Ebbnie, R (on the application of) v Surrey Police

Where legislation confers a discretion to award costs according to what is just and reasonable, the statutory words govern the decision. Guidance in City of Bradford Metropolitan District Council v Booth should be taken into account, but it does not create a separate legal test. Once unreasonable delay by a public authority has been found, the decision-maker must explain why costs properly incurred thereafter should not be awarded. A costs decision that confines recovery to isolated hearings, without addressing the consequences of the established delay, may be irrational and should be reconsidered.

The claimant challenged a decision of magistrates concerning costs after Surrey Police withdrew an application to forfeit cash detained from her. The magistrates found that the original seizure and the commencement of the forfeiture proceedings were reasonable, but that the police had caused unreasonable delay by failing to attend two hearings. They awarded only the costs of counsel’s attendance on those dates.

The claimant argued that the magistrates had misunderstood the applicable costs approach, failed properly to consider the guidance in City of Bradford Metropolitan District Council v Booth, and conflated detention with forfeiture. The central issues were whether the magistrates had exercised their statutory discretion lawfully and whether their reasoning adequately explained the limited costs award.

1. The appeal succeeded to the extent indicated. The matter was remitted to the Justices unless the parties agreed the proper amount of costs.
2. The statutory words requiring an award of costs that was just and reasonable governed the exercise of the magistrates’ discretion. City of Bradford Metropolitan District Council v Booth did not prescribe a separate test. Nevertheless, the magistrates were correct to have regard to that decision and its guidance concerning the competing effects of financial prejudice to the claimant and the need to avoid discouraging public authorities from making reasonable decisions in the public interest.
3. The magistrates’ reasoning was irrational on its face. They had distinguished neither the original seizure and continued detention from the later forfeiture proceedings nor explained the delay before withdrawal of the forfeiture application.
4. Having found that unreasonable delay had occurred by 6 December 2005 or 3 January 2006, the magistrates could not logically limit recovery to counsel’s attendance at those two hearings without explaining why later costs properly incurred should be excluded. They were required to identify when the unreasonable delay arose and then determine what costs were properly incurred after that date and were just and reasonable to award.
5. The claimant was awarded the costs of the Administrative Court appeal, summarily assessed at £3,400 including VAT, payable within 28 days.

• Magistrates’ Court: Following withdrawal of the forfeiture application, the Justices awarded £415.85, limited to counsel’s attendance at two hearings.
• High Court (Administrative Court): The appeal by way of case stated succeeded to the extent that the costs decision was remitted for reconsideration.