42 Bedford Row Housing Law Bulletin: s.82 EPA 1990 Prosecutions and Costs

The proportionality of costs in an Environmental Protection Act 1990 prosecution

R. (on the application of Notting Hill Genesis) v Camberwell Green Magistrates' Court [2019] 5 WLUK 124

The framework for assessing costs

The law on the recovery of costs in EPA prosecutions can be summarised as follows:

• A Magistrates’ Court is not entitled to refuse costs under s.82(12). It is bound to order costs, provided that it was satisfied that the statutory nuisance existed at the time of the complaint.
• Costs incurred pursuant to Contingency Fee Agreements are recoverable pursuant to s.27(1) of the Access to Justice Act 1999.
• A broad-brush approach should be given to the assessment of costs and requires only the crudest form of taxation: Taylor v Walsall and District Property and Investment Co Ltd (1998) 30 HLR 1062.
• The court has a wide discretion to make an order for costs which is ‘just and reasonable’ pursuant to s.64 of the Magistrates Courts Act 1980.
• The CrimPR r.45.2(7) provides a list of relevant factors to the assessment of costs including (a) the conduct of all the parties; (b) the particular complexity of the matter or the difficulty or novelty of the questions raised; (c) the skill, effort, specialised knowledge and responsibility involved; (d) the time spent on the case; (e) the place where and the circumstances in which work or any part of it was done; and (f) any direction or observations by the court that made the costs order.
• A challenge to the amount of costs claimed is usually limited to an argument about whether certain items in a schedule of costs were as a result of an “unnecessary or improper act or omission”: The Costs in Criminal Cases (General) Regulations 1986 (1986/1335), in particular, Regulation 3. The CrimPR r.45.8 sets out the procedure to be adopted when this is alleged, and a form of application is required which can be found at http://www.justice.gov.uk/courts/procedure-rules/criminal/forms-2015#Anchor10
• The High Court will rarely interfere with a costs order and then only because the order was perverse: R v Southend Stipendiary Magistrate ex p. Rochford District Council [1995] Env. LR 1.

R (on the application of Notting Hill Genesis) v Camberwell Green Magistrates' Court [2019] 5 WLUK 124

This was a Judicial Review of the Magistrates’ Court’s decision to award costs to a solicitor in an EPA prosecution. The judgment was given ex tempore and only summary reports are available on Westlaw and Lawtel.

The facts

There had been a private prosecution under s.82 of the Environmental Protection Act 1990 relating to the landlord’s alleged failure to abate a statutory nuisance in the form of a mouse infestation, caused by disrepair, at the tenant’s property.

The case had been settled between the parties in straightforward terms: the tenant had been rehoused, paid £2,500 in damages, and the landlord agreed to pay the tenant’s reasonable legal costs.

The parties could not agree the amount of costs and so the matter was referred to the Magistrates’ Court for assessment.  The court ordered the landlord to pay the tenant’s solicitors’ costs of £21,052.80. The landlord thought that the Magistrates’ Court had erred and applied to it to state a case for the High Court. This was refused, and the landlord sought a Judicial Review of the decision.

The landlord’s grounds were that:

(1)   The decision that the amount was payable and reasonably incurred was one that no other court could have reached;

(2)   The court had not considered whether the amount of costs were proportionate to the amount of compensation eventually agreed, instead the court had erroneously found there was no correlation between the two;

(3)   The court’s reasons for its decision were inadequate;

(4)   The power to order payment under s.82(12) was limited to an order that the defendant pay the person bringing the proceedings. The court had no power to order the costs to be paid to the tenant’s solicitors.

The Judicial Review was successful on all Grounds, the decision quashed and the matter remitted.

Discussion

Whilst an ex tempore judgment, the most interesting element of it concerns the High Court’s determination that the proportionality of the costs are a relevant factor for consideration. As civil practitioners we assume that the proportionality of costs when balanced against what the tenant aims to achieve is an all-pervasive principle.

In criminal cases it is not necessarily so. Indeed, the ‘proportionality’ of costs is not a factor listed in CrimPR r.45.2(7) though a consideration of the relevant factors listed therein may suffice to ensure that costs are in fact proportionate. This begs the question: if costs are to be proportionate, what factors need to be weighed?

When a prosecution is brought under s.82 of the EPA 1990 the tenant alleges that the premises are prejudicial to their health. The court is not primarily concerned with damages but with the protection of the public. When weighing a person’s health, with the risk of developing breathing disorders caused by mould, or catching a disease from rodents, is there a limit to the costs that a reasonable person would incur to achieve an abatement of such a nuisance?

There has hitherto been no guidance on what factors would be relevant to proportionality in an EPA prosecution. Notting Hill Genesis provides an indication from the higher courts that proportionality is definitely in issue in EPA prosecution costs.

To what extent, and what are the relevant factors to consider, remains to be decided in a future case.  

Elizabeth England is a member of the Housing team at 42BR Barristers and specialises in all aspects of housing law.

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