Wollenberg, R (On the Application Of) v The Crown Court at Southwark

When deciding whether to award private prosecution costs from central funds, the court must apply the statutory and procedural framework, including the general rule that costs should be paid unless there is good reason to refuse or reduce them. The controlling question is whether the prosecution was objectively unreasonable, improper or without good cause. The inquiry is fact-specific.

In judicial review proceedings concerning a Crown Court decision on costs consequential upon a trial on indictment, the High Court may intervene only where a defect is sufficiently grave to deprive the Crown Court of jurisdiction. The decision must be assessed in the round. Irrelevant or low-weight considerations do not establish jurisdictional error unless they materially caused the decision.

The claimant brought a private prosecution against four defendants. The Crown Court dismissed the charges after a preliminary hearing and later refused his application for prosecution costs from central funds under section 17 of the Prosecution of Offenders Act 1985.

The claimant sought judicial review of the refusal, alleging errors concerning motive, evidential sufficiency, expert evidence, the amount claimed, the absence of a voluntary bill application, procedural fairness and the consideration of his written evidence. Permission was refused on the papers and the claimant renewed the application orally. The issue was whether the proposed claim was reasonably arguable, including whether any defect was sufficiently grave to constitute jurisdictional error.

1. Application refused. The proposed judicial review claim was not reasonably arguable and lacked sufficient merit to proceed.
2. Section 17 of the Prosecution of Offenders Act 1985 establishes a general rule that prosecution costs should be paid from central funds, subject to the court’s power to order a lesser amount or decline an order. The discretion is not confined to misconduct or a dominant improper motive. The touchstone is objective reasonableness and proper conduct. Whether a private prosecution was unreasonable or improper is fact-specific.
3. The Crown Court was entitled to consider its findings on the evidence in the dismissal ruling, while applying the distinct costs test. The evidential insufficiency was not determinative, but was a relevant factor in assessing whether the proceedings were continued reasonably and with good cause.
4. The judge was entitled to give little weight to the claimant’s reliance on leading counsel and experts, having regard to her findings about his involvement in assembling the evidence, instructing experts and managing disclosure.
5. The absence of a comparable previous costs decision, the large amount claimed and the failure to apply for a voluntary bill were factors of little or no weight. They should not themselves cause costs to be refused. However, the judge had not materially relied on them, so they did not invalidate her decision.
6. There was no procedural unfairness in the judge’s failure to disclose during the oral evidence the conclusions she was likely to reach. Nor did failure to mention every document in the ruling establish an error, particularly where the relevant skeleton argument had been addressed.
7. Under section 29(3) of the Senior Courts Act 1981, Crown Court decisions relating to a trial on indictment are ordinarily excluded from judicial review. The exception for jurisdictional error requires a defect sufficiently grave to take the matter outside the Crown Court’s jurisdiction. Applying R (DPP) v Aylesbury Crown Court [2017] EWHC 2987 (Admin), the decision had to be considered in the round. The judge had applied the correct framework, acted within her discretion and reached a conclusion open to her on the evidence.

Permission to apply for judicial review was refused on the papers by Mr Justice William Davis. The claimant renewed the application orally before the High Court (Administrative Court).

The renewed application was refused by Mr Justice Goose.