McEwan v National Taxing Team

Costs from central funds are assessed by an objective compensation test. The amount must be reasonably sufficient to cover expenses properly incurred, having regard to prevailing market rates and all relevant circumstances. The assessment is not limited by the public purse and does not provide an indemnity for costs actually incurred. Necessity is not the test. A taxing authority may allow less than the full amount only where special circumstances make full recovery inappropriate. Judicial review of the assessment requires a sufficiently serious error, including irrationality or failure to consider relevant matters.

The claimant had been acquitted in the magistrates’ court and awarded defence costs from central funds under the Prosecution of Offences Act 1985. The National Taxing Team allowed only part of the solicitor’s and counsel’s fees, reducing amounts attributable to seniority, distance, travel and attendance.

He sought judicial review, alleging that the Team had applied the wrong statutory test, acted irrationally and failed to consider relevant matters. The central issues were whether the assessment properly applied section 16 of the 1985 Act and regulation 7 of the Costs in Criminal Cases (General) Regulations 1986.

1. Application dismissed. The National Taxing Team had not applied an impermissible public-purse or necessity test. Reading its decisions as a whole, it had asked what amount was reasonably sufficient to compensate the claimant for expenses properly incurred, as required by section 16(6) of the Prosecution of Offences Act 1985 and regulation 7 of the Costs in Criminal Cases (General) Regulations 1986 (paras [19]–[21]).
2. The assessment was objective. It was not enough that the claimant subjectively regarded experienced and distant representatives as important. The Team was entitled to conclude that less senior counsel from the local bar could have been instructed, and that a local solicitor could attend once attendance was accepted as justified because of late disclosure (paras [21], [26]).
3. The statutory compensation principle requires regard to prevailing market rates and is not confined by the resources available to the public purse. It does not, however, require an indemnity for costs actually incurred. Necessity has no independent role in the regulation 7 assessment (para [19]).
4. The taxing authority must consider all relevant circumstances, including the nature, importance, complexity and difficulty of the work and the time involved. The District Judge’s observation that the case was not overly complicated was relevant but not determinative. The Team was entitled to balance that observation against the claimant’s submissions about the volume and significance of the material (paras [19], [24], [26]).
5. Under section 16(7), now section 16(6A), a lesser amount may be fixed where special circumstances make recovery of the full amount inappropriate. That qualification did not alter the primary compensation assessment in this case (para [19]). The challenge did not meet the high threshold for Wednesbury unreasonableness (para [24]).