Law Report: Guide to costs against justices: Regina v Newcastle under Lyme Justices and another Ex parte Massey and others

Queen's Bench Divisional Court (Lord Justice Rose and Mrs Justice Smith).

3 October 1994.

Justices who declined to sign a consent form in Crown Office civil proceedings and who did not appear at the hearing might, in an appropriate case, have an order for the costs of the hearing made against them.

The Divisional Court gave guidance on the circumstances in which an order for costs could be made against justices in Crown Office cases.

The justices committed the applicants to prison for failing to pay their community charge. The applicants applied for judicial review on the ground that the justices failed to consider alternative methods of enforcing payment, relying on R v Wolverhampton Justices, Ex parte Mould (1992) RA 309.

The justices declined to sign a consent order quashing the committal orders. At the judicial review hearing the justices did not appear and the committal orders were quashed. The Divisional Court was asked to give guidance on the making of orders for costs against the justices.

Nigel Pleming QC and Ian Wise (Tyndallwoods & Millichip) for the applicants; James Findlay (Cutts Shiers, Chesterfield) for the justices.

LORD JUSTICE ROSE, giving the court's judgment, said that there was, by virtue of section 51(1)B the Supreme Court Act 1981 as amended, jurisdiction to award costs against justices in judicial review proceedings and under section 28(A) on appeals by way of case stated.

Justices who merely filed affidavits and did not appear before the Divisional Court or the High Court would not, without more, normally be visited with a costs order. Although justices were served with a notice of proceedings and were a party, for more than a century it had not generally been the practice to award costs against them in prerogative writ and judicial review proceedings.

Justices should not generally appear before the Divisional Court or the High Court unless their bona fides was called into question or there were other exceptional circumstances. If they did appear they were unlikely to recover costs if successful and would be at risk to costs if they lost.

If they did not appear, an order for costs in relation to the merits of the application or appeal was only likely to be made against them in the exceptional circumstances identified in R v Willesden Justices, Ex p Utley (1948) KB 397 and R v Liverpool Justices, Ex p Roberts (1960) 2 All ER 384.

Justices and other tribunals who declined to sign a consent in Crown Office civil proceedings in accordance with the Practice Direction (1982) 1 WLR 979 so that costs of appearing before the Divisional Court or the High Court were unnecessarily incurred by other parties, might, in an appropriate case, have an order for such costs made against them even if they did not appear. Such costs referred to the costs of unnecessary representation at the hearing and not to the costs of the proceedings generally, which could only be awarded against non-appearing justices in exceptional circumstances.

The purpose of the Practice Direction was to prevent unnecessary costs from being incurred. The pressure of business in the Crown Office List had increased enormously and any sensible steps for the economic despatch of such business must be encouraged by the court. The ability to make an order in an appropriate case against justices and other tribunals who did not consent when they should was salutary and necessary.

An appropriate case for an order for costs to be made was where the justices behaved unreasonably in all the circumstances. The quality of the original decision, whether it was merely wrong in law or flagrantly perverse, albeit one of the factors, should not be determinative of the result.

It was necessary to look at all the circumstances in which the justices or tribunal were invited to consent: that would include the attitude to the judicial review or appeal proceedings of the prosecution or other body which instituted the original proceedings, the information provided to the justices or tribunal and the time given to them to consider whether to consent, the type of consideration needed (whether independent legal advice was necessary) and the nature of the flaw in the challenged decision. The more obviously perverse, the more readily should consent be given and, if withheld, the more readily should costs be ordered.

No final costs order should be made without giving the justices or tribunal the opportunity to be heard. Where justices did not appear, it would be appropriate to extend the seven-day time limit for an application to challenge a costs order under RSC Ord 35 rule 2 to 21 days from the receipt of the transcript of the judgment by the justices' clerk. In the present cases, the parties had agreed that neither side would seek an order for costs against the other.