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18/04/2022

EPA prosecution costs

Parker, R (On the Application Of) v Bashir & Anor (2022) EWHC 358 (Admin)

A judicial review of a Magistrates Court decision on costs in a section 82 Environmental Protection Act 1990 prosecution.

The prosecution had been brought in respect of a fallen garden wall between two properties, injuring the tenant of one property. That tenant brought an EPA prosecution for a statutory nuisance against the owner of the tenanted property and the owners of the adjoining property. The statutory nuisance and the terms of an abatement order were agreed, and costs as against the owners of the tenanted property were agreed. Costs as against the adjoining owners were left for assessment by the Magistrates Court.

At the hearing, the District Judge made the abatement order, but then on the assessment of costs against the adjoining owners:

Mr Bashir (Defendant) addressed the Court and informed the Judge that he could not afford to pay any costs as he was in so much debt. Mr Bashir informed the Judge that he could not afford legal representation and that was why he appeared to represent himself. The District Judge said that he would make no order for costs against the third and fourth defendants because the third defendant had indicated that he did not have means to pay.

Mr Douglas addressed the court, referring to s.82(12) of the EPA 1990 and explained that a costs schedule had been prepared and was available for the court’s consideration if costs were to be assessed. He offered the court a copy of the costs schedule. District Judge Capstick did not accept the schedule. The District Judge said ‘right then – I’ll assess costs – £100’.

Mr Douglas then addressed the District Judge again and read out the wording of s.82(12), submitting that he should consider the costs incurred by the prosecution and the reasonableness of those costs. He referred to paragraph 11 of the agreed draft order and submitted that the District Judge could take the fifth defendant’s agreement to pay £4,500 plus VAT as a guide as to what was fair and reasonable.

At this point in the Hearing, Mr Bashir made an affirmation and was asked questions by the District Judge.

The District Judge asked Mr Bashir a limited number of questions about his means. The District Judge asked him whether he owned his own home. Mr Bashir averred that he owned a number of properties but said he was ‘getting them all repossessed’. The District Judge did not enquire about how much equity Mr Bashir had in his home, nor about any other assets that Mr Bashir may have had. The District Judge did not require Mr Bashir to fill out a Statement of Means Form. The District Judge did not make any enquiry as to the means of Mrs Bashir who was separately named as fourth defendant in the proceedings. The District Judge did not consider the costs schedule.

Mr Douglas submitted that it was not for the District Judge to consider the likelihood of enforcement, as that would be for the prosecutor to consider at a later date. He submitted that the District Judge should carry out an assessment of the costs schedule and make an award in accordance with section 82(12) EPA 1990.

The District Judge stated “You have done your best Mr Douglas – £100”.

This was the order of which judicial review was sought.

The issue was the meaning of section 82(12) EPA

Where on the hearing of proceedings for an order under subsection (2) above it is proved that the alleged nuisance existed at the date of the making of the complaint or summary application, then, whether or not at the date of the hearing it still exists or is likely to recur, the court … shall order the defendant… (or defendants … in such proportions as appears fair and reasonable) to pay to the person bringing the proceedings such amount as the court … considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.

The High Court held (following R (Notting Hill Genesis) v Camberwell Green Magistrates’ Court (2019) EWHC 1423 (Admin)), that in order to discharge the statutory duty, the Court must answer three questions

Question 1. What “expenses” were “properly incurred” by the private prosecutor in the proceedings (“properly incurred expenses”)? To illustrate this, any item or items of expenditure not “properly incurred” needs to be excluded.
Question 2. What amount is “reasonably sufficient to compensate” the private prosecutor for the properly incurred expenses? To illustrate this, any amount which is higher than “reasonably sufficient to compensate” needs to be reduced to an amount which is “reasonably sufficient to compensate”.
Question 3. If there is more than one defendant responsible, what is a “fair and reasonable proportion” of the expenses – identified by answering Questions 1 and 2 – which any given defendant should be ordered to pay to the private prosecutor?

The District Judge had not done this, instead approaching the issue through the Defendant’s ability to pay.

S.82(1) was a distinct statutory scheme, not part of the general approach to costs in criminal matters.

The Defendant’s means were not relevant to question 1, and could only really be a matter for consideration for question 2 in deciding on a figure within a range of costs that would be reasonably sufficient to compensate the Prosecutor.

And finally, the correct procedure would have been an appeal by way of case stated, not judicial review. But in this instance the claim would be allowed, as the availability of an alternative remedy was a discretionary bar, not a jurisdictional one, and nobody had taken the point pre permission.

Case remitted to a different bench in the Magistrates Court for assessment of Prosecutor’s costs.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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