Haigh, R (On the Application Of) v City Of Westminster Magistrates' Court

Under section 19 of the Prosecution of Offences Act 1985, an improper act is one that would not have occurred if the party had conducted the case properly, or that should otherwise have been properly avoided. The assessment is broad and fact-sensitive. A private prosecutor is not liable merely because a prosecution fails or is withdrawn, but private prosecutions must be conducted to the highest standards and may attract closer scrutiny than public prosecutions. Section 19 costs are assessed summarily by a broad-brush method, subject to reasonableness and proportionality. On public-law review, the reviewing court should not conduct a detailed costs assessment.

The applicant challenged a decision of District Judge Ikram ordering him to pay £230,446.14 to interested parties under section 19 of the Prosecution of Offences Act 1985, following the abandonment of his proposed private prosecution. He argued that no improper act had occurred, that irrelevant material had been considered, that he had not been given an adequate opportunity to respond, and that the costs were excessive and disproportionate.

The Administrative Court considered the meaning of improper conduct, the propriety of the private prosecution, the procedural fairness of the costs decision, and the proper approach to reviewing a summary assessment.

1. Ground I dismissed. The court adopted the test stated in DPP v Denning and applied in R v Evans (Eric) (No 2) and R v Cornish. An improper act under section 19 is one that would not have occurred if the party had conducted the case properly, or that should otherwise have been properly avoided. The question is assessed broadly and in all the circumstances. Section 19 is not equivalent to the wasted-costs jurisdiction under section 19A.
2. A private prosecution remains an important legal right, as recognised in R (Gujra) v Crown Prosecution Service. Nevertheless, private prosecutors and their lawyers must act to the highest standards as ministers of justice. There is greater scope for scrutiny of private prosecutors because personal interests are ordinarily involved. The prosecution is not improper merely because it fails or is withdrawn.
3. On the particular facts, the applicant’s proposed prosecution was a clear and stark error. The obvious initial course was to approach the police, the CPS and the FCO. The asserted urgency was materially directed to putting pressure on the interested parties and was collateral to the proper prosecution of allegations. The applicant continued despite notice that the application would be contentious and despite the inconsistency between his position in Dubai and the allegations advanced in England. The magistrate was therefore entitled to find an improper act.
4. The observations of Sir David Steel were relevant. The applicant had been represented throughout and had received a sufficient opportunity to respond. There was no proper basis for delaying the costs determination until his return to England or for introducing new allegations of fraud on judicial review.
5. Section 19 costs require a specified amount assessed by the judge. The assessment is summary and broad-brush, but must compensate only for costs actually, reasonably and properly incurred, with reasonableness incorporating proportionality. The reviewing court must not conduct a detailed assessment or substitute its own first-instance assessment.
6. The original figures were reduced to £100,000 for the first and second interested parties and £90,000 for the third interested party. The reductions reflected the need for greater scrutiny of hours and minor expenses, but did not otherwise undermine the magistrate’s approach.
7. The challenge to reliance on the without-prejudice settlement offer failed. The privilege is displaced only in cases of abuse amounting to unambiguous impropriety. No such circumstances existed.

The judgment describes the challenged decision of District Judge Ikram dated 30 September 2015. The Administrative Court upheld the finding of impropriety and the principal approach to costs, but reduced the sums awarded.