Football Association Premier League v Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Nicol,Lord Justice Dingemans,O'Farrell JJ,Nicol J |
| Judgment Date | 30 March 2021 |
| Neutral Citation | [2021] EWHC 755 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QA-2020-000191 & QA-2020-000192 |
| Date | 30 March 2021 |
[2021] EWHC 755 (QB)
Lord Justice Dingemans
Mr Justice Nicol
and
Mrs Justice O'Farrell
Case No: QA-2020-000191 & QA-2020-000192
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Bacon QC and Dominic Donoghue (instructed by DLA Piper UK LLP and Hickman Rose) for the Appellants
Richard Clarke (instructed by Government Legal Department) for the Respondent
Hearing dates: 17th March 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Lord Justice Dingemans, Nicol AND O'Farrell JJ
This is an appeal from Costs Judge (or, as he is also known, Master) Rowley.
The Appellants are the Football Association Premier League (‘FAPL’) and Sports Information Services Ltd (‘SIS’). From time to time both organisations bring private prosecutions. In particular, FAPL prosecuted O'Leary, Dodds and Haggerty for conspiracy to defraud contrary to Fraud Act 2006 s.11(1). The Defendants either pleaded guilty or were convicted. SIS prosecuted William Marston who had broken into encrypted horse and greyhound racing channels. He was convicted or pleaded guilty to an offence under Copyright Designs and Patents Act 1988 s.297A(1)(a).
In each case an order was made that the prosecutor should receive its costs out of central funds pursuant to Prosecution of Offences Act 1985 s.17.
Where such an order is made instead of the court quantifying the costs to which the prosecutor is entitled out of central funds, there can be an assessment by a Determining Officer. That procedure was followed in each of the cases with which we are concerned.
The Determining Officer in the FAPL case was Ms Helen Thompson. The Determining Officer in the SIS case was Mr Peter Fitzgerald-Morris. Neither Ms Thompson nor Mr Fitzgerald-Morris allowed the Appellants to recover any of the costs or expenses which were incurred prior to the commencement of the criminal proceedings, that is any of the costs prior to the issue of a summons or before an information had been laid.
From decisions of Determining Officers there is a right of appeal to a Costs Judge. FAPL and SIS exercised this right. The appeals were heard together by Master Rowley on 6th February 2020. He reserved his decision which he handed down on 6th August 2020.
In brief, Master Rowley agreed with the Determining Officers that costs or expenses incurred before the commencement of the criminal proceedings could not be recovered out of central funds.
Master Rowley acknowledged that his decision involved a point of law of general importance. He certified this as,
‘What is the correct approach for the Court to apply in determining the level and extent of recovery of expenses where they are incurred before the commencement of proceedings?’
Such a certificate is a necessary pre-condition to the Appellants being able to appeal to the High Court from the Costs Judge's decision (see Costs in Criminal Cases (General) Regulations 1986 (‘CCCGR 1986’) regulation 11(3). The decision of the High Court is final (see regulation 11(7)).
The sums in issue can be substantial. In the FAPL case, for instance, some £87,050.33 was disallowed on the basis that these were costs or expenses incurred before the commencement of the criminal proceedings. In the SIS proceedings some £78,846.30 was disallowed as costs or expenses incurred before the commencement of the prosecution. The Costs Judge accepted the evidence of Kieron Sharp, Director-General of the Federation Against Copyright Theft (‘FACT’) that, if investigative costs were not recoverable, then essentially private prosecutions could not be brought.
The appeal first came before me sitting as a single judge. I drew attention to the fact that the decision of the High Court was final: there could be no appeal to the Court of Appeal or the Supreme Court. I asked if the parties were content for me to continue to hear the appeal or whether they wished to apply for the appeal to be adjourned to be re-listed in front of a Divisional Court. The parties agreed that that they wished the matter to be adjourned, which I agreed was appropriate. The matter has subsequently come before a Divisional Court composed of Dingemans LJ, Nicol and O'Farrell JJ.
