Fox, R (on the application of) v Sabel

A private prosecutor in the Magistrates’ Court is subject to the same case-management obligations as any other prosecutor. A party relying on expert evidence should identify that reliance clearly, serve the evidence promptly and ensure that the expert can attend if required. There is no entitlement to an adjournment merely because evidence has become difficult to use. The court must consider the circumstances known to it, the need for prompt and effective hearings, prejudice to other court users and the practical consequences of delay. Where relief is discretionary, the court may also consider whether admitting the evidence could have made a material difference.

The claimant brought a private prosecution against the interested party under sections 79 and 82 of the Environmental Protection Act 1990, alleging noise and vibration from a boiler. At a case-management hearing, the parties identified the factual issues and a five-hour trial was fixed. The claimant later obtained an expert report, but had not clearly indicated that she intended to rely on expert evidence or ensured that the expert could attend trial.

The Magistrates’ Court refused an adjournment, refused to continue the case part heard and acquitted the interested party. It later refused the claimant’s application to state a case as frivolous. The claimant sought judicial review, alleging that refusal of an adjournment was unreasonable.

1. Claim dismissed. The claimant’s application for an adjournment was properly assessed on the basis of the information available to the Magistrates’ Court, in particular the claimant’s letter of 23 March. That letter did not provide a compelling basis for an adjournment.
2. A private prosecutor has the status and obligations of a prosecutor in criminal proceedings. The claimant should have made clear in the PET form that she intended to rely on expert evidence. If the evidence was important, it should have been disclosed at the earliest stage.
3. The claimant had also failed to comply with the timetable recorded in the PET form. She instructed the expert late, served the report outside the stated 28-day period and failed to ensure that the expert was available to attend the fixed trial if required. The timetable was not prescribed by the Criminal Procedure Rules, but the claimant’s failure to identify and manage the expert evidence materially weakened the application.
4. The court was entitled to take account of the need for cases to be heard promptly and effectively, the constitution of the three-member bench, the delay and inconvenience caused by an adjournment or a part-heard trial, and prejudice to other court users. The claimant had no entitlement to one adjournment.
5. The refusal was within the range of reasonable responses. The defence was not conducting a procedural ambush: it sought the opportunity to cross-examine an expert whose evidence the claimant wished to rely upon. In any event, admission of the report would not have made a material difference, which was relevant when considering discretionary relief.
6. Lord Justice Simon gave the judgment and Mr Justice Collins agreed. The claim was dismissed. The interested party was awarded costs, abated to £3,500.

1. City of London Magistrates’ Court: refused the claimant’s application to state a case on 18 June 2015 after refusing an adjournment and acquitting the interested party.
2. High Court (Administrative Court): dismissed the judicial review claim.