CO/1266/2006 
Neutral Citation Number: [2006] EWHC 1633 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Tuesday, 27 June 2006
 
B E F O R E:

LORD JUSTICE DYSON 

MR JUSTICE WALKER 

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MEIR GALANDAUER
(CLAIMANT)

-v- 

SNARESBROOK CROWN COURT
(DEFENDANT) 
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MR D SONN (SOLICITOR ADVOCATE) (instructed by Sonn MacMillan) appeared on behalf of the CLAIMANT
THE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED 

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J U D G M E N T 
1.	MR JUSTICE WALKER:  On 17 October 2005 Mr David Sonn, the solicitor advocate for the claimant, persuaded Snaresbrook Crown Court, comprising Mr Recorder Jeremy and a lay justice, to reduce the length of a driving disqualification that had been imposed on the claimant by Redbridge Magistrates' Court.  The claimant had pleaded guilty in that court to the use of a motor vehicle when the number of passengers carried in or on the vehicle was such that its use involved a danger of injury to any person, contrary to section 40A of the Road Traffic Act 1988.  
2.	The Magistrates' Court had disqualified him from driving for six months.  The Crown Court allowed his appeal against sentence and reduced the disqualification to a period of three months.  The Crown Court granted an order for payment of the claimant's costs from central funds, and determined that the sum of £150 plus VAT was reasonably sufficient to reimburse the claimant in respect of legal costs incurred by him.  The claimant applies for judicial review of that determination.  
3.	Costs in criminal cases form the subject of Part II of the Prosecution of Offences Act 1985.  Awards of defence costs out of central funds are dealt with in section 16.  An order in favour of an accused for a payment to be made out of central funds is defined as a defendant's costs order in section 16(1).  By sub-section (3), the Crown Court is given power to make a defendant's costs order where a person convicted of an offence by a Magistrates' Court appeals to the Crown Court and his conviction is set aside or a less severe punishment is awarded.  
4.	Provisions as to the amount to be paid are found in sub-sections 16(6), (7) and (9).  These sub-sections are in the following terms:
"(6) A defendant's costs order shall, subject to the following provisions of this section, be for the payment out of central funds, to the person in whose favour the order is made, of such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.
 (7) Where a court makes a defendant's costs order but is of the opinion that there are circumstances which make it inappropriate that the person in whose favour the order is made should recover the full amount mentioned in subsection (6) above, the court shall-- 
    (a) assess what amount would, in its opinion, be just and reasonable; and 
    (b) specify that amount in the order.
 (8) ... 
 (9) Subject to subsection (7) above, the amount to be paid out of central funds in pursuance of a defendant's costs order shall-- 
    (a) be specified in the order, in any case where the court considers it appropriate for the amount to be so specified and the person in whose favour the order is made agrees the amount; and 
    (b) in any other case, be determined in accordance with regulations made by the Lord Chancellor for the purposes of this section." 
The relevant costs Regulations provide that, in circumstances where the power to assess summarily is not exercised, the matter goes off for taxation.  
5.	The claimant's grounds set out what he says occurred in the Crown Court.  I shall summarise that account before turning to examine the extent to which the claimant's account is disputed.  
6.	It is said on behalf of the claimant that his advocate, having been granted an order for costs from central funds, requested that the determination of the amount payable should be made by an appropriate officer of the court, following the submission of a formal claim for costs in accordance with the costs Regulations.  The court indicated that it wished to specify a sum payable under the order, and asked the claimant's advocate to provide a figure in respect of the costs incurred on the appeal.  After making enquiries, the advocate informed the court that fees incurred by the claimant in seeking advice as to the merits of the appeal, preparation of the appeal and representation at the appeal hearing amounted to £650 plus VAT.  The court indicated that it would allow only £150 plus VAT, but at that stage gave no reason for allowing less than one quarter of the amount claimed.
