Costs

• Prosecution costs
• Prosecution costs: apportionment of costs between co-defendants
• Prosecution costs: procedure
• Defence costs
• Costs unnecessarily or improperly incurred
• Wasted costs orders
• Awards against solicitors

Prosecution costs

1. The court may order a convicted defendant to pay what it considers to be “just and reasonable” costs to the prosecutor ¹. 

2. In R v Associated Octel Ltd (Costs) ², the Court of Appeal stated that the prosecution may claim the costs of carrying out the investigation with a view to prosecuting the defendant, provided a prosecution resulted and the defendant was convicted ³. In that case, the Court held that it was just and reasonable that HSE should be awarded the whole of the costs that arose out of the incident for which the convicted defendant was responsible.

3. The Court of Appeal in Howe ⁴ adopted the approach set out in Octel. It stated that there is no reason in principle either for scaling down the costs awarded so as not to exceed the fine or for not ordering a defendant to pay the whole of the prosecution costs, in addition to the fine, where the defendant is in a position to pay ⁵.  There is no requirement that any sum ordered to be paid to a prosecutor by way of costs should stand in an arithmetical relationship to any fine imposed, but costs ordered to be paid should not ordinarily be greatly at variance to that fine ⁶

4. It is HSE policy to claim the costs it reasonably incurred in carrying out the investigation and bringing the prosecution. The award of costs is at the discretion of the court and may be less than the total amount sought by the prosecution. The court must look at the whole sum (fine and costs) that it is minded to order and consider the impact on the defendant ⁷. If the total exceeds the sum the defendant can reasonably be ordered to pay, the court will use its discretion to achieve an acceptable total ⁸. Any compensation order will take priority over the fine ⁹.

5. In all CPS prosecutions where HSE inspectors were involved in the investigation, you should ask the CPS to claim HSE’s costs. The CPS guidance to its lawyers and caseworkers makes clear that, in such circumstances, the necessary application should be made to the sentencing court ¹⁰.

6. A corporate or individual defendant may hold liability insurance cover which includes the payment of legal costs. This may include provision for prosecution and/or the defendant's own costs. If it is anticipated that the defendant will argue they are unable to pay costs in full, the prosecutor should check the position with the defence prior to sentence. The prosecutor should then make the sentencing judge aware of the position when appropriate as it may affect the judge's order on both quantum of costs and time for payment

7. The amount to be awarded must be specified by the court in the costs order ¹¹. There is no power for the court to tax costs.¹²

Prosecution costs: apportionment of costs between co-defendants

8. The court may apportion costs between co-defendants. If a court decides that one co-defendant is more responsible than the others for the criminal conduct for which they are convicted, then it may order that defendant to pay a greater share of the costs than he would have had to pay if he had been tried alone ¹³. This may be a share of the whole costs of the prosecution, including costs incurred before that defendant was brought into the proceedings ¹⁴.

Prosecution costs: procedure

9. Details of costs incurred by HSE in the course of the investigation and prosecution should be fully set out at each stage of the proceedings and copies taken to court ¹⁵. The bill of costs should summarise:

• work that has been carried out;
• the dates on which the work was done;
• the job title/grade of the person who did the work;
• the time taken;
• the sums claimed;
• any disbursements claimed; and
• the circumstances in which the disbursements were incurred.

10. A sample [Bill of Costs SI44] can be found later in this section.

11. You should note that the various charging regimes may affect the costs which may be claimed; for example, HID may make a separate charge for certain of its investigations and will not claim the costs of these following a prosecution ¹⁶.

12. The application for investigation and prosecution costs may include the following:

• A sum in respect of time spent by HSE staff solely for the purposes of investigating and preparing the prosecution ¹⁷ (see below for further guidance), including the cost of following reasonable lines of enquiry which did not subsequently form part of the prosecution case ¹⁸;
• Travel costs incurred by HSE in conducting the investigation and prosecution. This includes mileage to the investigation site(s) and court, calculated using HSE’s mileage rates in force at the relevant time;
• The cost of searches, such as those obtained from Companies House and/or the Land Registry;
• Witnesses’ costs, including allowances for loss of earnings, travelling costs and subsistence;
• Experts’ and interpreters’ fees;
• Fees for birth certificates and for searching registers;
• The cost of carrying out PNC (Police National Computer) checks
• Printing, photographic and/or copying costs invoiced to HSE by external providers;
• The cost of drawings and models ¹⁹; and
• The cost of any research and testing carried out specifically for the purpose of the investigation and prosecution.

