Oliver Lewis v Sarah Louise Francis & Anor

For a costs order under section 19 of the Prosecution of Offences Act 1985, the question is not merely whether the evidence was too weak to satisfy the criminal standard or whether the prosecution failed. The court must assess whether the decision to prosecute was wholly unreasonable on the material available to the prosecutor at the relevant time. The assessment must avoid hindsight and have regard to the statutory purpose of the citizen remedy under section 82 of the Environmental Protection Act 1990, which is intended to be simple and speedy. A private statutory nuisance claim is not equivalent to a sophisticated private prosecution, and failure to approach the local authority is not, without more, an unnecessary or improper act.

The appellant brought citizen proceedings under section 82 of the Environmental Protection Act 1990, alleging that dogs kept by the respondents constituted a statutory nuisance. The magistrates’ court accepted a submission of no case to answer because the evidence was too weak and undermined to establish nuisance to the criminal standard. It later ordered the appellant to pay each respondent £5,071.60 under section 19(1) of the Prosecution of Offences Act 1985, treating the commencement of proceedings as unnecessary because the appellant had failed objectively to assess his evidence.

On appeal by case stated, the central issues were whether the magistrates’ court had power to order costs on that basis, whether the costs were reasonably incurred, and whether the order should stand.

1. Appeal allowed. The costs orders were wrong in law and were set aside.
2. Section 19 costs do not follow merely because a prosecution or citizen proceeding fails, even following a successful submission of no case to answer. The relevant question is whether the decision to prosecute was wholly unreasonable, assessed by reference to the material available to the prosecutor when proceedings were issued.
3. The magistrates’ court had found only that the evidence called at trial was weak and undermined, and that no reasonable tribunal could convict. It had not found, and the case stated did not establish, that no reasonable prosecutor could have brought the claim on the evidence available before proceedings began. The reasoning therefore involved hindsight.
4. The statutory nuisance remedy under section 82 of the Environmental Protection Act 1990 is intended to be simple and speedy and available to persons who may be unsophisticated or unrepresented. The appellant was not required to obtain legal advice on the merits or approach the local authority before bringing proceedings. Imposing such expectations could create a chilling effect on the citizen remedy.
5. Expert evidence about whether dogs were defending their territory had little relevance to the objective nuisance question. Evidence about commonly encountered levels of threat or aggression might be admissible, but would have limited value. The cost of the respondents’ expert report was therefore not recoverable.
6. The respondents’ costs were otherwise reasonable and reasonably incurred. They were directed to be paid from central funds, excluding the expert evidence costs. Further written submissions were invited on the appeal costs and consequential matters.

• High Court (Administrative Court): Appeal by case stated allowed. The magistrates’ court’s costs orders were set aside.