In advance of the adjourned hearing, the Court had asked the parties for their submissions as to whether a Divisional Court, as opposed to a single judge of the High Court could consider the appeal. This inquiry was prompted by the terms of regulation 11(7) which says,
‘An appeal under paragraphs (3)… shall be brought in the Queen's Bench Division, follow the procedure set out in Part 52 of the Civil Procedure Rules 1998, and shall be heard and determined by a single judge whose decision shall be final.’
The parties responded with commendable speed in a joint note of the same date (16th March 2021) in which they submitted that the appeal could be heard by a Divisional Court. Some of what follows below draws on that joint note.
Part 52 of the CPR is concerned with appeals. It particularly affects the Court of Appeal, but it is not limited to that Court and also applies to the High Court when that court is exercising an appellate function.
CPR r.52.20 is entitled ‘Appeal Court's powers’. Rule 52.20 (4) and following says,
‘(4) The appeal court may exercise its powers in relation to the whole or any part of an order of the lower court.
(Part 3 contains general rules about the court's case management powers.)’
There is a Practice Direction – Practice Direction 52B — specifically for appeals to the County Court and the High Court, but it contains nothing material to the present issue.
By s.19(3)(a) of the Senior Courts Act 1981,
‘Any jurisdiction of the High Court shall be exercised only by a single judge of that court, except in so far as it is—
(a) by or by virtue of rules of court or any other statutory provision required to be exercised by a divisional court’
By s. 66(1) of the Senior Courts Act 1981,
‘(1) Divisional courts may be held for the transaction of any business in the High Court which is, by or by virtue of rules of court or any other statutory provision, required to be heard by a divisional court.’
In 2017 the CPR were amended by the Civil Procedure (Amendment No.2) Rules 2017 SI 2017 No. 889. Rule 3 made amendments to Part 3 of the CPR. As amended and so far as material, it reads,
‘3.1 (1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or any other enactment or any powers it may otherwise have.
(2) Except where these rules otherwise provide, the court may –
…
(bb) require that any proceedings in the High Court be heard by a Divisional Court of the High Court. …
(3A) Where the court has made a direction in accordance with paragraph (2)(bb) the proceedings shall be heard by a Divisional Court of the High Court and not by a single judge.’
In my view, the parties are correct that the Divisional Court has jurisdiction to hear this appeal for the following reasons:
i) While it is the case that regulation 11(7) says that the appeal to the High Court should be heard by ‘a single judge’ it also makes specific reference to the Civil Procedure Rules Part 52 and Part 52 itself cross refers to Part 3 of the CPR.
ii) There are many occasions when a court may need to have recourse to the case management powers in CPR Part 3. To take just one example, if there had been delay in lodging the notice of appeal for some good reason and an application for an extension was not made until after the deadline had passed, the appellant ought to be able to seek relief from sanctions under CPR r.3.9. It is inconceivable that Parliament should have intended there to be no such case management power.
iii) As set out in paragraph 11 above, when this matter first came before me, exercising my case management powers and at the request of the parties, I adjourned the case to be heard by a Divisional Court.
iv) Because of rule 3.1(3A), a single judge would now be prohibited from hearing the appeal: only a divisional court can hear the appeal. Of course I may have erroneously decided that the appeal should be adjourned to a divisional court, but if I so erred, it would be for the Court of Appeal to correct me and no such appeal was advanced. Unless and until my order was set aside on appeal, it remained valid and effective (see for instance Strachan v Gleaner Co. Ltd. [2005] UKPC 33, [2005] 1 WLR 3204 citing, at [29], In Re Padstow Total Loss and Collision Assurance Association (1880) 20 Ch.D. 137 at 142 and 145).
Accordingly, I consider that, as a Divisional Court, we could continue to hear the substantive appeal.
The statutory background
As I have said, the power to order costs out of central funds is contained in Prosecution of Offences Act 1985 s.17 (‘POA 1985’). However, the argument in this appeal travelled over other powers in relation to costs and it is convenient to set these parts of the Prosecution of Offences Act 1985 out at the same time.
‘16. Defence costs….
(6) A defendant's costs order shall, subject to the following provisions of this section, be for the payment out of central funds, to the person in whose favour the order is made, of such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.
(6A) Where the court considers that there are circumstances that make it inappropriate for the accused to recover the full amount mentioned in subsection (6), a...
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