R David Haigh v City of Westminster Magistrates' Court (Sitting at West London Magistrates' Court) Mr Hisham AL Rayes and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Mr Justice Nicol |
| Judgment Date | 16 February 2017 |
| Neutral Citation | [2017] EWHC 232 (Admin) |
| Docket Number | Case No: CO/6627/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 February 2017 |
[2017] EWHC 232 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Mr Justice Nicol
Case No: CO/6627/2015
and
and
Alun Jones QC and Thom Dyke (instructed by Keystone Law) for the Applicant
Justin Fenwick QC and Andrew Bodnar (instructed by Bryan Cave LLP) for the First and Second Interested Parties
Adrian Darbishire QC (instructed by Peters & Peters) for the Third Interested Party
Hearing dates: 12 October, 2016
Approved Judgment
INTRODUCTION
In these proceedings for judicial review, the Claimant challenges the decision of District Judge Ikram, dated 30 th September, 2015 ("the Decision"), ordering him to pay £230,446.14 to the Interested Parties ("IPs"), by way of costs incurred in respect of the Claimant's application for summonses against them.
The order was made pursuant to s.19 of the Prosecution of Offences Act 1985 ("the Act"). S.19 of the Act provides that the Court may make an order for costs where:
" …it is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of another party to the proceedings."
The wording of s.19 is echoed in Regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 ( SI 1986/1335) ("the 1986 Regulations"). Regulation 3 is, in turn, complemented by what is now Rule 45 of the Criminal Procedure Rules (formerly Rule 76) ("the Crim PR").
Part 45 provides, inter alia, that in deciding what, if any, order to make about costs, the court must have regard to all the circumstances, including the conduct of all the parties: r.45.2(3). Subject to the Court's broad discretion to reduce the amount awarded, where the Court makes an order for the payment of costs, the "general rule" (r.45.2(6)(a)) is that it must be for an amount that is sufficient reasonably to compensate the recipient for costs:
" (i) actually, reasonably and properly incurred, and
(ii) reasonable in amount…."
On an assessment of the amount of costs (r.45.2(7)), relevant factors include:
" (a) the conduct of all the parties;
(b) the particular complexity of the matter or the difficulty or novelty of the questions raised;
(c) the skill, effort, specialised knowledge and responsibility involved;
(d) the time spent on the case;"
Where an order is made for costs to be paid resulting from "unnecessary or improper act etc." (r.45.8), reasons must be given and the court must assess the amount itself: r.45.8 (7) and (8).
Limited permission to bring these proceedings was granted by Blake J, on the papers, by order dated 8 th February, 2016 ("the 8 th February order"). That permission was widened following an oral hearing before Lord Thomas CJ and Singh J on 12 th July, 2016 ("the 12 th July order") – though the 12 th July order was itself careful to limit the scope of the issues advanced before us.
The Claimant submits that the Decision was unlawful or irrational in that:
i) The Defendant (i.e., the magistrates' court) erred in concluding that there had been an unnecessary or improper act or omission on the part of the Claimant ("Ground I: Unnecessary or improper act or omission");
ii) The Defendant took into account irrelevant information by considering the comments of Sir David Steel ("Ground II: Irrelevant information");
iii) The Defendant failed to give the Claimant an adequate opportunity to respond to the claim for costs ("Ground III: An adequate opportunity to respond"); and
iv) The Defendant failed to take account of proportionality when assessing quantum ("Ground IV: The quantum of costs").
THE FACTUAL BACKGROUND
For present purposes, the factual background may be shortly summarised. The Claimant is a British national who, at the material times, was detained in prison in Dubai from May 2014. He had been arrested on suspicion of financial irregularities. In the event, he was convicted of fraud in August 2015 and was due to be released in November 2015.
The Claimant had been employed as Deputy CEO of GFH Capital Ltd ("GFH"), an Islamic investment house in Dubai. The First IP was the CEO of GFH; the Second IP was a senior executive of GFH; the Third IP was, at the material times, a solicitor and partner in the Dubai office of a US law firm, then acting for GFH.
