R A, R (on the application of) v The Director of Public Prosecutions [2017] EWHC 714 (Admin)

Case No CO/3443/20152017] EWHC 714 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/04/2017
Before
THE HONOURABLE MR JUSTICE FRASER
Between
THE QUEEN (on the application of R A)RespondentTHE DIRECTOR OF PUBLIC PROSECUTIONSApplicant
Tom Little (instructed by the DPP) for ApplicantWilliam Frain-Bell (instructed by Direct Access) for RespondentHearing Hearing dates: 7 March 2017
JudgmentMr Justice Fraser :
[1]This is an application by the Director of Public Prosecutions (“the DPP”) in an action between a party to whom I shall refer as RA and the DPP. An anonymity order was made by Holgate J on 29 July 2015 in judicial review proceedings between RA and the DPP, which were brought by RA as the claimant. The current application is one made by the DPP to set aside or vary a costs order made on 12 October 2016 by James Goudie QC, sitting as a Deputy High Court Judge. That order was the final one in the proceedings. The order (“the Goudie Order”) granted RA his costs in the sum of £20,000, and itself followed an earlier order of 20 June 2016 made by Dinah Rose QC, also sitting as a Deputy High Court Judge (“the Rose Order”). The Rose Order had also dealt with costs, and ordered that there be no order for payment of the costs of the Defendant – the DPP – and that any application for costs by RA had to be filed within 14 days and supported by short submissions. RA did make an application for his costs within that period, supported with written submissions, which were copied to the DPP, and it was that application that led to the Goudie Order being made in his favour. Those acting for the DPP did not respond to that application or those submissions, in circumstances which are explained below.[2]Both the Goudie Order and the Rose Order were made on the papers, and as explained above were both made by Deputy High Court Judges. Nothing turns on either, or both, of these features, and Mr Little for the DPP does not advance any arguments relying upon either of these specific matters in support of the application. They are both, self-evidently, orders of the High Court and are to be treated as such, unless there are proper grounds to set aside or vary them. Mr Little relies upon other features of the case to justify the application to set aside or vary. This case has a long and somewhat regrettable history. It is necessary to explain the background in some detail in order fully to understand the grounds of the DPP’s application. Following the factual background, I will deal with the principles that apply to an application of this nature, which is made by the DPP under CPR Part 3.1(7).[3]The application by the DPP, and indeed the submissions of both parties before me, focused heavily on another order much earlier in the proceedings, dated 28 August 2015, which was made by Collins J (“the Collins Order”). A full understanding of the Collins Order is necessary to understand the application by the DPP. This can be provided by explaining the factual background to the judicial review proceedings themselves, even though the current application is only in respect of costs. The Collins Order was made after an oral hearing at which both parties were represented by counsel.[4]The origin of the judicial review proceedings by RA is as follows. RA had been subject to an investigation concerning a criminal conspiracy in which it was thought by the relevant authorities that he may have been involved. This investigation commenced in 2013, and RA was interviewed under caution by HMRC. He was the chief executive of a company in the healthcare sector that had a number of employees. He began pressing the DPP in about March 2014 for a decision as to whether he was to be charged with any criminal offence. He was therefore seeking what is called a charging decision, and this approach by him continued into 2015. The offences being investigated by HMRC had a number of potential defendants, and were of a sophisticated conspiracy to cheat the Revenue. The healthcare company of which RA was the chief executive had intended to float on the stock market. The ongoing uncertainty about his status, namely whether he was to be charged with any criminal offences or not, not only directly affected these plans but began to damage the company commercially, with the consequent risk to the jobs of those employed at the company. RA wished to have a charging decision made, and considered these commercial aspects of the matter very important. Not least, the jobs and livelihoods of employees of the company meant that the charging decision would have a wider effect than merely on his own personal interests and future. Accordingly, on 29 July 2015, RA finally turned to judicial review proceedings in order to attempt to progress matters, and issued proceedings against the DPP seeking judicial review. The subject matter of those proceedings was, simply put, to obtain an order from the Administrative Court that a decision be made by the DPP as to whether he was to be charged with a criminal offence or offences. The reference for the proceedings was CO/3443/2015. As with all judicial review proceedings, permission would first be needed by RA to proceed with the action.[5]Following the issuing of those proceedings, Holgate J made an order on 29 July 2015 granting anonymity to RA, and requiring that the application for urgent interim relief and permission (required for the judicial review to proceed) be considered at an oral hearing. The proceedings had been issued in the Manchester District Registry but were transferred to the High Court in London. Various steps were then taken in the criminal investigation, including a further interview of RA under caution. The proceedings came before Collins J on 28 August 2015 for the oral hearing regarding permission for RA to bring the judicial review proceedings. I have a transcript of his ruling. I should emphasise that Mr Little did not appear for the DPP at that hearing, as other counsel were used at that stage in the case by the DPP. In those proceedings, the DPP offered an undertaking to the court that a charging decision would be made by 30 November 2015. In one passage of his ruling Collins J stated: “What has been said by [counsel for the DPP], and I record this because it is important, is that there will be a decision by 30th November at the latest. That at least is an undertaking that is given. The question is whether I ought to allow this claim to go ahead in order to seek an earlier decision than that”.[6]Essentially, Collins J decided that he ought not to allow the judicial review claim to proceed so that RA could continue to seek an order from the court for an earlier decision than 30 November 2015, regarding whether he was to be charged.

