R v Dr Errol Cornish (First Defendant) Maidstone and Tunbridge Wells NHS Trust (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Coulson |
| Judgment Date | 15 April 2016 |
| Neutral Citation | [2016] EWHC 779 (QB) |
| Docket Number | Case No: T20157298 |
| Court | Queen's Bench Division |
| Date | 15 April 2016 |
[2016] EWHC 779 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice,
Rolls Building,
Fetter Lane, London, EC4A 1NL
The Hon Mr Justice Coulson
Case No: T20157298
and
Mr John Price QC and Ms Sarah Campbell (instructed by Crown Prosecution Service) for the Prosecution
The First Defendant did not appear and was not represented
Mr John Cooper QC and Mr Mike Atkins (instructed by DAC Beachcroft) for the Second Defendant
Hearing date: 11 April 2016
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.
ON COSTS
The Hon. Mr Justice Coulson:
INTRODUCTION
On 9 October 2012, Mrs Francis Cappuccini died whilst in the care of the second defendant ("the Trust"). There can be no doubt that she should not have died and, in the absence of any clear explanation of what had happened, there were concerns that she may not have received proper anaesthetic care. The early investigation revealed that, following an Examination Under Anaesthetic ("EUA"), Mrs Cappuccini was slow to come round from the anaesthetic. Her breathing was managed by an anaesthetist, Dr Nadeem Azeez, using a face mask and bag. For a part of this period, he was assisted by a more senior anaesthetist, Dr Cornish. Thereafter, more senior anaesthetists became involved and Mrs Cappuccini was reintubated. Tragically, Mrs Cappuccini's condition did not improve. She subsequently had a cardiac arrest and died at 16:20 that afternoon.
The Cappuccini family instructed Kingsley Napley. They in turn instructed an expert, Professor Hopkins. His investigations focused on the roles of Dr Cornish and Dr Azeez and, subsequently, the Trust.
In February 2014, the inquest into Mrs Cappuccini's death was adjourned as a result of the police investigation. Dr Azeez went back to Pakistan and did not return to the United Kingdom. Thus, when the criminal proceedings commenced arising out of Mrs Cappuccini's death, the two defendants were Dr Cornish (who was charged with gross negligence manslaughter) and the Trust (who were charged with corporate manslaughter).
The chronology of the proceedings was as follows:
(a) The decision to prosecute was made on 14 April 2015 and proceedings were commenced a week later.
(b) The indictment and the preliminary case summary, together with other papers, were served on 30 April 2015.
(c) The preliminary hearing took place at Maidstone Crown Court on 22 May 2015.
(d) On 14 August 2015 there was a hearing of the Trust's application for the venue to be changed from Maidstone to Inner London Crown Court, which is what happened. All other matters were adjourned for a case management hearing on 16 October 2015.
(e) On 16 October 2015 I dealt with the preparatory hearing and gave rulings as to retrospectivity and the complaint raised by the Trust that the Crown had failed to identify the senior management involved in the relevant events and activities. I also ordered further particulars to be provided by the Crown. These were provided on 2 November 2015.
(f) On 10 December 2015, the Trust served their expert's reports. Pursuant to my order, the experts instructed by all three parties then met on a number of occasions starting on 29 December 2015.
The trial began in January 2016 at Inner London Crown Court. Following the close of the Crown's case, submissions of no case to answer were made on behalf of both Dr Cornish and the Trust. On 27 January 2016 I provided a written ruling in which I upheld those submissions. On 28 January 2016, the Crown indicated that it did not intend to appeal that ruling and I directed the jury to return verdicts of not guilty against both defendants.
At the end of the trial, both defendants indicated that they were considering making an application that the Crown pay their costs. Shortly thereafter, Mr Stern QC, leading counsel for Dr Cornish, indicated formally to the court that Dr Cornish would not be making any such application. However, the Trust indicated that they would make such an application and they have now provided a good deal of documentation in support of their claim for costs in a sum just short of £500,000. As a result of my absence on circuit in February and March 2016, it was only possible to hear the Trust's application for costs on 11 April 2016.
