Hubert, R (on the application of) v Manchester Crown Court & Anor

Where a private prosecution had no realistic prospect of success, persistence in pursuing it may amount to an unnecessary or improper act or omission justifying a defendant’s costs order. The absence of evidence or public interest, considered alone, does not invariably require such an order. The court must apply the statutory and procedural three-stage approach: identify the unnecessary or improper conduct, establish that it caused costs, and decide whether discretion should be exercised and in what amount. Costs decisions remain fact-sensitive, but ordinarily a prosecutor should expect to bear the defendant’s costs where proper analysis shows that the prosecution should never have been brought.

The claimant initiated a private prosecution concerning alleged offences under sections 58 and 59 of the Offences Against the Person Act 1861. The prosecution was later stopped by the Director of Public Prosecutions. The interested party, as defendant, obtained an order requiring the claimant to pay £25,000 in costs under section 19 of the Prosecution of Offences Act 1985 and regulation 3(1) of the Costs in Criminal Cases (General) Regulations 1986.

The claimant sought judicial review of that order. The central issues were whether the Crown Court judge had acted unlawfully in treating the prosecution as improper, and whether he had been entitled to take account of the claimant’s abandonment of earlier judicial review proceedings, delay and persistence in pursuing a prosecution unsupported by evidence.

1. The application for judicial review was dismissed. The High Court had jurisdiction to review the costs order because wasted-costs proceedings were ancillary to matters relating to trial on indictment: R (on the application of B) v X Crown Court [2009] EWHC 1149.
2. The Crown Court judge had reasonably concluded that the evidential test for the proposed offences was never met. The claimant possessed no evidence from which a conspiracy under section 58 or section 59 of the Offences Against the Person Act 1861 could properly be inferred.
3. The statutory test under section 19 of the Prosecution of Offences Act 1985, regulation 3(1) of the Costs in Criminal Cases (General) Regulations 1986 and Part 4.1 of the relevant Practice Direction required consideration of: whether there had been an unnecessary or improper act or omission; whether it had caused costs to another party; and whether the court should exercise its discretion to order payment.
4. Applying DPP v Denning [1991] 2 QB 532, “improper” did not require grave impropriety. It covered conduct that would not have occurred had the party conducted the case properly. The approach was restated and approved in Bentley Thomas v Wingfield [2013] EWHC 356 (Admin) and applied in Evans v SFO [2015] EWHC 263.
5. The judge was entitled to find that, after abandoning the first judicial review, the claimant persisted for a considerable period in pursuing a prosecution on a legally unsustainable basis and without evidence capable of supporting conviction. That persistence constituted an improper prosecution. The inference drawn about legal advice was unwise but did not undermine the decision. Costs decisions involved a broad, case-specific discretion, and the order was justified on the facts.

The claim was a judicial review challenge to a costs order made by His Honour Judge Steiger QC in the Manchester Crown Court on 31 March 2015. The High Court dismissed the application and upheld the costs order.