7.	The claimant's advocate submitted that the court was bound to allow such sum, in respect of such work as appeared to have been actually and reasonably done, as was considered reasonably sufficient to compensate the claimant for expenses properly incurred by him in the proceedings.  The claimant had instructed a solicitor experienced in the field of road traffic law, with an office in central London close to the claimant's home.  An hourly rate of £150 plus VAT was claimed, which was less than that routinely recovered on taxation in road traffic cases.  The court's figure of £150 overall equated to an hourly rate of £35, and it would be impossible to find a solicitor anywhere in the United Kingdom who would represent the claimant at such a rate.  
8.	The court responded that the sum allowed was in the court's discretion and reflected the fact that the claimant's solicitor would have been familiar with the case, having represented the claimant at the Magistrates' Court.  In response, the claimant's advocate submitted that, having decided as a matter of discretion to make an order for defence costs, the amount payable was not a matter of discretion.  Moreover, the claimant had appeared unrepresented at the Magistrates' Court.  The court refused to hear further submissions or to alter the sum specified in the order.  
9.	The claimant's solicitor wrote to the court on 28 October 2005, describing this course of events in the hope that the Crown Court might vary the order of 17 October 2005.  The court replied on 2 November 2005, stating that the resident judge had directed that there would be no variation.  The letter added that the Recorder intended a contribution towards costs in view of the limited success of the appeal.  
10.	In response on 9 November 2005, the claimant's solicitors replied that the Recorder had not cited "limited success of the appeal" as being the reason for allowing only £150 plus VAT.  They added: 
"[The claimant's] advocate advanced the appeal in the following way.  He accepted that the offence ... was one that plainly merited a disqualification, however, he contended that the appropriate period for disqualification should be 3 months not 6 months.  When announcing that the appeal had been allowed, the Learned Recorder expressly commended [the claimant's] advocate for approaching the appeal realistically and stated that the representation that the period of disqualification should be reduced from 6 months to 3 months was accepted and that the appeal would be allowed to that extent ... rather than the appeal having limited success, it was wholly successful."  
11.	The court replied by letter dated 16 November 2005.  This stated that the resident judge had directed that the quantum of contribution from public funds towards an appeal was a matter of judicial discretion; such discretion had been exercised in this case and there would be no variation.  
12.	In response to a further letter from the claimant's solicitor, on 20 December 2005 the court wrote that the resident judge remained of the view that the Recorder wished that a quantified contribution towards costs should be made.  
13.	In an acknowledgment of service lodged on 9 March 2006, the Crown Court submitted for the assistance of this court the record sheet for the appeal.  This merely noted that the appeal against sentence had been allowed.  The magistrates had imposed a fine of £120, which was not affected, and had required a payment of £70 towards the costs of the prosecution.  This too was not affected.  The record sheet indicated that the disqualification had been reduced from six months to three months, and that the defence costs of the appeal of £150 were to be paid out of central funds.  It did not, however, identify any specific reason for either of those decisions.  
14.	The submission from the Crown Court did not take issue with the history of events described by the claimant.  The main point taken by the court in correspondence is an assertion that the Recorder intended only that there should be a contribution towards costs, not a recovery of the full amount of those costs.  I am not sure whether that can be right.  The initial comment by the Recorder when challenged was that the overall amount of £150 plus VAT reflected the fact that the claimant's solicitor would have been familiar with the case from having represented the claimant at the Magistrates' Court.  This to my mind suggests that the Recorder considered that the full amount of expenses properly incurred could be quantified at £150, rather than a determination that the claimant should only recover a proportion of the full amount of expenses properly incurred.  
15.	Even if, however, the Recorder intended that there should only be a contribution towards the full amount of the expenses properly incurred, it seems to me plain that the order cannot stand.  Under section 16(7) of the 1985 Act, where such a course is to be followed by the court, it is necessary for the court to be of the opinion that there are circumstances which make it inappropriate that the person in whose favour the order is made should recover the full amount of expenses properly incurred by him in the proceedings.  However, in this case the court has not identified any circumstances which would make this inappropriate.  Further, under that sub-section the court is required to assess what amount, in its opinion, would be just and reasonable.  The history of events set out earlier in this judgment offers no rational basis for a conclusion that a sum of £150 plus VAT was just and reasonable.  