THE LAW
Statutory and Procedural Provisions
Section 19 of the Prosecution of Offences Act 1985 provides:
" 19. Provision for orders as to costs in other circumstances.
(1) The Lord Chancellor may by regulations make provision empowering magistrates' courts, the Crown Court and the Court of Appeal, in any case where the court 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, to make an order as to the payment of those costs."
Regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 provides:
"(1) …where at any time during criminal proceedings [the court] is satisfied that costs have been incurred in respect of the proceedings by one of the parties as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, the court may, after hearing the parties, order that all or part of the costs so incurred by that party shall be paid to him by the other party
…
(3) An order made under paragraph (1) shall specify the amount of costs to be paid in pursuance of the order."
Rules 45.2(3) to (7) of the Criminal Procedure Rules set out various general rules in respect of costs applications. It is unnecessary to set out those rules here. They mirror closely CPR Part 44. Conduct is identified as a relevant matter when assessing costs.
DPP v Denning [1991] 2 QB 532.
The meaning of 'improper' in the context of Section 19 and Regulation 3 was considered by the Divisional Court in Denning. Nolan LJ said at p.541:
"…it seems to me impossible to maintain that there were no grounds upon which the justices could reasonably conclude that there had been an improper omission on the part of the prosecution. I would add in this connection that the word 'improper' in this context does not necessarily connote some grave impropriety. Used, as it is, in conjunction with the word 'unnecessary,' it is in my judgment intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly…"
This reasoning makes plain the centrality of the conduct of a party when dealing with costs under s.19. That party will almost always be the Crown.
This (relatively broad) test was followed in a number of subsequent Divisional Court cases, including R (Customs and Excise Commissioners) v Leicester Crown Court [2001] EWHC Admin 33; Bentley-Thomas v Winkfield Parish Council [2014] LLR 413; and R (Singh) v Ealing Magistrates' Court [2014] 1978 JP 253.
R v P [2011] EWCA Crim. 1130.
In this case, the crown court judge made a costs order against the CPS on the grounds that he disagreed with the decision to mount and continue a prosecution which failed. Although it was not entirely clear, it appears that the basis for the order was s.19. The appeal was allowed. Hughes LJ (as he then was) said at paragraph 15:
"…the question in this case was not whether the decision to prosecute was right or wrong. It is simply not the judge's function to sit on appeal from a decision of the Crown Prosecutor. There may be very rare cases where the decision is wholly unreasonable…In most cases such as the present, there will be room for a legitimate difference of opinion. It is important that the making of that decision should not be overshadowed by the fear that if a prosecution is continued and fails there may be an order for the payment of costs…We do not say that there will never be a case where a decision to prosecute is so unreasonable that a costs order is appropriate, but we are satisfied that this case was not arguably such…We want to make it clear that we simply do not know whether the decision to prosecute was right or wrong. It is clear that it was made in good faith. Supposing, however, that it was a wrong judgment on a difficult issue, that is not enough to justify an order for costs and it would not have been even if the relevant powers had been properly considered."
R v Evans (Eric)(No. 2) [2015] EWHC 263 (QB).
This is the most recent case on s.19. In a lengthy judgment, Hickinbottom J identified the importance of the test set out in Denning. Following an exhaustive review of law he reached his conclusions on principle at paragraphs 144–146 as follows:
"144. Therefore, it is clear that simply because a prosecution fails – even if it is discontinued or the defendant is found to have no case to answer – that in itself will not be sufficient to overcome the threshold criteria for a section 19 costs order. For example, where there is a change of circumstances during the course of a case (e.g. where a witness does not come up to proof) that does not necessarily render improper an earlier decision to charge or proceed. As Hughes LJ indicated in R v P, where the evidential position does not change and a case fails as a matter of law, then the prosecutor may be more open to a claim that the charge was improper; but, as Simon J properly remarked in Counsell, the test is one of impropriety, and not merely unreasonableness. Again, where a claim fails because of an adverse ruling on a question of law, that does not necessarily mean that the decision to charge was improper: no one has a...
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