R TM Eye Ltd v The Crown Court at Southampton
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde,Mrs Justice Cutts |
| Judgment Date | 30 September 2021 |
| Neutral Citation | [2021] EWHC 2624 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4368/2020 |
[2021] EWHC 2624 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Holroyde
Mrs Justice Cutts DBE
Case No: CO/4368/2020
Mr Rupert Cohen (instructed by Edmonds Marshall McMahon Ltd) for the Claimant
Ms Melanie Cumberland (instructed by Government Legal Department) for the Second Interested Party
The Defendant and the First Interested Party were not represented
Hearing dates: 13 July 2021
Approved Judgment
Lord Justice Holroyde and
The First Interested Party (“Ms Peters”), trading via her Facebook page, sold jewellery, handbags and clothing which appeared to be, but were not, the products of Pandora, Louis Vuitton and Hugo Boss (“the brand owners”). A private prosecution was brought against her by TM Eye Limited (“the Claimant”). On 4 September 2020, in the Crown Court at Southampton, Ms Peters pleaded guilty to four offences of unauthorised use of a trade mark in relation to goods, contrary to section 92 of the Trade Marks Act 1994. She was sentenced by His Honour Judge Rowland (“the judge”) to a total of six months' imprisonment, suspended for two years, with a requirement of 150 hours of unpaid work and a rehabilitation activity requirement. The judge declined to make an order for costs against her, on the ground of her impecuniosity. He also refused an application by the Claimant, pursuant to section 17 of the Prosecution of Offences Act 1985 (“section 17”), for payment of its costs from central funds. In a subsequent written ruling, given on 21 September 2020, the judge declined to revisit that decision.
The Claimant is aggrieved by the refusal of its application for costs out of central funds. It seeks permission to apply for judicial review, claiming an order quashing both of the judge's decisions in that regard, which it contends were unreasonable, irrational and unlawful. The claim raises issues as to the correct approach to applications by private prosecutors under section 17. This is the judgment of the court.
The court has had the assistance of written and oral submissions by Mr Cohen on behalf of the Claimant and Ms Cumberland on behalf of the Lord Chancellor, who was joined to the proceedings as the Second Interested Party. We are grateful to them both. The Defendant, the Crown Court at Southampton, has in the usual way acknowledged service but played no part in the proceedings. Ms Peters has also played no part.
The Claimant:
The Claimant is a firm of private investigators. Many of the investigators are retired police officers, some of whom held high rank. As part of its work, the Claimant carries out investigations into, and in some cases private prosecutions of, persons selling counterfeit goods in the UK. Its managing director Mr David McKelvey has provided a statement giving details of the number of investigations and prosecutions undertaken by the Claimant in this area, and the important deterrent effect of their work.
Mr McKelvey states that the Claimant is granted powers of attorney by various brands to investigate and prosecute offenders who are using the trademark of that brand without consent. The powers of attorney are general in their terms. Brand owners provide training to enable the Claimant's employees to identify counterfeit items. When the Claimant has identified a case which merits investigation, specific authority to proceed is requested from the brand owner concerned.
The Claimant's remuneration for such work is derived from awards under section 17, not from the brand owner concerned. Mr McKelvey states that during the financial year 2019/2020 the Claimant conducted a total of 101 prosecutions (not all involving counterfeit goods), in relation to which it was awarded a total of £1,162,769 from central funds. He makes the point that all of that sum has been assessed as reasonable, and states that the Claimant's costs are “invariably reduced” by the costs authorities. He further points out that of the total sum awarded, only about £372,000 (a little under one-third) was paid in respect of the costs of the Claimant: the remainder was compensation for the costs of the Claimant's legal representatives in conducting the prosecutions.
During the same period, the total number of private prosecutions in respect of which costs were awarded from central funds was 276: the Claimant therefore conducted about 36% of that total. As a result of a question asked by the court during the hearing, the parties subsequently made further enquiries and helpfully agreed that the Claimant received 9.4% of the total amount paid from central funds in relation to those 276 private prosecutions.
