Bentley -Thomas v Winkfield Parish Council

Costs should not be ordered against a private prosecutor merely because the prosecution failed, the prosecutor lost on the evidence, or the defendant incurred ordinary investigative costs. The relevant question is whether, viewed at the time proceedings were instituted and conducted, the prosecution was unnecessary or improper and had no realistic prospect of success. Courts should allow individuals effective access to the statutory nuisance procedure, recognising that litigants in person may lack technical expertise. A prosecution supported by an arguable factual case and evidence which could properly be called is not rendered improper by the prosecutor’s wish to pursue other remedies or by the eventual rejection of that evidence.

The appellant brought proceedings in the East Berkshire Magistrates’ Court under section 82 of the Environmental Protection Act 1990, alleging statutory noise nuisance from recreational equipment operated by the respondent parish council. The information was dismissed after a contested hearing. The District Judge ordered the appellant to pay £18,008.10 in the respondent’s costs under section 19(1) of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986.

The appellant appealed by way of case stated. The issue was whether the District Judge had been correct in law to conclude that the prosecution was unnecessary or improper.

1. Appeal allowed. The order requiring the appellant to pay the respondent’s costs was quashed. The District Judge had been wrong in law to order those costs.

2. Under section 19(1) of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986, the question was whether the respondent’s costs resulted from an unnecessary or improper act or omission by the appellant. The approach in Director of Public Prosecutions v Denning [1991] 2 QB 532 applied: improper conduct includes conduct that would not have occurred had the party conducted the case properly, but the assessment must be made in context.

3. Following Suffolk County Council v Rexmore Wholesale Service Limited [1994] 159 JP 390, the court had to assess the relevant decisions at the time proceedings were instituted, rather than by applying hindsight based on knowledge obtained later.

4. The appellant had complied with the statutory procedure, brought an arguable case, called local residents and an expert witness, and pursued the proceedings in a conventional manner. The fact that the District Judge preferred the respondent’s evidence did not, by itself, show improper conduct. Nor did the appellant’s possible intention to bring civil proceedings, her knowledge of noise recordings, or her insistence on substantial remedial measures make the prosecution improper.

5. The evidence included an earlier indication from the local authority that a statutory noise nuisance existed and a later statement that the issue remained unresolved. The expert evidence was not so obviously unreliable that it should not have been called. The prosecution was therefore not self-evidently without merit or without any realistic prospect of success. The costs decision was unreasonable in the Wednesbury sense.

• East Berkshire Magistrates’ Court: dismissed the appellant’s statutory nuisance information after a contested hearing and ordered her to pay £18,008.10 in the respondent’s costs.
• High Court (Administrative Court): on appeal by way of case stated, quashed the costs order and answered that the District Judge had not been correct in law.