Brewer v The Supreme Court Costs Office

The High Court’s inherent jurisdiction may exceptionally be used to quash a costs determination where an administrative error has caused a breach of natural justice and left the claimant facing a real injustice. The jurisdiction is sparingly exercised. A claimant must ordinarily have been deprived of a hearing to which he was entitled, with no adequate alternative remedy. Where the determination is quashed, the costs claim should be remitted for fresh determination in accordance with the governing statute and regulations. The court should not decide what the fresh assessment ought to yield.

The claimant sought, under the court’s inherent jurisdiction, to quash parts of a Costs Judge’s decision concerning reimbursement from central funds of fees and expenses paid to an American attorney during a criminal investigation and prosecution. A previous Divisional Court decision had remitted an earlier determination for reconsideration. The subsequent Costs Judge made a fresh decision without the oral hearing which the claimant understood would take place.

The defendant accepted that an administrative error had caused a breach of natural justice. The central issue was whether the absence of a hearing justified exercising the inherent jurisdiction, notwithstanding alternative procedural routes and a related statutory appeal.

1. The claim was allowed to the extent specified in the order. The relevant parts of the Costs Judge’s redetermination were quashed under the inherent jurisdiction of the High Court.
2. The inherent jurisdiction, recognised in R v Supreme Court Taxing Office ex parte John Singh & Co [1997] 1 Costs LR 49, is exceptional and may be exercised only where refusal would cause a real injustice. The fact that the same claimant had previously invoked the jurisdiction did not prevent its exercise where the present breach was distinct.
3. The claimant was entitled to make oral submissions on the detailed work and expenses claimed. This was particularly important because the applicable regulations required assessment of work actually and reasonably done and required doubts about reasonableness to be resolved against the applicant.
4. The failure to hold the expected hearing resulted from administrative error and was not the claimant’s fault. The availability of alternative routes did not make the claim unnecessary, particularly since the statutory appeal did not cover the pre-certificate matters and the claimant had acted reasonably in pursuing the statutory appeal.
5. The claim was remitted to the Senior Costs Judge to nominate himself or another Costs Judge to determine afresh the costs payable under the defendant’s costs order. The fresh assessment was to be conducted in accordance with the Prosecution of Offences Act 1985 and the Costs in Criminal Cases (General) Regulations 1986. The court expressed no view on the amount which should ultimately be awarded.

Divisional Court: In R (Brewer) v Supreme Court Costs Office [2006] EWHC Civ 1955 (Admin), reported at [2007] 1 Costs LR 20, the earlier Costs Judge’s determination was quashed and the matter remitted.

High Court (Queen’s Bench Division): The present Part 8 claim succeeded. The relevant parts of the subsequent Costs Judge’s determination were quashed and remitted for fresh determination.