Before coming to the circumstances which have given rise to this case, it is appropriate to set out the statutory framework.
The statutory framework:
So far as is material for present purposes, section 17 provides:
“ 17 Prosecution costs
(1) Subject to subsections (2) and (2A) below, the court may –
(a) in any proceedings in respect of an indictable offence; and
(b) in any proceedings before a Divisional Court of the Queen's Bench Division or the Supreme Court in respect of a summary offence;
order the payment out of central funds of such amount as the court considers reasonably sufficient to compensate the prosecutor for any expenses properly incurred by him in the proceedings.
(2) No order under this section may be made in favour of —
(a) a public authority; or
(b) a person acting –
(i) on behalf of a public authority; or
(ii) in his capacity as an official appointed by such an authority.
(2A) Where the court considers that there are circumstances that make it inappropriate for the prosecution to recover the full amount mentioned in subsection (1), an order under this section must be for the payment out of central funds of such lesser amount as the court considers just and reasonable.
(2B) When making an order under this section, the court must fix the amount to be paid out of central funds in the order if it considers it appropriate to do so and –
(a) the prosecutor agrees the amount, or
(b) subsection (2A) applies.
(2C) Where the court does not fix the amount to be paid out of central funds in the order –
(a) it must describe in the order any reduction required under subsection (2A), and
(b) the amount must be fixed by means of a determination made by or on behalf of the court in accordance with procedures specified in regulations made by the Lord Chancellor.
…”
Section 18 of the 1985 Act provides for an award of costs to be made against a convicted defendant. By subsection (1) the Crown Court or a magistrates' court may “make such order as to the costs to be paid by the accused to the prosecutor as it considers just and reasonable”. No issue arises in this case as to the judge's decision not to exercise that power against Ms Peters.
Rule 45.4 of the Criminal Procedure Rules (“rule 45”) applies where a court can make an order under section 17. Its provisions include the following:
“ Costs out of central funds.
45.4
…
(4) Where a person wants the court to make an order that person must apply as soon as practicable and –
(a) outline the type of costs and the amount claimed, if that person wants the court to direct an assessment; or
(b) specify the amount claimed, if that person wants the court to assess the amount itself.
(5) The general rule is that the court must make an order, but –
(a) …
(b) the court may decline to make a prosecutor's costs order if, for example, the prosecution was started or continued unreasonably.
(6) If the court makes an order –
(a) the court may direct an assessment under, as applicable –
(i) Part III of the Costs in Criminal Cases (General) Regulations 1986, …
(b) the court may assess the amount itself in a case in which either –
(i) the recipient agrees the amount, or
(ii) the court decides to allow a lesser sum than that which is reasonably sufficient to compensate the recipient for expenses properly incurred in the proceedings;
…
(7) If the court directs an assessment, the order must specify any restriction on the amount to be paid as the court considers appropriate.
…”
Those provisions are reflected in the Practice Direction (Costs in Criminal Proceedings) 2015, contained in Division X of the Criminal Practice Directions 2015. Paragraph 2.6.1 states, in relation to an award of a private prosecutor's costs out of central funds:
“An order should be made save where there is good reason for not doing so, for example, where proceedings have been instituted or continued without good cause.”
Paragraph 2.6.4 states:
“If there has been misconduct a private prosecutor should not be awarded costs out of central funds.”
The Costs in Criminal Cases (General) Regulations 1986 contain regulations made by the Lord Chancellor pursuant to section 17(2C)(b). Regulation 6 provides for a claim for costs to be submitted, in prescribed form, to “the appropriate authority” – namely (in this context) a Determining Officer (“DO”) in the Criminal Cases Unit. Regulation 7 provides as follows:
“ Determination of costs
7. (1) The appropriate authority shall consider the claim, any further particulars, information or documents submitted by the applicant under regulation 6 and shall allow such costs in respect of –
(a) such work as appears to it to have been actually and reasonably done; and
(b) such disbursements as appear to it to...
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