Private Prosecutor's breach of duty of candour proves costly

On 23 May, the High Court (Lord Justice Gross and Mr Justice Sweeney) allowed an application for judicial review against the refusal of Leeds Magistrates' Court to dismiss summonses that had been issued upon the application of a private prosecutor. The Claimants successfully argued that a private prosecutor is subject to a duty of candour in applying ex parte for a summons in the Magistrates' Court; that the private prosecutor had failed to comply with that duty; and that the summonses should be quashed. This case underlines the importance of compliance by prosecutors, public and private alike, with their duty of candour: "compliance with the duty of candour is the foundation stone upon which such decisions are taken ...its importance cannot be overstated.​"

Today, the High Court made an Order for costs against the Private Prosecutor in the sum of £250,000. The Court had "no hesitation" in concluding that all costs incurred by the Claimants, both in the High Court and the Magistrates' Court, should be assessed on an indemnity basis. The private prosecution was commenced on foot of culpable breaches of the fundamental duty of candour. The Prosecutor had then sought to continue the prosecution on a wholly inappropriate basis. When the case came before the High Court there was deliberate non-disclosure of an obviously relevant document, followed ultimately by a wholly inappropriate attempt to argue that a deemed costs order had been made: "thus, from first to last, the Interested Party’s prosecution of the litigation has involved unreasonable conduct which has resulted, overall, in a significant waste of court time and resource." In reaching its conclusion, the High Court referred to the case of R (Haigh) v City of Westminster Magistrates’ Court [2017] EWHC 232, in which a costs Order of £190,000 was made against a Private Prosecutor, whose decision to launch a private prosecution was a "strikingly inappropriate step to take".

Adrian Darbishire QC and Rachna Gokani represented the Claimants, instructed by Neil Swift and Maria Cronin of Peters & Peters.

Adrian Darbishire QC and Peters & Peters also represented former Gibson Dunn partner Peter Gray in R (Haigh) v City of Westminster Magistrates’ Court

Judgment: [2018] EWHC 1233 (Admin)

Costs Judgment: [2018] EWHC 2842 (Admin)

Please click here for Adrian and Rachna's briefing note on this matter.

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