R Mohammad Mumtaz Chaudhary v Bristol Crown Court (1st Defendant) HMRC (2nd Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Fulford,Mr Justice Nicol |
| Judgment Date | 18 March 2015 |
| Neutral Citation | [2015] EWHC 723 (Admin) |
| Docket Number | Case No: CO/17743/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 March 2015 |
[2015] EWHC 723 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Fulford
The Honourable Mr. Justice Nicol
Case No: CO/17743/2013
and
Mr Alun Jones Q.C (instructed by Abbey Solicitors) for the Claimant
Mr James Fletcher (instructed by HM Revenue and Customs) for the 2nd Defendant
Hearing date: 29 July 2014
Costs
Introduction
There is an outstanding issue as to costs in this case. At the conclusion of my judgment on 4 December 2014 (with which My Lord, Mr Justice Nicol agreed), I indicated as follows as to costs:
70. The Court of Appeal is presently considering whether an application under section 59 is a "criminal cause or matter" for the purposes of section 18 Senior Courts Act and section 1 Administration of Justice Act 1960 (Panesar and others: 2014/2830, 2014/2900 and 2014/2901). This is directly relevant to the power of the judge to award costs in the present case. I would adjourn this part of the application until the Court of Appeal has handed down its decision in Panesar. I would then give the applicant 7 days to file any additional submissions on this issue, with 7 days for the second defendant to file submissions in response. I propose that our decision on this discrete issue is handed down in writing thereafter ( [2014] EWHC 4096 (Admin)).
The judgment in Panesar and others v Her Majesty's Revenue and Customs has now been handed down ( [2014] EWCA Civ 1613) and counsel for the second defendant, Mr James Fletcher, has submitted supplementary written submissions on this issue. The claimant has chosen not to file any additional arguments.
In Panesar the Court of Appeal, Civil Division, considered whether a claim by Her Majesty's Revenue and Customs pursuant to section 59 Criminal Justice and Police Act 2001 for authority to retain material seized pursuant to search warrants was a " criminal cause or matter" for the purposes of the route of appeal. Section 18(1)(a) of the Senior Courts Act 1981 provides:
(1) No appeal shall lie to the Court of Appeal –
a) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter.
The Court concluded that the underlying proceedings were a criminal matter, given, inter alia, " section 59 is concerned with what should happen to property which has been seized by the use or purported use of powers which exist in aid of criminal investigations" (see [18]). As a result, the Court of Appeal Civil Division had no jurisdiction to entertain an appeal from a decision of the Divisional Court dismissing the claims for judicial review.
The Present Issue
The judge awarded costs against the claimant on the basis that there was nothing to indicate that he should not apply what he described as the general rule as to costs. He directed an assessment of costs in the absence of agreement. The jurisdiction to which the judge appeared to refer is that set out in the Crown Court Rules 1982 ( SI 1982/1109) (" CCR").
Consistent with the decision in Panesar, the second defendant accepts that a judicial review of a decision under section 59 is a criminal cause or matter for the purposes of section 18 Senior Courts Act 1981 and section 1 Administration of Justice Act 1960.
The enabling provision as regards costs in the Crown Court under the CCR was section 52 Supreme Court Act 1981 (later the Senior Courts Act):
(1) Crown Court Rules may authorise the Crown Court to award costs and may regulate any matters relating to costs of proceedings in that court, and in particular may make provision as to—
(a) any discretion to award costs;
[…]
CCR Rule12 was in the following terms (the critical provision is subparagraph (2), as highlighted):
12.—Jurisdiction to award costs
(1) Subject to the provisions of section 109(1) of the Magistrates' Courts Act 1980 (power of magistrates' courts to award costs on abandonment of appeals from magistrates' courts) and sections 22(4) and 81B(4) of the Licensing Act 1964 (application of section 109(1) of the Act of 1980 to appeals under sections 21 and 81B of the Act of 1964), no party shall be entitled to recover any costs of any proceedings in the Crown Court from any other party to the proceedings except under an order of the Court.
(2) Subject to section 4 of the Costs in Criminal Cases Act 1973 and to the following provisions of this Rule, the Crown Court may make such order for costs as it thinks just.
