Hull and Holderness Magistrates' Court v Alister Charles Darroch and Another Media Protection Services Ltd and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | The Hon. Mrs Justice Carr |
| Judgment Date | 15 December 2014 |
| Neutral Citation | [2014] EWHC 4184 (Admin) |
| Docket Number | Case No: CO/4628/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 December 2014 |
[2014] EWHC 4184 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Foskett
The Hon Mrs Justice Carr DBE
Case No: CO/4628/2011
and
Mr Ashley Roughton (instructed by Smithfield Partners) for the Applicants
Mr Richard Millett Q.C and Mr Edward Brown (instructed by DLA Piper UK LLP) for the Second Interested Party
Hearing date: 26th November 2014
Introduction
This is the judgment of the court.
By application dated 5 th June 2014 Mr Alister Darroch and Mr Charles Darroch ("the Applicants") apply for a third party costs order against one of two interested parties, namely the Football Association Premier League Limited ("FAPL"). The application notice itself reads as follows:
" We are asking the Court to determine whether, on what basis and to what extent the Interested Parties should bear the costs of the Applicants' successful application for judicial review, including the costs below."
In the event, the application has been pursued only against FAPL and then in respect only of the Applicants' costs below in the Hull and Holderness Magistrates' Court.
FAPL is owned by the twenty constituent football teams of the Premier League. Its revenues are directed towards the promotion of association football in the United Kingdom and abroad. It has played no part in these proceedings before being served with the costs application. It resists the application on the ground that there is either no jurisdiction to make a costs order against it, or in the alternative, no justification for such an order.
Background
The application arises out of the Applicants' successful appeal to quash their convictions for summary offences pursuant to s.297 of the Copyright, Designs and Patents Act 1988 ("s.297").
Section 297 provides:
" 297.—Offence of fraudulently receiving programmes.
(1) A person who dishonestly receives a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(2) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
In relation to a body corporate whose affairs are managed by its members "director" means a member of the body corporate."
The Applicants, who are father and son, operated a number of public houses in the Humberside area at which they showed live televised football matches through BSkyB ("Sky"). Having formed the view that Sky charged too much, they found another (cheaper) supplier. As a result from 2009 they procured access to feeds of English Premier League football matches which originated from non-UK based broadcasters. The programmes of the matches which the Applicants screened were found to have had been intended to be received or viewed solely in Albania, North Africa and the Middle East, and thus outside the European Union.
Sky charges a subscription for all its live Premier League football. In obtaining foreign feeds the Applicants obtained the benefit of Premier League football at little or no cost. Inevitably, the use of such feeds depresses the revenue stream to FAPL and, according to FAPL, in turn the revenue for distribution to association football clubs and "grass roots" football.
The principal burden of enforcement of s.297 is said to rest with FAPL (because of resource pressures on the police and the Crown Prosecution Service). To this end FAPL engaged Media Protection Services Limited ("MPS") to investigate and prosecute offending publicans, for which services it remunerated MPS. Amongst other things it provided MPS with an indemnity in respect of claims against MPS arising as a result of or pursuant to the proper fulfilment by MPS of its obligations.
MPS is an organisation said to be wholly independent of FAPL. Kenneth Parker J in Media Protection Services Ltd v Crawford and another [2013] 1 WLR 1068 (" Crawford") (at paragraph 44) said this:
" ….MPS was independent of FAPL and was carrying out its own independent commercial activities in laying the relevant information."
The Applicants were arrested by Humberside police on 1 st February 2010 following raids on the public houses being operated by them. The police then took no further action. MPS, however, commenced a private prosecution in June 2010. That prosecution led to the Applicants' convictions at Hull and Holderness Magistrates Court (District Judge Rutherford) on 16 th February 2011 following a two-day trial. Both sides were there represented by junior counsel, each of whom provided written submissions to the Court of which we have also had sight. Upon conviction, substantial fines were imposed on the Applicants, together with an adverse costs order. The fines totalled £60,000 and a costs order of some £25,000 was made.
The twenty two informations leading to the Applicants' convictions had been laid before the court by a director of MPS, a Mr Raymond Hoskin.
The Applicants appealed by way of case stated pursuant to s.111 of the Magistrates' Court Act 1980 against conviction and sentence on 9 th March 2011.
Pending those appeals the Divisional Court gave judgment in Crawford (see paragraph 9 above). It held that the laying of information by Mr Hoskin was a nullity as it constituted a "reserved legal activity" within the meaning of s.12 of the Legal Services Act 2007 for which activity Mr Hoskin was not authorised. (It was in this context that Kenneth Parker J made the observation referred to in paragraph 9 above, namely that MPS was independent of FAPL and carrying out its own independent commercial activities in bringing the prosecution. He saw force in the submission that, had FAPL assumed corporate control of MPS, an executive of such a merged entity, as a party to the proceedings, could lay an information without infringing s.20 of the Solicitors Act 1974.)
In the light of this conclusion, on 20 th May 2014 the Applicants' convictions were also duly quashed by the Divisional Court (Treacy LJ and Nicol J). On that occasion, the Applicants say that, as a pragmatic solution which they accepted, no order as to the costs of appeal was made. However, now sitting as the Administrative Court, it was directed that if any other costs were to be sought against anyone other than MPS (or Hull and Holderness Magistrates' Court) an application notice had to be issued within twenty-one days. That order led to the issuing of the application that ultimately came before us sitting as a Divisional Court.
MPS is now in liquidation and Mr Hoskin is deceased. In these circumstances, and as already indicated, the Applicants now seek their costs below from FAPL.
Murphy v MPS [2012] EWHC 529 (Admin) (" Murphy"): the costs ruling
It is convenient, before turning to the legislation and submissions before us, to summarise the costs ruling in Murphy which forms the basis of the Applicants' application to this court.
The ruling in Murphy arose out of separate litigation which itself had given rise to six substantive and reported decisions. The High Court, Court of Appeal and Court of Justice of the European Union ("the CJEU") considered the compatibility of the offence created by s.297 with European law in circumstances where the foreign television feeds were procured from operators in other member states. The CJEU concluded (see its report at [2012] 1 CMLR 29) that a prohibition on the sale by European broadcasters of decoders outside their territory (allowing for receipt of feeds in the UK) from other member states was contrary to European Law. Mrs Murphy's defences (based on European free movement principles) succeeded.
For the avoidance of doubt, the prohibition on sale by non-European broadcasters of decoders outside their territory (allowing receipt of feeds from non-member states), such as those found by the District Judge to have been obtained by the Applicants in this case, was not addressed in Murphy.
Against that background the appeal before the Divisional Court in Murphy (Stanley Burnton LJ and Barling J) was allowed on 24 th February 2012. The question of costs was dealt with in a separate judgment: [2013] 3 CMLR 46.
The principal issue in relation to costs was whether or not the parties' costs should be determined under the civil or criminal costs regime.
On this issue the Divisional Court held that the civil costs regime applied. The essential reasoning of the court can be seen in the following passage:
" 14. Neither Mr Howe QC nor Mr Mellor QC was able to make any submission as to the criteria to be applied by this Court for the purpose of deciding whether to apply the civil costs regime or the criminal costs regime. Nor did they refer to any authority that might guide us.
15. Clearly, save in exceptional cases, prosecutions and appeals in criminal cases should be and will be subject to the criminal costs...
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...in that decision, was followed by a Divisional Court (Foskett and Carr JJ) in Hull and Holderness Magistrates' Court v Darroch [2014] EWHC 4184 (Admin), where the court concluded that there was nothing exceptional about the case (an appeal by way of cases stated) and the criminal costs sch......