Budgens Stores Ltd, R (on the application of) v HM Courts Services, Sussex Area

Judicial review of a criminal costs assessment is exceptional. Permission should not be granted merely because a party disagrees with the amount allowed. The claimant must show an arguable case that the assessment proceeded on a wrong principle or was perverse. Under Costs in Criminal Cases (General) Regulations 1986, the assessment requires consideration of whether work was actually done or expenditure actually incurred, and whether it was reasonably done or incurred. What is reasonable commonly involves judgment. Any substantive hearing should be confined to questions of principle and should not become a detailed re-assessment of every item.

The claimant had been acquitted of criminal charges brought by Rother District Council and obtained a Defendant’s Costs Order under section 16 of the Prosecution of Offences Act 1985. Its bill claimed £63,704.99, but the taxation officer allowed £25,134.80 after provisional taxation and further representations.

The claimant sought permission to apply for judicial review, alleging that the taxation officer had failed to apply, or had perversely applied, regulation 7 of the Costs in Criminal Cases (General) Regulations 1986. The central issue was whether the challenge raised an arguable question of unlawful principle rather than a mere disagreement with the assessment.

1. Permission granted. The claimant’s challenge was properly arguable, having regard to the complexity and seriousness of the criminal proceedings and the extensive reductions made to particular items and to the bill overall.
2. The President of the Queen’s Bench Division stated that judicial review of a costs assessment would normally be entertained only exceptionally. The claimant would have to establish that the assessment proceeded on a wrong principle or was perverse.
3. The governing principle was found in regulation 7(1) of the Costs in Criminal Cases (General) Regulations 1986. It required consideration of whether the work had actually been done or the money actually expended, and whether the work was reasonably done or the expenditure reasonably incurred. Reasonableness was often a matter of judgment.
4. The grant of permission did not signal that ordinary disagreements about costs would be entertained. Any substantive hearing was to be confined to questions of principle and was not to descend into a time-consuming examination of every detail of the bill.
5. The claimant was directed to file a skeleton argument of no more than ten pages within 21 days. The defendants were to respond within 28 days thereafter. The hearing was limited to two hours, costs were reserved, and the claimant was to notify the appropriate department of the Ministry of Justice.

The judgment records that a single judge had previously refused permission on paper, considering the matter to be a disagreement rather than an arguable case of unlawfulness. On renewal, the Administrative Court granted permission.