Costs

• Prosecution costs
• 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 prosecutor¹.
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 convicted³. 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 pay⁵.
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 defendant⁶. If the total exceeds the sum the defendant can reasonably be ordered to pay, the court will use its discretion to achieve an acceptable total⁷. Any compensation order will take priority over the fine⁸.
5. The amount to be awarded must be specified by the court in the costs order⁹. There is no power for the court to tax costs¹⁰.

Prosecution costs: procedure

6. 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. 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.
7. A sample Bill of Costs can be found later in this section
8. 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 prosecution¹¹.
9. 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 prosecution¹² (see below for further guidance), including the cost of following reasonable lines of enquiry which did not subsequently form part of the prosecution case¹³;
   • 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;
   • Printing, photographic and/or copying costs invoiced to HSE by external providers;
   • The cost of drawings and models¹⁴; and
   • The cost of any research and testing carried out specifically for the purpose of the investigation and prosecution.
10. 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;
    • Preparing the investigation report, information(s), summons(es), advance information, 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.
11. 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.
12. HSE is listed as a department eligible to reclaim Value Added Tax (VAT) on certain activities, including VAT on solicitor agents’ fees in connection with a prosecution. Therefore, VAT should not be included in any bill of costs to be claimed from a defendant. Any enquiries about this should be directed to HSE’s VAT Liaison Officer, PEFD Finance Unit 2 (FAA).
13. 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.
14. Where the defendant pleads not guilty, you should tell the court at the close of the prosecution case that you will raise the question of costs if there is a finding of guilt; this should ensure that the bench will later give proper consideration to the application. After a verdict of guilty, you should then make an application for costs and inform the court of any agreed figure, or submit your bill.

Defence costs

15. 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 funds¹⁵. The amount to be paid will be such sum as the court considers reasonably sufficient to compensate the defendant for expenses properly incurred in the proceedings. 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)¹⁶.

Costs unnecessarily or improperly incurred

16. 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’)¹⁷.
17. 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 improper¹⁸ 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 paid¹⁹ and should also be encouraged to give reasons for the award.
18. HSE may indemnify any inspector against whom a section 19 order has been made²⁰.

Wasted costs orders

19. 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 costs²¹. 'Wasted costs' are those incurred as a result of any improper, unreasonable or negligent act or omission²² on the part of any representative or an employee of a representative²³.

20. 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.

21. The court must specify the reasons for making the order²⁴ and the amount of wasted costs, and must allow the legal or other representatives and any party to the proceedings to make representations²⁵.

Awards against solicitors

22. The Supreme Court (which includes the Crown Court)²⁶ 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 court²⁷. 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 reply²⁸. This power should only be used in exceptional circumstances not covered by sections 19 and 19A²⁹.

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Footnotes

1. Prosecution of Offences Act 1985 ("POA 1985"), s.18(1).
2. [1997] 1 Cr App R (S) 435.
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. Howe, page 255.
7. R v Northallerton Magistrates’ Court ex parte Dove [2000] 1 Cr App R (S) 136.
8. Powers of Criminal Courts (Sentencing) Act 2000, s.130(12).
9. POA 1985, s.18(3).
10. To ‘tax’ costs is to scrutinise them to determine whether they are excessive or in respect of unnecessary expenditure.
11. 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.
12. 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.
13. See R v Associated Octel Ltd (Costs) [1997] 1 Cr App R (S) 435, page 441.
14. 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.
15. POA 1985, s.16.
16. See Practice Direction (Costs: Criminal proceedings) [2004] 2 All ER 1070, para II.1.1.
17. POA 1985, s.19, and Costs in Criminal Cases (General) Regulations 1986 (S.I. 1986/1335), Reg 3, as amended, in particular by S.I. 1991/789. A s.19 order is only appropriate where the failure is that of the defendant or prosecutor, rather than the legal representative: Practice Direction (Crime: Costs) [1991] 1 WLR 498, para.7.5.
18. 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.
19. Costs in Criminal Cases (General) Regulations 1986, as amended, reg.3(3).
20. 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.
21. POA 1985, s.19A (as inserted by Courts and Legal Services Act 1990, s.111).
22. 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.
23. Guidelines as to the practice and procedure in relation to wasted costs orders can be found in the Practice Direction (Costs: Criminal proceedings) [2004] 2 All ER 1070, Part VIII.
24. Practice Direction (Costs: Criminal proceedings) [2004] 2 All ER 1070 para VIII.1.3 and Ridehalgh v Horsefield (1994) TLR, 28 January.
25. 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.
26. See s1(1) SCA 1981 and R v Smith (Martin) (1974) 1 All ER 651, at 654.
27. 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.
28. Practice Direction (Costs: Criminal proceedings) [2004] 2 All ER 1070, para IX.1.2 .
29. Practice Direction (Costs: Criminal proceedings) [2004] 2 All ER 1070, para IX.1.3.