Matthew Hargreaves v Powys County Council

On an appeal by way of case stated in a criminal cause or matter, the absence of a power under the criminal costs regime to order an unsuccessful defendant to pay the prosecutor’s costs does not prevent the Divisional Court exercising its general power under Senior Courts Act 1981, section 28A(3).

The civil costs power is not displaced by provisions limiting an accused’s recovery of legal costs from central funds. The court must decide whether an order is appropriate in all the circumstances, including the unsuccessful party’s means and the reasonableness of the costs. Such orders may be exceptional in practice, but the court has jurisdiction to make them where appropriate.

The appellant’s appeal by way of case stated had been dismissed in the substantive judgment at [2022] EWHC 3176 (Admin). The respondent local authority then sought its costs of £59,719.40, including VAT, against the appellant.

The appellant argued that the proceedings were criminal in nature and that the Prosecution of Offences Act 1985 contained no power to order an accused to pay a prosecutor’s costs in the Divisional Court. He relied on authorities concerning the choice between criminal and civil costs regimes. The central issues were whether the court had power to make an inter partes costs order under section 28A(3) of the Senior Courts Act 1981, and, if so, whether such an order should be made and in what amount.

1. Jurisdiction. The proceedings concerned possible imprisonment for default in paying a confiscation order and were criminal in nature. The court distinguished the civil enforcement proceedings considered in Government of the United States of America v Montgomery [2001] UKHL 3, which were essentially civil in character.
2. Applicable costs power. The court held that the only available scheme for the prosecutor’s costs was section 28A(3) of the Senior Courts Act 1981. The absence of a power under the Prosecution of Offences Act 1985 did not prevent section 28A(3) being exercised. Section 16A of the 1985 Act, which restricted an accused’s recovery of legal costs, did not limit the court’s power concerning prosecution costs.
3. The exceptionality approach in Murphy v Media Protection Services Limited [2013] 1 Costs LR 16 concerned choosing between criminal and civil costs regimes where both might apply. It did not govern this case, where the prosecutor had only the section 28A(3) route. The court therefore did not accept that the criminal regime insulated the appellant from liability.
4. Exercise of discretion. The appellant was unsuccessful and had caused the respondent substantial expense. The court was entitled to consider his means. An offender who provides inadequate information about means may be subject to reasonable inferences from the circumstances, as illustrated by R v North Allerton Magistrates’ Court ex p Dove [2000] 1 Cr App R (S) 136.
5. The court considered the parties’ costs and the resources available to the appellant. It ordered the appellant to pay the respondent £25,000 inclusive of VAT, rather than the full sum claimed.

1. High Court (Administrative Court): The substantive appeal by way of case stated was dismissed in [2022] EWHC 3176 (Admin).
2. High Court (Administrative Court): The present judgment determined the respondent’s application for costs and ordered payment of £25,000 inclusive of VAT.