The judge stated:

“….I am not persuaded that this is a case in which it would be proper for the court to grant permission for this claim to proceed. Having said that I will leave the matter open to this extent. This refusal of permission will not come into effect until the end of November or, if before then, a decision is made, and if no decision is made by 30 November, then I would permit the claimant to come back to make a further application notwithstanding that this order has been made”
. In other words, so long as the DPP complied with her undertaking to take a decision by the date in question, 30 November 2015, the judicial review would not proceed.[7]Counsel for the DPP then applied for costs. In the course of debate with counsel, and discussion about a costs schedule, Collins J stated to counsel for RA, Mr Frain-Bell “You have achieved something”. No order for costs was made, but Collins J stated these would be dealt with in writing and he invited submissions. The outcome of the hearing was recorded in an order, the wording of which was agreed by counsel for both parties. It began with the following recital in relation to the undertaking “AND UPON the Defendant having given an undertaking to the court by its counsel to make a charging decision in relation to the Claimant by 30th November 2015 at the latest” and then continued:
“IT IS ORDERED THAT – 1. permission to apply for judicial review be refused; however, this refusal of permission will not come into effect until such time as the Defendant complies with its undertaking and a charging decision is taken whether on or before 30 November 2015. 2. if no charging decision is taken by 30 November 2015 the Claimant do have permission to apply to this court for a further order, notwithstanding anything else in this order. 3. the Defendant do file with the court and serve on the Claimant a schedule of costs to which it believes it is entitled in respect of preparation of the acknowledgment of service and the production of written material, and 4. the Claimant do file with the court and serve on the Defendant any counter-submissions it wishes the court to take into consideration when making a costs order.”
[8]An undertaking, it should be noted, is effectively a promise to the court itself that something either will, or will not, be done. They are widely used in particular types of proceedings, including those seeking judicial review, and are essential ingredients for some relief, such as urgent injunctions, when undertakings must be given that certain formal steps in the proceedings, time for which has not been available due to urgency, are in fact done, and done promptly. It is clear to me (and I will turn to the relevance or otherwise of this topic later in this judgment) that the agreed terms of the Collins Order accurately reflected the giving of the undertaking as forming part of what had occurred in the proceedings. The giving of the undertaking by the DPP to take a charging decision by the date specified was obviously part of (if not the bulk of) what was taken into account by Collins J in reaching his decision on permission. It can be seen that his refusal of permission in the judicial review proceedings was not to take effect unless the DPP complied with her undertaking.[9]A charging decision was in fact made by the DPP on 27 November 2015, prior to the date in the undertaking, and it was to the effect that RA would not be charged. His defence in the investigation was that he had been engaged in wholly legitimate business activities. The effect of the undertaking having been complied with by the DPP was that RA was refused permission in the judicial review proceedings. As the subject matter of those proceedings was to seek a charging decision, the substantive element of the proceedings fell away on 27 November 2015.[10]The business of the Administrative Court, which deals with applications for judicial review, is administered by the Administrative Court Office (“ACO”). In this case, the ACO starting enquiring with the parties in December 2015 about the status of the case. This was very shortly after the date given in the undertaking, and the refusal/grant of permission had been dependent upon a decision having been taken by the end of November. The enquiries by the ACO of the parties demonstrates, if I may say so, a highly efficient approach to the conduct of the business of the Administrative Court. This case had been, to use the phraseology of Collins J, “left open” and the ACO doubtless will have wanted – indeed, needed – to know whether the matter was entirely disposed of, or other steps needed to be taken by the court. There was a little delay on the part of RA in answering because these enquiries by the ACO were directed, initially, to his solicitors, who had been subject to intervention by the Solicitors Regulatory Authority, but he wrote to the ACO explaining this on 8 January 2016, stating that he was now acting in person, and stating that he wished to apply for his costs.