinary fairness was required. That requirement was satisfied because the prosecution had several months to prepare its response, had been invited to make representations at the hearing, and had not effectively opposed the order.
4. The prosecution’s failure to comply with a clear disclosure direction was negligent and qualified under section 19. However, the solicitors representing the defendants had also breached the Criminal Procedure Rules by filing a certificate of readiness and failing to notify the prosecution or court of the missing evidence. The court was not required to raise that point of its own motion when the prosecution had failed to raise it on several occasions.
5. On assessment of quantum, the receiving party had to establish loss caused by the prosecution’s breach. The District Judge should consider the solicitors’ and defendants’ own procedural breaches, including whether timely notification would have avoided the adjournment and whether any material loss was caused by the prosecution.

• High Court (Administrative Court): judicial review of the Bury Magistrates’ Court costs order was dismissed. The order in principle remained, but quantum was remitted to the District Judge for assessment.