Ashgrove (Swansea) Ltd & Paul Thomas v Welsh Ministers
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams,THE LORD CHIEF JUSTICE |
| Judgment Date | 10 October 2016 |
| Neutral Citation | [2016] EWHC 3786 (Admin) |
| Docket Number | CO/3821/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 October 2016 |
[2016] EWHC (Admin) 3786
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
The Law Courts
St Helen's Road
Swansea
South Wales
SA1 4PF
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
( Lord Thomas of Cwmgiedd)
Mr Justice Wynn Williams
CO/3821/2016
Ms Midgley appeared on behalf of the Claimant
Mr Rhys appeared on behalf of the Defendant
: There is an appeal before the court by way of Case Stated relating to an order for costs made by District Judge Richard Williams. The background is as follows.
The background
The appellants, Ashgrove Swansea Ltd, a company, and Mr Paul Thomas, the responsible individual and a Director of the company, were both in the business of providing personal and nursing care to persons over 65 at a care home.
The home in question was owned by the company and Mr Thomas was a Director. As the home is in Swansea in the Principality of Wales, the regulations concerning the home are the Care Homes (Wales) Regulations made under the Care Standards Act 2000. A prosecution was commenced by the relevant prosecuting authority, who are the Welsh Ministers, for breach of the regulations, essentially by failing to make proper provision for care.
There were a number of charges originally brought against a number of people apart from those we have mentioned but they were in effect four charges against the company and four against Mr Thomas.
The trial
The trial commenced before the District Judge on 2nd November 2015, having an original estimate of 10 days but by sensible agreement between counsel the estimate seems to have been reduced to 5 days. On the fourth day of the hearing, at the end of the prosecution case and before the defendants were to call their evidence, both pleaded guilty to each of one of the charges on a basis of plea.
The judge adjourned the matter for sentencing and on 11th November 2015 the company and the individual, Mr Thomas, were each fined £2,250. The maximum fine was £2,500 under the relevant regulations and he allowed a 10% discount.
The appeal against sentence
There was an appeal against the sentence to the Crown Court here at Swansea which reduced the sentence to £2,050 for the company and £1,350 for Mr Thomas. It appears that the court thought that there were some factors to be taken into account in the amount of the fine that should be imposed upon the individual.
The application for costs
The prosecution then sought its costs. It had intimated that prior to the appeal and it was pursued thereafter. The prosecution sought costs in the sum of £101,080.90 seeking it under section 18 of the Prosecution of Offences Act 1985. There was no hearing, the District Judge determined the matter very sensibly on written submissions.
The judge, by judgment given on 31st May 2016, found that the costs that had been actually reasonably and properly incurred were not the amount originally claimed but inclusive of VAT were some £79,511.62. He decided that the appellants should pay the whole of the costs apportioning as to £67,571.62 to the company and the balance of £12,000 to Mr Thomas.
The Case Stated
He then set, as is not unusual, a number of questions for this court. They can be summarised as follows:
(i) Was the amount of £79,517.62 costs which were actually reasonably and properly incurred?
(ii) Should the judge have ordered the defendant (the appellants of this court) to pay all the costs?
(iii) Was his apportionment correct?
The procedure for the determination of costs and considerations in relation to thereto are also supplemented by the Criminal Procedure Rules Part 45.2 and the Criminal Practice Direction.
Although the argument before us has concentrated and been directed at the second of the judge's questions, it may be helpful for us to deal with the first question the judge asked the court — in essence was he correct in the way in which he approached the amount that was actually reasonably and properly incurred?
Question (1): Scrutiny of the application: "reasonably and properly incurred"
The judge considered, very carefully, the relevant procedural rules and decided that he should first approach the matter by ascertaining what the amount was that was sufficient to compensate the prosecutor for the costs actually reasonably and properly incurred. He would then turn to consider the second question whether it would be reasonable to order that amount be paid.
It is right I think to point out that the District Judge, in the way in which he approached this, looked very properly at the detail of the costs. For example, he looked at the question of the costs of an official who had played a leading role in the investigation and disallowed those costs. He looked at expert fees and reduced those significantly from £13,000 to £250. He looked at some minor points on time spent in duplication. He also looked at the amount charged by the firm of solicitors who had been retained by the Welsh Government to prosecute the case and at counsel's fees. They both were said to be unreasonable and he found the amounts were reasonable.
We mention those matters because we think it important to emphasise that a judge must bring a very careful eye to bear on costs. This District Judge did so with very commendable thoroughness. It is we think difficult to conceive of circumstances where the kind of question the District Judge asked of us can be formulated as a point of law that this court would entertain. These are essentially matters of assessment of costs and therefore it is only in the rarest case would this court expect to be in a position where it was asked to consider these issues. It is therefore important to emphasise the care that needs to be taken in cases of this kind so that prosecution costs are effectively policed.
Some observation were made by the Court of Appeal (Criminal Division) in R v Zinga [2014] EWCA Crim 1823; [2015] 1 Cr App R(S) 2, dealing with the costs of private prosecutors. In that case the court again stressed the importance of a very detailed and thorough examination of the costs incurred.
Question (3): Apportionment
We next turn to add one observation about the third question that the District Judge asked us. He asked us about apportionment. As we have set out, the judge apportioned the greater part of the costs to the company and the smaller part to Mr Thomas. That apportionment is not challenged before us and it is not suggested that either Mr Thomas or the company cannot pay those amounts.
He dealt with the matters that are not in the event relevant to the argument advanced before us.
Question (2): Proportionality
We turn to the principal submission that has been very attractively and ably argued by Ms Midgley on behalf of the appellants in relation to the second question: should the judge have ordered the prosecution to pay the entirety of the costs?
Here the principal question relates to the proportionality of the costs and some of the observations expressed by the judge.
The judge's approach
What the judge did in the judgment which we have already described as "careful and thorough" was to consider each of the factors set out in a Criminal Procedure Rules Part 45.2(7). He went through each of the headings there and reached conclusions he carefully set out. He took the view that as regards the first of those matters under...
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R v Alan Liversidge
...of the breadth of that discretion is illustrated by the decision of the Divisional Court in Ashgrove (Swansea) Ltd v Thomas [2016] EWHC (Admin) 3786, in particular in the judgment of the then Lord Chief Justice at [30] and 13 In the present case, we do not consider that there is any force ......