Sarah Wood and Sophia Kerridge discuss the recent case of Football Association Premier League and another v Lord Chancellor  EWHC 755 (QB), for Lexis Nexis PSL - Corporate Crime Analysis.
Under section 17 of the Prosecution of Offences Act 1985 (POA 1985), private prosecutors can recover ‘just and reasonable’ costs incurred ‘in the proceedings’ from central funds. In what is a significant decision for private prosecutors, the Divisional Court unanimously held that private prosecutors could recover costs incurred before proceedings were commenced—that is to say, prior to a summons being issued or an information being laid. To come to this decision, the court had to consider what Parliament meant by ‘in the proceedings’, although much of the court’s reasoning was based on public interest considerations. As such, it is doubtful that this interpretation will be applicable to other areas of law. Nevertheless, the case is an important authority for private prosecutors because it allows them to claim costs that were previously not possible. However, the exact remit of these costs is not clear and of course it also remains subject to the court’s discretion to limit costs to what it perceives is just and reasonable.
What are the practical implications of this case from both a general costs jurisdiction perspective and also a private prosecutions perspective?
This decision provides a significant change for private prosecutors who can now expect to be reimbursed for some of their pre-commencement costs. As the court pointed out at para  of its judgment, private prosecutors can incur significant expenses before any criminal proceedings are commenced in the drafting of the summons or charge, assembling witness statements or other materials that are required as part of disclosure. It is notable that this list does not include the word ‘investigation’ and indeed the court was clear that under POA 1985, s 17(2A) prosecutors will only recover as much as is just and reasonable. It remains to be seen the extent to which any preliminary costs will be covered.
It is unclear whether this interpretation of ‘in the proceedings’ will apply beyond POA 1985, s 17; however at first glance it would appear to be limited to just that. Firstly, the court did not suggest that its interpretation should apply any wider than POA 1985, s 17 itself. In fact, the court found that costs should be awarded more generously under POA 1985, s 17 than POA 1985, s 16. It also decided that it was of no assistance to consider the reference to costs ‘incidental to the proceedings’ within civil proceedings, thereby distinguishing its interpretation from other areas of law. Secondly, the court’s decision rested significantly on public interest factors specific to private prosecutions.
What was the background?
The Football Association Premier League and Sports Information Services Ltd (the appellants) had each brought private prosecutions against individuals who had either been found guilty after trial or pleaded guilty. In each case, an order was made that the prosecutor should receive its costs out of central funds pursuant to POA 1985, s 17.
An assessment of costs was made by a determining officer for each appellant. In both cases, the determining officer did not allow the appellants to recover any costs incurred prior to the commencement of proceedings, in other words, costs incurred before the summons was issued or the information laid.
The appellants appealed these decisions to a costs judge who considered the cases together. The costs judge upheld the decisions of the determining officers, that costs or expenses incurred before the commencement of criminal proceedings could not be recovered out of central funds. Nevertheless, the costs judge certified a point of law of general public importance which allowed the appellants to appeal his decision to the High Court. The question was:
‘What is the correct approach for the Court to apply in determining the level and extent of recovery of expenses where they are incurred before the commencement of proceedings?’
The matter came before Mr Justice Nicol sitting as a single judge at the High Court. The case was adjourned to be relisted in front of the Divisional Court.
What did the court decide?
The jurisdiction of the Divisional Court
The Costs in Criminal Cases (General) Regulations 1986 (CCCGR 1986), SI 1986/1335, reg 11(7), sets out that an appeal to the High Court ‘shall be heard and determined by a single judge whose decision shall be final’. In spite of this, the court held that it was possible for a Divisional Court to hear the case. This was because CCCGR 1986 reg 11(7), made specific reference to the CPR. CPR Part 3 gives the court case management powers, including the power to place the case before a Divisional Court (CPR 3.1(2)(bb)).
Recovery of costs incurred before the commencement of proceedings
The court found that costs incurred by private prosecutors before proceedings commence were recoverable out of central funds under the POA 1985, s 17. The court noted that POA 1985, s 16, which allows defendants to recover their costs, and POA 1985, s 17, which applies to prosecution costs, both contained the phrase ‘incurred in proceedings’ and as such, it must mean the same. However, in practice defendants were able to recover some pre-commencement costs. Therefore, it was wrong for the costs judge to have treated the commencement date as a ‘bright line’ before which no prosecution costs could be recovered. R (Hale) v North Sefton JJs  EWHC 257 (Admin) applied.
The court also held that, following the case of Murli Mirchandani v Lord Chancellor  EWCA Civ 1260, there were pragmatic and policy reasons in favour of a more generous approach to prosecution costs being recoverable from central funds compared to a defendant. The court confirmed the public interest in private prosecutions taking place and recognised that if investigative costs were not covered, private prosecutions would struggle to get off the ground. However, this did not mean private prosecutors were being handed a blank cheque since the court retained a power under POA 1985, s 17(2A) to award only as much as was just and reasonable.
The case was remitted to the costs judge.
The court referred to the judgment in R (TM Eye Ltd) v Pama and Co Ltd. How were the costs incurred treated differently in that case?
At para  the court referred to the fact that Master Whalan who, in R (TM Eye Ltd) v Pama and Co Ltd and others (26 February 2021, SCCO reference 239/19 and 240/19) declined to follow Master Rowley’s decision in the present case. In doing so, Master Whalan’s analysis of the relevant case law and statutory interpretation mirrored that of the Divisional Court (see paras – of the judgment) in this case. Notably, Master Whalan concluded that the prosecutor’s precommencement investigative costs fall within the ambit of POA 1985, s 17 and were, prima facie, recoverable subject to reasonableness. No doubt Master Whalan’s decision specifically to allow investigative costs will be relied upon by private prosecutors faced with similar applications in the future.
- Court: Queen’s Bench Division, (Divisional Court), High Court of Justice.
- Judge: Lord Justice Dingemans, Nicol and O’Farrell JJ.
- Date of judgment: 30 March 2021.
This analysis was first published on Lexis®PSL on 19 April 2021 and can be found here (subscription required).
Sarah Wood is Joint Head of the Business Crime Team at 5SAH and is ranked in both Chambers & Partners and Legal 500 for her confiscation and asset recovery work. She is an experienced and highly accomplished practitioner who specialises in criminal and family matters involving high-value assets and complex financial arrangements.
Sophia Kerridge prosecutes and defends in a wide range of criminal cases and is Youth Court qualified. Her experience extends to cases brought by private prosecutors involving trademark and environmental offences. She has experience of professional discipline and regulatory cases and a growing practice in extradition. Sophia also accepts instructions in family law.