13.The cost of investigating and bringing the prosecution may, depending on the circumstances of the case, include time spent by HSE staff (not only inspectors) on the following, for example:

• Making the area safe;
• Pursuing all reasonable lines of enquiry and gathering evidence;
• Taking witness statements and attending interviews under caution (‘PACE interviews’);
• Serving enforcement notices in relation to the matters under investigation;
• Travelling for the purposes of the investigation and prosecution (such as pursuing reasonable lines of enquiry, gathering evidence, visiting witnesses and bereaved families, and attending court hearings);
• Instructing experts;
• Obtaining and receiving advice from lawyers, including solicitor agents;
• Liaising with any victims, including bereaved families;
• Preparing for and attending any inquest. It is by no means certain that all such costs will be recoverable and it will assist the court if your bill separately records the time spent on each part of your work regarding the inquest e.g. preparing the coroners report, meetings with the coroner, attendance at the inquest etc;
• Preparing the investigation report, information(s), summons(es), initial details of the prosecution case, Friskies schedule and prosecution bill of costs;
• Carrying out disclosure duties;
• Responding to defence enquiries and correspondence;
• Contacting witnesses and arranging for their attendance at court;
• Compiling the court bundle; and
• Court appearances. 

14. In preparing the bill of costs, time should be costed at full economic cost, which may be calculated for each grade from information received annually by local finance managers from RPD.

15. HSE's previous policy was not to claim Value Added Tax (VAT) in any bill of costs from a defendant as previous advice was to the effect that VAT on solicitor agents and counsels fees could be reclaimed. However following further clarification, the only situation in which VAT on legal advice can be recovered is where the advice does not relate to any specific prosecution or enforcement action.Therefore, following a successful prosecution, all cost applications should include VAT for the Solicitors and Counsel costs. Any enquiries about this should be directed to HSE’s VAT Liaison Officer, PEFD Finance Unit 2 (FAA).

16. In all cases where the defendant has pleaded guilty or been convicted after trial, you should apply for an award of costs against the defendant.  You should ask the defence to agree your bill of costs before the hearing. Where the defendant has pleaded guilty, you should make an application for costs after outlining the facts of the case to the court.  You should inform the court of any agreement with the defence in respect of costs, or, where the bill of costs has not been agreed, you should present the bill to the court. 

Defence costs

17.In respect of all offences, the court may make a ‘defendant’s costs order’ in favour of a successful defendant, the effect of which is that his/her costs will be paid out of central funds ²⁰. Such an order should normally be made unless there are positive reasons for not doing so ²¹. The amount to be paid is the sum the court considers reasonably sufficient to compensate the defendant for expenses properly incurred in the proceedings. ²²  A costs order will be made following a successful plea of no case to answer or on acquittal, unless there are positive reasons for not doing so (for example, where the defendant’s own conduct has brought suspicion on him/herself and misled the prosecution into thinking that the case against him/her was stronger than it actually was) ²³

Costs unnecessarily or improperly incurred

18.Costs may be awarded against any party to the proceedings in respect of sums incurred by one party as a result of an unnecessary or improper act or omission by or on behalf of another party (a ‘section 19 order’) ²⁴.

19. HSE has a responsibility to protect public funds and you should, therefore, apply to the court where costs have been incurred as a result of unnecessary or improper ²⁵ conduct by the defence, even in unsuccessful cases.  The court must hear all parties and may then order that all or part of the costs so incurred by one party should be paid by another. The court must be reminded to specify the amount of costs to be paid ²⁶ and should also be encouraged to give reasons for the award.

20. HSE may indemnify any inspector against whom a section 19 order has been made ²⁷.

Wasted costs orders

21. Courts may order a legal or other representative (i.e. any person exercising a right of audience or a right to conduct litigation) to meet the whole or any part of any wasted costs ²⁸. ‘Wasted costs’ are those incurred as a result of any improper, unreasonable or negligent act or omission ²⁹ on the part of any representative or an employee of a representative ³⁰.

22. Even if you win a case and are awarded costs, such acts or omissions on your behalf may result in a wasted costs order being made against you. Should you apply for a wasted costs order to be made against a defendant, it is for the court to decide whether s/he or his/her legal representative should bear the costs, and you should draw the court’s attention to sections 19 and 19A of the Prosecution of Offences Act 1985.

23. The court must specify the reasons for making the order ³¹ and the amount of wasted costs, and must allow the legal or other representatives and any party to the proceedings to make representations ³².

Awards against solicitors

24. The Senior Courts (which includes the Crown Court) ³³ retains a general power under its inherent jurisdiction over officers of the court to order a solicitor to pay any costs thrown away by reason of a serious dereliction of duty on his/her part to the court ³⁴. No such order shall be made unless reasonable notice has been given to the solicitor of the matter alleged, and a reasonable opportunity given to be heard in reply ³⁵. This power should only be used in exceptional circumstances not covered by sections 19 and 19A ³⁶.

