Buzzlines Travel Ltd & Nigel Busbridge v Margate Magistrates Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Underhill,Lord Justice Toulson |
| Judgment Date | 07 March 2013 |
| Neutral Citation | [2013] EWHC 921 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 March 2013 |
| Docket Number | CO/8863/2012 |
[2013] EWHC 921 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Toulson
Mr Justice Underhill
CO/8863/2012
Mr M Laprell (instructed by Pellys Transport) appeared on behalf of the Appellant
Mr R Christie QC (Intervener) (instructed by Woodfines) appeared on behalf of the Respondent
The first claimant in these proceedings ("the company") is a coach hire and coach tour operator business, based at Lympne in Kent. The second claimant, Mr Busbridge and his wife, are the sole shareholders. Mr Busbridge is a director and the nominated transport manager.
In late 2010, the company was the subject of an investigation by the Vehicle and Operator Services Agency ("VOSA"), who are the interested party in these proceedings, into breaches of the EU drivers' hours' regulations and the statutory obligation to keep proper tachograph records. The investigation was into compliance during a 6 week period between mid June and the end of July 2010.
Proceedings were initiated in the Magistrates' Court in May 2011 against 20 of the company's drivers; some in respect of a single breach, and some in respect of multiple breaches. The total number of offences alleged was 57. Mirror offences were also charged against the company for using the vehicles in question in circumstances where there was a breach of the regulations, which is an offence of strict liability; and against Mr Busbridge for causing or contributing to the commission of those offences by his neglect. In addition, the company was charged with 110 offences of failing to produce (ie in practice failing to retain) tachograph charts covering particular periods.
The case had a complicated interlocutory history, substantially conducted before the same bench of justices; but eventually, after considerable discussion between the defendants (all of whom were represented by the same solicitors, though the drivers had separate counsel) and VOSA, both in and out of court, and two rulings by the bench on disputed matters, acceptable pleas were agreed.
At the start of a two-day hearing in the Margate Magistrates' Court on the 30 May 2012, 13 of the drivers pleaded guilty in respect of 37 of the offences charged, the remainder not being pursued. The company pleaded guilty to all but five of the mirror offences. As regards the failure to produce records, the company admitted 44 instances (either by way of a guilty plea or by asking for them to be taken into consideration). Mr Busbridge pleaded guilty in respect of 18 of the drivers' offences.
VOSA's solicitors produced a very clear and helpful note to assist the justices in sentencing. This also included an application for costs, quantified in the sum of £124,305 including a suggested apportionment of the sum claimed between the individual drivers, the company, and Mr Busbridge. The claim comprised £82,011 by way of the costs of VOSA's investigation, supported by a detailed schedule showing the hours worked by its staff, and £42,294 in respect of legal costs.
Counsel for the drivers and counsel for the company and Mr Busbridge, Mr Laprell, who has also appeared before us, made pleas in mitigation on the afternoon of 30 May. This included putting material before the justices about the financial position of the company, based on its most recent accounts together with instructions given by Mr Busbridge.
The justices retired to consider the question of sentence overnight. The following day the chairman made some brief remarks about the approach which they had taken to sentencing. We have only a short note of those remarks, but he made it clear that the offences were regarded as serious and that the sentences were intended to be severe. After a further retirement the chairman proceeded to announce the particular fines on each of the defendants. So far as the individual drivers are concerned, I need not give details. The company was fined a total of £44,000 and Mr Busbridge £9,000. As regards costs, the individual drivers were ordered to pay a total of £1050, Mr Busbridge £15,000 and the company £50,000. The latter figures were almost exactly half of what VOSA had sought. Initially the claimants were ordered to pay the sums awarded within 28 days, but after hearing further submissions the justices decided that they could be paid over a period of 12 months. I will return to the circumstances of that change presently.
In these proceedings the claimants seek judicial review of the orders for costs against them. There is no challenge in these proceedings to the level of the fines themselves: we are told that these are the subject of a separate appeal in the Crown Court.
