Carney v North Lincolnshire Council

Where proceedings in the Magistrates’ Court attract criminal, rather than civil, legal aid, the costs protection in section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 does not apply, even if the proceedings are civil in character. The applicable costs jurisdiction is section 64 of the Magistrates’ Courts Act 1980, not CPR 44.2. The court must decide whether an order is just and reasonable, exercising a genuine discretion and considering the individual’s means. Conduct may be relevant, but serious or unreasonable conduct cannot outweigh an established inability to pay the amount ordered. A full immediate costs order may therefore be unlawful where the court has insufficient regard to the party’s limited financial resources.

The appellant challenged, by case stated appeal, an Antisocial Behaviour Order made by the North Lincolnshire Magistrates’ Court and an order requiring him to pay the respondent’s costs. The court had previously answered three questions concerning the legality, necessity and proportionality of the order in the affirmative, but remitted the matter so that the costs issue could be stated separately.

The amended case asked whether the full costs order was lawful and, having regard to the appellant’s means and conduct, whether it was appropriate and proportionate. The central issue was the statutory basis and proper exercise of the Magistrates’ Court’s costs jurisdiction.

1. The court answered both parts of the fourth question in the negative and remitted the costs issue to the North Lincolnshire Magistrates’ Court for determination.
2. Section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 did not apply. Although the proceedings were civil proceedings, the appellant held a criminal legal aid certificate. They were therefore not “relevant civil proceedings” within section 26(2), and the statutory protection did not arise.
3. The appellant’s suggested analogy with section 26 was rejected. The provision either applied or it did not; it could not be treated as expressing the applicable approach where its statutory conditions were absent.
4. CPR 44.2 did not apply because the Civil Procedure Rules expressly define the proceedings to which they apply, and proceedings in the Magistrates’ Court were not included. Section 64 of the Magistrates’ Courts Act 1980 governed the issue and conferred a discretion to make such costs order as the court considered just and reasonable.
5. The district judge had, despite his initial wording, appreciated that he possessed a discretion. However, he had only limited information about the appellant’s means. The appellant was retired, had no assets, lived on a pension and received weekly credits. Although the judge was entitled to consider the appellant’s conduct, that conduct could not outweigh his financial position and inability to pay the full sum ordered.
6. The respondent was awarded its total costs of the earlier hearing, subject to detailed assessment if not agreed and with enforcement requiring leave. There was no order as to costs for the present hearing, since both parties had contributed to the difficulties concerning the proper costs basis.

• High Court (Administrative Court): On 27 January 2016, the court answered the first three case-stated questions in the affirmative and remitted the matter for amendment so that the legality of the costs order could be considered.
• High Court (Administrative Court): In the present judgment, the court answered both parts of the fourth question in the negative and remitted the costs issue to the Magistrates’ Court.