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Footnotes

1. Prosecution of Offences Act 1985 (“POA 1985”), s.18(1). Rule 76.5 Criminal Procedure Rules 2011 (“CPR”)
2. [1997] 1 Cr App R (S) 435.and followed in Balshaw v Crown Prosecution Service [2009] Crim. L.R. 532
3. McKinnon, J, at page 441.
4. R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249.
5. Scott Baker, J at page 255.
6. BPS Advertising Ltd v London Borough of Barnet [2006] EWHC 3335 (Admin);
7. Howe, page 255.
8. R v Northallerton Magistrates’ Court ex parte Dove [2000] 1 Cr App R (S) 136.
9. Powers of Criminal Courts (Sentencing) Act 2000, s.130(12).
10. See CPS guidance on [Relations with other agencies SE225].
11. POA 1985, s.18(3).
12. To ‘tax’ costs is to scrutinise them to determine whether they are excessive or in respect of unnecessary expenditure.
13. R v Fresha Bakeries Ltd [2002] EWCA Crim 1451; R v Harrison [1993] 14 Cr App R (S) 419, CA.
14. R v Ceri Davies [1999] 2 Cr App R (S) 356, CA
15. The prosecution should serve upon the defence full details of its costs at the earliest time. Pt 3.6 Practice Direction (Costs in Criminal Proceedings) 2010
16. For an offshore installation in England and Wales, for example, a charge is made to the installation owner or operator for the investigation up to the time a summons is obtained from the magistrates’ court. As such, costs for that part of the investigation should not be claimed as this would be double counting. In these cases, costs would only be sought for matters after the summons has been served.
17. See Neville v Gardner Merchant Ltd [1983] 5 Cr App R (S) 349 and R. v Associated Octel Co Ltd (Costs) [1997] 1 Cr App R (S) 435. The HSE inspector is entitled to the costs of the investigation as well as legal costs.
18. See R v Associated Octel Ltd (Costs) [1997] 1 Cr App R (S) 435, page 441.
19. The payment of costs by a defendant for exhibits and models produced by HSE does not transfer ownership of those exhibits and models to the defendant.
20. POA 1985, s.16.
21. Pt 2.1.1  Practice Direction (Costs in Criminal Proceedings) 2010
22. The case of R (on the application of the Law Society) v the Lord Chancellor [2010] held on 16/6/10 that regulations limiting the costs recoverable by successful defendants in criminal cases to legal aid rates were unlawful.
23. See Rule 76.4.(5) CPR 2011 and  Pt 2.1.1  Practice Direction (Costs in Criminal Proceedings) 2010
24. POA 1985, s.19, and Costs in Criminal Cases (General) Regulations 1986 (S.I. 1986/1335), Reg 3, as amended, and: Pt 4.1 Practice Direction (Costs in Criminal Proceedings) 2010
25. In DPP v Denning [1991] 3 All ER 439, DC, Nolan LJ stated that an "unnecessary or improper" act or omission is one which would not have incurred if the party concerned had conducted its case properly.
26. Costs in Criminal Cases (General) Regulations 1986, as amended, reg.3(3).
27. HSWA 1974, s.26. HSE may indemnify against a s.19 wasted costs order if the inspector honestly believed that the act in question was within his/her powers and that his/her duty as an inspector required or entitled him/her to do it.
28. POA 1985, s.19A (as inserted by Courts and Legal Services Act 1990, s.111). Rule 76.9 CPR 2011
29. The Court of Appeal has laid down guidelines as to the meaning of these words in Ridehalgh v Horsefield and other cases reported with it (1994) TLR, 28 January. ‘Improper’ includes conduct which would ordinarily be held to justify disbarment, striking off or suspension from practice; ‘unreasonable’ describes conduct which is vexatious or designed to harass the other side rather than advance the resolution of the case, with the ‘acid test’ being “whether the conduct permitted of a reasonable explanation”; ‘negligent’ denotes failure to comply with the competence reasonably expected of ordinary members of the profession.
30. Guidelines as to the practice and procedure in relation to wasted costs orders can be found in  Pt 4  Practice Direction (Costs in Criminal Proceedings) 2010
31. Pt 4.2.3 Practice Direction (Costs in Criminal Proceedings) 2010 and Ridehalgh v Horsefield (1994) TLR, 28 January.
32. Costs in Criminal Cases (General) Regulations 1986 (S.I. 1986/1335, as amended by S.I. 1991/789, S.I. 1992/323 and S.I. 1992/2956), reg.3B.
33. See s1(1) SCA 1981 and R v Smith (Martin) (1974) 1 All ER 651, at 654.
34. See Holden & Co v CPS (1990) 1 All ER 368, where the Court of Appeal held that the jurisdiction to award costs against solicitors is not available in cases of mistake, error of judgment or mere negligence, but only where the conduct of the solicitor is inexcusable and such as to merit reproof.
35. Pt 4.6.1  Practice Direction (Costs in Criminal Proceedings) 2010
36. Pt 4.6.3  Practice Direction (Costs in Criminal Proceedings) 2010