Hunt v The Director of Public Prosecutions & Anor

Costs incurred in separate proceedings may be recoverable as costs “incidental to” judicial review proceedings where the separate proceedings determine, or materially assist in determining, the same issue. There is no absolute rule that costs from another set of proceedings are irrecoverable.

The court must consider the connection between the proceedings, the relevance and usefulness of the work, and whether the costs were reasonably and proportionately incurred. The assessment is fact-sensitive. The decision is exceptional and does not generally encourage intervention in criminal appeals by judicial review claimants.

The claimant challenged the Director of Public Prosecutions’ decision not to prosecute an interested party for voyeurism. Permission was granted and the judicial review was listed for hearing.

Before that hearing, the Court of Appeal (Criminal Division) considered the same statutory issue in an unrelated criminal appeal, R v Richards [2020] EWCA Crim 95. The claimant was exceptionally permitted to intervene. The Court of Appeal adopted the interpretation for which she contended, and the judicial review was withdrawn after the defendant agreed to reconsider the prosecution decision.

The defendant accepted liability for the claimant’s judicial review costs but disputed whether her intervention costs were costs “of or incidental to” those proceedings.

1. Jurisdiction. Section 51(1) of the Senior Courts Act 1981 gave the court jurisdiction to award costs of the intervention as costs incidental to the judicial review. There was no rule that costs incurred in one set of proceedings could never be recoverable as incidental to another.
2. Relevant considerations. The three strands identified in In re Gibson’s Settlement Trusts [1981] Ch 179 were not necessarily applicable to the unusual circumstances of intervention in separate proceedings. Even if applicable, they were satisfied: the intervention was useful and served the judicial review, directly relevant to its central legal issue, and attributable to the defendant’s conduct.
3. The decision in Roach v Home Office; Matthews v Home Office [2009] EWHC 312 (QB); [2010] QB 256 was materially instructive. Costs of participation in other court proceedings could be incidental to later proceedings. Purpose was relevant but not decisive; relevance, reasonableness and proportionality also had to be considered. Each case depended on its circumstances.
4. Darroch v Football Association Premier League Ltd [2017] 4 WLR 6 did not require a different result. It concerned costs of the underlying proceedings from which an appeal or judicial review was brought, whereas the present case concerned intervention in separate proceedings which decided the same issue and was not itself the underlying litigation.
5. The intervention was necessary, reasonable and proportionate. The Court of Appeal’s ruling was binding on the Divisional Court and was likely to determine the judicial review. The defendant was ordered to pay the claimant’s costs of intervening in the criminal appeal, assessed on the standard basis if not agreed. The costs could include preparation of the intervention application, counsel’s preparation and attendance, and related documents. The ruling was confined to its exceptional facts and was not encouragement to intervene generally in criminal appeals.

The judicial review claim was granted permission and listed before the Divisional Court. It was withdrawn by consent after the Court of Appeal (Criminal Division) decided the common point of law. This judgment determined the disputed costs issue following that withdrawal.