The justices have not been asked to state a case, and accordingly we have no authoritative account of their reasoning. The claimants have been represented before us, as I have said, by Mr Mark Laprell of counsel. VOSA has been represented by Mr Richard Christie QC, who did not appear below. The justices, as is usual, have not appeared.
I should start by identifying the relevant background law. The power to award costs derives from section 18 of the Prosecution of Offences Act 1985, sub-section (1) of which reads, so far as material:
"Where —
(a) any person is convicted of an offence before a magistrates' court;
(b)-(c) … the court may make such order as to the costs to be paid by the accused to the prosecutor as it considers just and reasonable."
There is no statutory right of appeal. Any challenge must accordingly be made, as the present challenge is, by way of judicial review, applying the usual principles for the review of the exercise of a discretion. Guidance as to the proper exercise of the discretion to award costs was given by this Court, Lord Bingham LCJ presiding, in R v Northallerton Magistrates' Court [2000] 1 Cr App R 136. I need not set out that guidance in full. For present purposes the significant points are the following, from page 142 of the judgment:
"(1) An order to pay costs to the prosecutor should never exceed the sum which, having regard to the defendant's means and any other financial order imposed upon him, the defendant is able to pay and which it is reasonable to order the defendant to pay.
(2)-(3) …
(4) While there is no requirement that any sum ordered by justices to be paid to a prosecutor by way of costs should stand in any arithmetical relationship to any fine imposed the costs ordered to be paid should not, in the ordinary way, be grossly disproportionate to the fine.
Justices should ordinarily begin by deciding on the appropriate fine to reflect the criminality of the defendant's offence (always bearing in mind his means and his ability to pay) and then consider what, if any, costs he could be ordered to pay to the prosecutor.
If, when the costs sought by the prosecutor added to the proposed fine the total exceeds the sum which in the light of the defendant's means and all other relevant circumstances the defendant can reasonably be ordered to pay, it is preferable to achieve an acceptable total by reducing the sum of costs which the defendant is ordered to pay, rather than by reducing the fine.
(5) It is for the defendant facing a financial penalty by way of fine or an order to pay costs to a prosecutor to disclose to magistrates such data relevant to his financial position as will enable justices to assess what he can reasonably afford to pay.
In the absence of such disclosure, justices may draw reasonable inferences as to the defendant's means from evidence they have heard and from all the circumstances of the case …"
At the start of the pleaded statement of facts and grounds Mr Laprell summarises his grounds of challenge to the justices' decision in the following terms.
"It is submitted that the orders were cost orders which no reasonable bench could have imposed because:
1. They were disproportionate to the level of fines imposed for the offences admitted.
2. They were unaffordable and incompatible when added to the fines imposed with the means of the paying parties, of which evidence was submitted and information provided in mitigation.
3. They resulted in an imposition of a total financial sanction when added to the fines which was excessive and wrong when applying the principle of totality.
4. They represented a recovery by the prosecution of costs which were not related to the convictions but took account of investigation costs which led to no summonses and legal and investigation costs related to summonses for offences which the prosecution did not proceed with.
Thus, the company and its director will be ordered to pay prosecution investigation and legal costs relating to investigation costs which led to no charges and legal costs which led to acquittals."
As appears from that summary, there is no challenge to VOSA's account of the sums actually incurred by way of investigation costs and legal costs, or to the reasonableness of those costs as such.
In his oral submissions Mr Laprell reformulated those points somewhat under essentially two heads —(1) proportionality and (2) affordability. I consider them in that order. The heading of proportionality covers three more specific submissions, which I take in turn.
First, Mr Laprell says that the starting point for the justices should have been to consider how the total costs should be apportioned between the three sets of defendants — that is, the individual drivers, the company and Mr Busbridge — and only...
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...circumstances of the case. 16 In Buzzlines Travel Limited & Nigel Busbridge (R on the application of) v Margate Magistrates Court [2013] EWHC 921 (Admin), submissions were made as to proportionality of costs where acceptable pleas to some out of a great many more offences of breaches of the......