(2) In the case of an appeal under [section 21 or 67B of the Licensing Act 1964] —
(a) no order for costs shall be made on the abandonment of an appeal by giving notice under Rule 11;
(b) no order for costs shall be made against a person who appeared before the licensing justices and opposed the grant of the justices' licence unless he appeared at the hearing of the appeal and opposed the appeal;
(c) if the appeal, not being an appeal against the grant of a justices' licence, is dismissed, the Court shall order the appellant to pay to the justices against whose decision he has appealed, or such person as those justices may appoint, such sum by way of costs as is, in the opinion of the Court, sufficient to indemnify the justices from all costs and charges to which they have been put in consequence of his having given notice of appeal.
(4) In the case of an appeal under section 81B of the Licensing Act 1964 against a decision of licensing justices, no order for costs shall be made on the abandonment of an appeal by giving notice under Rule 11.
(5) No order for costs shall be made on the abandonment of an appeal from a magistrates' court by giving notice under Rule 11.
(6) Without prejudice to the generality of paragraph (2), the Crown Court may make an order for costs on dismissing an appeal where the appellant has failed to proceed with the appeal or on the abandonment of an appeal not being an appeal to which paragraph (3), ( 4) or (5) applies.
The question raised by the second defendant is whether Rule 12 CCR, insofar as it concerns criminal proceedings, has survived the implementation of the Criminal Procedural Rules (" CPR"). It is argued that in any situation in which the CPR (or any other provision) does not cater for an award of costs, the judge is entitled to resort to Rule 12 CCR in order to make an award of costs. Alternatively, it is contended that the Crown Court as a superior Court of Record has an inherent jurisdiction to regulate its own proceedings and that includes the power to award costs. Part 76 of the Criminal Procedure Rules 2014 (2014/1610) which makes provision for costs in the Crown Court and the Magistrates' Courts does not list applications under section 59 as one of the situations in which the court can make an order for costs.
The first iteration of the CPR (2005/384) was made pursuant to section 69 Courts Act 2003, which provides:
(1) There are to be rules of the court (to be called " Criminal Procedure Rules") governing the practice and procedure to be followed in the criminal courts.
" Criminal courts" are defined as the Court of Appeal Criminal Division, and the Crown Court and Magistrates' Court when dealing with criminal causes or matters (section 68).
The CPR 2005 provided, inter alia, as follows:
When the Rules apply
2.1. (1) In general, the Criminal Procedure Rules apply—
(a) in all criminal cases in magistrates' courts and in the Crown Court; and
(b) in all cases in the criminal division of the Court of Appeal.
(2) If a rule applies only in one or two of those courts, the rule makes that clear.
(3) The Rules apply on and after 4th April, 2005, but do not affect any right or duty existing under the rules of court revoked by the coming into force of these Rules.
[ Note. The rules replaced by these Rules are revoked when these Rules come into force by provisions of the Courts Act 2003, the Courts Act 2003 (Commencement No. 6 and Savings) Order 2004( 2) and the Courts Act 2003 (Consequential Amendments) Order 2004. These Rules reproduce the substance of all the rules they replace.]
By Rule 78 CPR (2005/384):
Crown Court's jurisdiction to award costs in appeal from magistrates' court
78.1. (1) Subject to the provisions of section 109(1) of the Magistrates' Courts Act 1980 (power of magistrates' courts to award costs on abandonment of appeals from magistrates' courts), no party shall be entitled to recover any costs of any proceedings in the Crown Court from any other party to the proceedings except under an order of the Court.
(2) Subject to the following provisions of this rule, the Crown Court may make such order for costs as it thinks just.
(3) No order for costs shall be made on the abandonment of an appeal from a magistrates' court by giving notice under rule 63.5.
(4) Without prejudice to the generality of paragraph (2), the Crown Court may make an order for costs on dismissing an appeal where the appellant has failed to proceed with the appeal or on the abandonment of an appeal not being an appeal to which paragraph (3) applies.
[Note. Formerly rule 12 of the Crown Court Rules 1982. See also the relevant provisions of the Prosecution of Offences Act 1985 and the Costs in Criminal Cases (General) Regulations 1986. As to costs in restraint or receivership proceedings under Part 2 of the Proceeds of Crime Act 2002 see rules 61.19 to 61.22.]
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