16.	If, on the other hand, the Crown Court on 17 October 2005 was attempting to quantify the full amount that would be payable under section 16(6), that is the amount reasonably sufficient to compensate the claimant for any expenses properly incurred by him in the proceedings, then the only power to do this arose under section 16(9)(a).  By paragraph (a), it is a prerequisite that the person in whose favour the order is made agrees the amount.  In this case, there can be no basis for thinking that the claimant had agreed the amount of £150 plus VAT. 
17.	For these reasons, which are essentially those advanced by Mr Sonn in his careful and clear submissions for the claimant, I conclude that the part of the Crown Court's order of 17 October 2005, which quantified the defendant's costs at £150, should be quashed.  It is plain that on 17 October 2005, the claimant was willing to agree an amount of £650 plus VAT.  The material before the court offered no basis to think that this amount was inappropriate.  In those circumstances, the interests of justice point strongly towards the substitution by this court of an order for payment of defence costs of £650 plus VAT.  
18.	Under CPR 54.19(3), if the court makes a quashing order and considers that there is no purpose to be served in remitting the matter to the decision maker, it may, subject to any statutory provision, take the decision itself.  In the present case, it seems to me that there is no purpose to be served in remitting the matter to the Crown Court.  There can be no doubt that the only lawful course open to that court would be to assess the amount at £650 plus VAT as sought by the claimant, or to deal with it by taxation under the Regulations.  
19.	Equally, there can be no doubt that, on taxation, the claimant will recover the amount of £650 plus VAT that he seeks.  In those circumstances, sending the matter back to the Crown Court would be a waste of time and expense.  In all the circumstances, the only reasonable course open to the Crown Court would be to agree the figure of £650 plus VAT put forward by the claimant's advocate.  That being so, I consider that this is an appropriate case for the exercise of the power conferred by CPR 54.19, and I would under CPR 54.19(3) decide that the amount of the defence costs order should be specified under section 16(9)(a) of the 1985 Act as £650 plus VAT.  
20.	It is suggested in the 2006 edition of Civil Procedure at paragraph 54.19.2 that normally the court will not be in a position to exercise the power under CPR 54.19(3).  I agree with that observation, but the present case is out of the ordinary.  It is also pointed out that an appropriate course may be to exercise statutory powers, such as those under section 43 of the Supreme Court Act 1981.  This case, however, does not fall within section 43.  
21.	Accordingly, the order I would propose to make would be that the part of the order of the Crown Court on 17 August 2005 which quantifies the defendant's costs order in the sum of £150 shall be quashed, and that in its place there should be substituted a decision that the defendant's costs order shall be quantified in the sum of £650 plus VAT.  
22.	LORD JUSTICE DYSON:  I agree.
23.	MR SONN:  My Lord, I am grateful.  The only matter that remains for me to address your Lordships on is again the issue of costs.  I believe the position to be that under the Prosecution of Offences Act by virtue of sub-section 5 -- 
24.	LORD JUSTICE DYSON:  You are looking at Archbold, are you? 
25.	MR SONN:  Yes, I am sorry, page 892.
26.	LORD JUSTICE DYSON:  Yes.
27.	MR JUSTICE WALKER:  I have the 2005 edition, but I have a pretty good recollection of what is said in section 16, I think. 
28.	MR SONN:  Under sub-section (5), where any proceedings in the criminal cause -- and this, I respectfully submit, plainly is one -- are determined before a Divisional Court, Queen's Bench Division, the court may make a defendant's costs order in favour of the accused.  Obviously, a costs order cannot be made against the appellant.  He plainly does not appear and is not represented.  So the only means by which the claimant in this case can be reimbursed his costs of these proceedings would be by the court making an order for costs from central funds.  I invite your Lordships to direct that the matter is dealt with by way of taxation.
29.	LORD JUSTICE DYSON:  We will so direct.  Thank you very much indeed, Mr Sonn.