Cost awards in Environmental Protection Act 1990 prosecutions

17 May 2019

Local authority and social landlords have seen an increase in recent years in private prosecutions brought against them under section 82, Environmental Protection Act 1990 (“1990 Act”). On 9 May 2019, Supperstone J in R (on the application of Notting Hill Genesis) v Camberwell Green Magistrates’ Court [2019] 5 WLUK 124, High Court, QBD, has laid down some guidance as to how the magistrates’ court should deal with applications for costs in 1990 Act prosecutions. *

By the time a section 82 prosecution comes around to trial, it is often the case that the alleged nuisance has been abated and the prosecution cannot pursue a guilty finding against a Defendant. What happens in these circumstances, however, is that court time is often taken up with a trial for the sole purpose of allowing a prosecutor to recover costs. This is because section 82, 1990 Act provides at subparagraph 12:

“Where on the hearing of proceedings… 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”.

A prosecutor cannot, therefore, prove an offence when the nuisance has been abated (and is not likely to recur) as at the date of the final hearing but they can seek to prove a the alleged nuisance existed at the date of the making of the complaint so as to obtain a costs order in their favour.

This is an extremely frustrating provision not least because the experience is that the costs sought by prosecutors (or more accurately the prosecutor’s legal representatives) – who usually have the benefit of a CFA – are extremely high and go way beyond the level of costs that a county court would award as reasonable if, for example, you had a one day disrepair trial. The magistrates’ court, however, do not appear to take the same approach to assessing costs as one would see in the county court. This leads to landlords either trying to negotiate with the other side to avoid a trial but agreeing to pay relatively hefty costs (the experience being that prosecutor will not withdraw their prosecution unless there is an agreement to pay costs) or to incur the costs of a trial to attempt to avoid a costs order. Having a one- or two-day trial for costs purposes, seems to be a complete waste of court resources that are already over-stretched.

There is little recent case law on the issue of costs in these types of proceedings but the Notting Hill Genesis challenge earlier this month may be welcome news for landlords. Notting Hill Genesis made a claim for judicial review of a decision of the defendant magistrates’ court on costs. The prosecution was not pursued in the magistrates’ court but the parties could not agree on costs. The magistrates’ court held that Notting Hill Genesis should pay the prosecutor’s solicitors costs at £21,052.80.

Notting Hill Genesis’ judicial review claim succeeded: the magistrates’ decision was quashed and the matter remitted back to be heard by a different panel. Supperstone J held: **

(a) the prosecutor’s solicitors had used a senior lawyer, a Grade A fee earner, for a matter which was simple. This resulted in grossly disproportionate costs. The magistrates had erred in failing to deal with Notting Hill Genesis’ submissions on an individual basis. They had failed to consider the use of a Grade A fee earner, which had been unreasonable.

(b) The magistrates had erred in finding that there was no need for a direct correlation between costs, damages and non-financial compensation. If it had considered those matters, it did not properly explain the reasons for its decision.

(c) The magistrates had erred in failing to consider the CFA and in failing to consider its jurisdiction to order a payment under s.82(12). Although the court did not usually consider CFAs, it should have done so given the costs it awarded. The prosecutor’s solicitors were not a party to the proceedings and therefore the magistrates’ order that they be awarded costs was contrary to s.82(12) and outside of their jurisdiction. If the magistrates had considered their jurisdiction and the CFA, they had not given proper reasons.

This case should be of use to landlords in these types of prosecutions and it will be interesting to see how costs arguments now play out in the lower court especially relating to CFAs and whether costs should even be awarded.

Sarah Salmon

*A copy of the full transcript does not currently appear to be available but a summary of the extempore judgment is available on Lawtel and Westlaw.

** The summary from Westlaw has been used to produce this note and the findings of the court remain largely unchanged from that summary.