Environment Agency, R (On the Application Of) v Tapecrown Ltd

Section 13 of the Administration of Justice Act 1960 does not confer Criminal Division jurisdiction over an order made under CPR 70.2A to enforce a prior order. Such an order is independent of the power to punish contempt, even where non-compliance led to contempt proceedings.

For judicial review, a matter does not relate to trial on indictment merely because it has a factual or procedural link to a criminal case. The court must examine the nature of the challenged decision. A discretionary refusal to extend time must address relevant considerations, including the length of the extension, prejudice, and the practical effect of refusal. Material factual errors, irrelevant considerations, and omission of relevant matters can require the decision to be quashed.

Tapecrown Ltd pleaded guilty to environmental offences and was later made subject to a remediation order. After its failure to remove waste, the Crown Court found the company and individuals connected with it in contempt.

The Crown Court subsequently made a CPR 70.2A order appointing a third party to remove waste at Tapecrown’s expense. The order permitted a challenge to the reasonableness of the third party’s costs within seven days of receipt of an invoice. His Honour Judge Ross refused Tapecrown a short extension of time to make that challenge.

Tapecrown sought to appeal to the Criminal Division and, alternatively, applied for judicial review. The central issues were whether either court had jurisdiction and whether the refusal of an extension of time was lawful.

1. The appeal to the Criminal Division was dismissed for want of jurisdiction. Section 13 of the Administration of Justice Act 1960 applies to orders or decisions made in the exercise of jurisdiction to punish contempt. The CPR 70.2A order was instead an enforcement measure consequent on the earlier remediation order. It did not form part of the punishment for contempt. Nor was the later decision about a costs challenge sufficiently connected with sentence to permit an appeal under Part 1 of the Criminal Appeal Act 1968.
2. The Administrative Court had jurisdiction. Under section 29(3) of the Senior Courts Act 1981, the exclusion for matters relating to trial on indictment did not apply merely because the disputed decision had some connection with criminal proceedings. The issue was a mechanism for payment of a third party’s costs under a civil procedural order. It was not an issue between the Crown and the defendant formulated by the indictment.
3. Judicial review was available. The claim, filed on the final day of the three-month period, involved no undue delay on the particular facts. Waiting for the contractor to sue was not a satisfactory alternative remedy. CPR 70.2A created a self-contained mechanism for ascertaining the disobedient party’s liability and enforcing the resulting amount.
4. The relevant invoice was received on 11 July 2017. The pro forma invoice was a demand for payment. The later invoice was substantively the same, although sent in the contractor’s usual format. Tapecrown’s challenge was therefore three days late and required an extension.
5. The refusal of an extension was unlawful. The judge relied on factual errors and irrelevant matters, and failed to address material considerations. These included the short extension sought, the severe effect of refusal on Tapecrown’s ability to use the costs-challenge mechanism, the negligible prejudice to the other parties, and the existing dispute about quantities and charges.
6. Order: leave for judicial review was granted; the decision of 3 October 2017 was quashed; and the matter was remitted to Oxford Crown Court to reconsider whether to extend time and the consequences of that decision. Tapecrown was awarded £7,000 costs.

• Court of Appeal (Criminal Division): held that it had no jurisdiction under section 13 of the Administration of Justice Act 1960 to entertain Tapecrown’s appeal.
• Administrative Court: reconstituted after the Criminal Division ruling. It held that judicial review was available, quashed the Crown Court decision of 3 October 2017, and remitted the extension-of-time question to Oxford Crown Court. The Administrative Court aspect bears [2018] EWHC 1450 (Admin).
• Oxford Crown Court: His Honour Judge Ross declined on 3 October 2017 to extend time for Tapecrown to challenge the reasonableness of costs charged under the CPR 70.2A order.