Football Association Premier League & Anor v Lord Chancellor

The phrase “in the proceedings” in Prosecution of Offences Act 1985, s 17(1), does not create a bright-line rule excluding every expense incurred before a summons is issued or an information is laid. Pre-commencement work may be recoverable where it is properly regarded as undertaken in the proceedings. The question is fact-sensitive and must be assessed by reference to the work actually done and its connection with the prosecution. Recovery remains subject to the requirements that costs be reasonably sufficient, properly incurred and reasonable in amount. The court may also reduce recovery where the circumstances make it inappropriate for the prosecutor to recover the full amount under s 17(2A). The appeal was allowed and the assessment was remitted.

The Football Association Premier League and Sports Information Services Ltd brought private prosecutions and obtained orders for their costs from central funds under Prosecution of Offences Act 1985, s 17. Determining Officers disallowed costs incurred before the formal commencement of the prosecutions. Master Rowley upheld those decisions and certified a point of law concerning the recovery of pre-commencement expenses.

The appellants appealed to the High Court. The principal issue was whether costs incurred before the issue of a summons or the laying of an information could nevertheless be costs incurred “in the proceedings” for the purposes of s 17(1). A further issue concerned the Divisional Court’s jurisdiction to hear the appeal despite regulation 11(7) of the Costs in Criminal Cases (General) Regulations 1986.

1. Jurisdiction. The Divisional Court had jurisdiction to determine the appeal. Although regulation 11(7) of the Costs in Criminal Cases (General) Regulations 1986 referred to a single judge, the appeal was brought under Part 52 of the Civil Procedure Rules 1998, which cross-referred to the case-management powers in Part 3. Once the single judge had directed that the appeal be heard by a Divisional Court, that order remained valid and effective unless set aside on appeal. Dingemans LJ agreed with that conclusion, while expressing no view on the wider question whether the regulation itself permitted such a direction.
2. Construction of s 17(1). The same phrase, “in the proceedings”, appeared in s 16(6) and s 17(1). Parliament therefore intended the phrase to bear the same meaning in both contexts. The decision in R (Hale) v North Sefton JJs demonstrated that costs incurred before the formal commencement of criminal proceedings could, in an appropriate case, be recoverable.
3. The commencement of a prosecution was not a bright-line cut-off. Pre-commencement work could qualify where it was properly regarded as undertaken in the proceedings. Examples included drafting a summons or charge, assembling witness statements for use in the prosecution and assembling material required for disclosure. The assessment was for the Costs Judge, applying the statutory criteria to the individual items claimed.
4. The policy of preserving viable private prosecutions supported that construction. Murli Mirchandani v Lord Chancellor and R (Virgin Media Ltd) v Zinga recognised that prosecution costs could, for pragmatic reasons, receive more favourable treatment than defence costs. That policy could not overcome clear statutory language, but the language here was not clear in favour of an absolute exclusion.
5. Recovery remained controlled by the requirements of s 17(1) that expenses be properly incurred and reasonably sufficient, together with the power in s 17(2A) to award a lesser amount where full recovery would be inappropriate. The case was remitted to the Costs Judge to determine which pre-commencement costs fell within s 17 and whether any reduction under s 17(2A) was required.

• High Court (Queen's Bench Division): allowed the appeals from Master Rowley and remitted the assessment of the pre-commencement costs and any reduction under s 17(2A) of the Prosecution of Offences Act 1985 to the Costs Judge.
• Costs Judge: upheld the Determining Officers’ disallowance of costs incurred before the formal commencement of the prosecutions.