Drain, R (On the Application Of) v Birmingham Crown Court

The court may award costs that are incidental to judicial review proceedings under section 51(1) of the Senior Courts Act 1981. That jurisdiction can include reasonable storage costs incurred while property remains preserved at the claimant’s request pending a challenge to a forfeiture order. The fact that the successful party is a public authority does not prevent such an award. Costs are assessed on the standard basis, taking account of reasonableness and proportionality.

Following its substantive judgment on a challenge to a forfeiture order, the Administrative Court considered Birmingham Trading Standards’ application for its costs. The claimant’s solicitors had requested that the forfeited items not be disposed of pending any appeal or judicial review, and Birmingham Trading Standards incurred storage costs over approximately 23 months. The issues were whether those storage costs were incidental to the proceedings, whether costs could be awarded to a public authority, and what sum should be assessed.

1. Costs order. Birmingham Trading Standards succeeded in responding to the challenge to the forfeiture order. The court therefore ordered the claimant to pay its costs.
2. Jurisdiction under section 51(1). Section 51(1) of the Senior Courts Act 1981 gives the court power to make orders concerning the costs of and incidental to proceedings. Storage costs incurred while the items remained preserved pending the claimant’s challenge fell within the ordinary meaning of costs incidental to the proceedings.
3. Application of the principle. The court relied on the similar reasoning in Henderson v Commissioner of Police for the Metropolis [2018] EWHC 1092 (Admin), concerning kennelling costs incurred while a challenge to a destruction order was pending. The claimant’s specific requests that the items be retained supported the award.
4. Public authority. There was no basis for withholding storage costs merely because Birmingham Trading Standards was a public authority rather than a private person or company.
5. Assessment and final order. The court assessed costs on the standard basis. Although the claimed total was £11,341.30, the reasonable and proportionate sum for storage and other costs together was £11,000. The court declined to postpone the costs decision pending any appeal against the substantive judgment.

The costs judgment followed the court’s earlier substantive judgment, cited as [2018] EWHC 1255 (Admin). The court declined to postpone the costs decision pending any appeal from that judgment.