On the 26 th May, 2014, GFH issued proceedings in the Dubai International Financial Centre Courts ("DIFC") alleging, in a nutshell, that the Claimant procured the issue of false invoices so as to divert to his own accounts some US$5 million, in breach of his fiduciary duties. A freezing order was obtained.
The Claimant alleges that the IPs conspired to defraud him and that their conduct further constituted the criminal offence of human trafficking: in essence, the Claimant alleges that between the 1 st April, 2014 and the 23 rd March, 2015, the Interested Parties lured him to Dubai to have him arrested under false pretences.
Notwithstanding these allegations, the Claimant did not go to the law enforcement authorities or agencies in this country. Instead, he applied as a private prosecutor, to Westminster magistrates' court, seeking to lay an information to procure warrants, alternatively summonses, in order to commence criminal proceedings in this jurisdiction, initially against the First and Second IPs and, subsequently, against the Third IP as well. Various versions of the Claimant's application were produced, between 13 th January and 27 th March, 2015.
By order of DJ Roscoe, dated 11 th February, 2015, the Claimant was required to put the IPs on notice of his application.
At a hearing on 9 th April, 2015, the Claimant's application for summonses in respect of the IPs came before DJ Ikram. At that hearing, leading counsel for the Claimant stated that the intention was to commence criminal proceedings with the aims of (1) securing convictions against the Interested Parties; and (2) securing the Claimant's release from custody in Dubai.
The Judge indicated, by way of a preliminary view, that he was not minded to issue the summonses. The hearing was adjourned, part-heard, to a date to be fixed.
By letter dated 20 th April, 2015 ("the 20 th April letter"), the Claimant's then solicitors wrote to the IPs, stating that they would be bringing the matter to the attention of "criminal law enforcement authorities". It was therefore their intention to submit to DJ Ikram that "… justice for our client against the Alleged Conspirators would be better achieved if we adjourn our request for summonses pending the Investigations and decisions of the authorities." The letter went on to say that they had argued "since January" that the matter was urgent and they had considered "that an application for summonses or warrants was likely to be the most expeditious way to bring this matter before a jury". That "no longer applies" and they now believed that the fastest way to bring the matter before a jury was via the law enforcement agencies. A video-link connection to the Claimant was impracticable and risked compromising the Claimant's safety. The letter continued as follows:
" The District Judge [i.e., DJ Ikram] has raised queries as to the motives of the Prosecutor [i.e., the Claimant] in bringing the request for summonses but not because the accusations he makes are ill-founded. It is unlikely therefore that the matter will be resolved for many weeks, and, if he were to issue summonses, we have little doubt that you would seek to challenge such a decision by way of judicial review whilst the conspiracy is continued against our client."
The letter proceeded to assert that the Claimant now had a much more developed evidential case, to which there was "no serious legal answer". Additionally, a further reason for the new approach was that they had received "further significant evidential material" since the 9 th April, which they did not wish to disclose at that stage – as the enforcement agencies would be asked to make appropriate investigations.
By his Ruling dated 12 th June, 2015 ("the 12 th June Ruling"), DJ Ikram dismissed the Claimant's application for summonses to be issued. As the Judge observed, he had initially been invited to treat the application as "withdrawn". The Judge said this:
" The case is part-heard. On the basis that the Applicant does not pursue the application and does not invite the issue of summons in this case and upon the Applicant not objecting to the matter being dismissed rather than marked 'withdrawn', I dismiss the application for summonses to be issued in this case."
The Judge adjourned the question of costs. He was invited by all concerned to consider the application for costs on paper and without a hearing. As will be seen that is what he proceeded to do, despite a subsequent application by the Claimant to adjourn the resolution of that issue.
In the meantime, the civil litigation was proceeding in the DIFC. On the 24 th March, 2015, Sir David Steel made a Ruling ("the DIFC ruling") in respect of an application by the Claimant to vary the freezing order, of which mention has already been made. Much of this ruling is concerned with the terms of the freezing order, together with the variations contended for and is of no relevance for present purposes.
However, at [13] – [14], Sir David Steel traced the history of the substantive proceedings. He recorded the Claimant's acceptance in the Dubai proceedings that GFH had a good arguable case on the merits. The Claimant's...
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