[11]The ACO also wrote to the CPS on 18 January 2016. They used the address of the “Specialist Fraud Division (London – Team A)” at the Crown Prosecution Service (“CPS”). It was clearly the correct address. It was the same address as that used by the DPP on the application form for the hearing before me. The DPP is the most senior public prosecutor in England and Wales, and is the head of the CPS. The letter from the ACO to the CPS was correctly referenced with the reference provided by the DPP in the judicial review proceedings, namely 88ST3242310/JL/RN. It was also correctly referenced with the ACO reference, stating clearly on the letter “Our ref: CO/3443/2015”. The letter explained that RA had told the ACO that a decision not to prosecute him had been taken by the DPP, and that RA now sought his costs. The letter stated:
“If a decision has been taken not to prosecute, and parties are in agreement that this claim for judicial review is now academic, I would be grateful if you could confirm that parties will now enter discussions as to the terms of a consent order to withdraw this claim. In accordance with the Administrative Court’s guidance on costs (copy attached for each of reference) the onus lies on the parties to reach agreement on costs wherever possible. If agreement on costs is not possible, parties can lodge a consent order to withdraw and include a provision for costs submissions to be filed and the matter of costs to be dealt with by a judge on papers.”
The letter provided not only the Administrative Court’s guidance on costs, but a copy of part of the judgment in M v Croydon [2012] EWCA Civ 595 which sets down the principles that will be applied. The Administrative Court’s guidance of December 2013 made clear that it applied to “all consent orders submitted for approval by the court after 13 January 2014 and will guide the terms of other costs orders”. In paragraph 4 it identified what was called “the problem” in these terms:
“The Court faces a significant number of cases, poorly considered and prepared by the parties, which can consume judicial time far beyond what is proportionate to deciding a costs issue after the parties have settled the case. The judicial and other Court resources applied to these cases must be proportionate to what is at stake. That requires efficiency and co-operation from the parties…..”
The guidance also made clear how written submissions on costs should be structured if the parties were unable to agree.[12]That letter to the Specialist Fraud Division at the CPS from the ACO was not answered by anyone on behalf of the DPP, or indeed on behalf of anyone at the CPS at all. Indeed, it is a notable feature of this case that until the Goudie Order was made in October 2016 requiring the payment of costs by the DPP to RA, nothing emanated from that part of the DPP’s organisation dealing with the case at all, after a costs schedule had been lodged on 8 September 2015 by the DPP following the Collins Order. Communications were simply ignored, whether those communications came from RA or from the ACO. All of the communications before me in the evidence from both RA and the ACO to the DPP are correctly referenced and correctly addressed. There was a period of complete silence from the relevant department, that period being in excess of 13 months.[13]RA on the other hand, acting for himself, was rather more efficient (not that higher efficiency by comparison was difficult, given the inaction at the CPS). He made it clear in correspondence to the ACO that he sought his costs, and he updated the Registrar on the steps he was taking to collate his supporting evidence (made more difficult due to the demise of his solicitors’ firm in 2015). He copied all correspondence to the relevant address at the CPS, and also copied the e mails that he sent to the ACO, to the relevant person at the CPS using the correct e mail address.[14]The ACO therefore, having had a reasonable amount of correspondence from one of the parties, progressed the matter. The case was not entirely closed as costs had not been agreed, and one of the parties, the claimant in the proceedings, was actively pursuing an order for his costs. The Rose Order was made on 20 June 2016. This was made on the papers and entirely in accordance with what the Administrative Court guidance on costs had told the parties would occur if they could not agree costs. Given that none of the communications from RA to the relevant department of the CPS had been answered, it is not surprising that no agreement was reached on costs, but RA did at least attempt to do so. In the absence of any proper submissions on behalf of the DPP – all that had been lodged was the schedule of September 2015 – or even any letters or e mails from the CPS (either to the ACO or to RA), it would not have been surprising if on that basis alone the Deputy High Court Judge had concluded (as she did) that the correct order was that “there shall be no order for payment of the Defendant’s costs”. However, in her reasons, the Deputy High Court Judge considered the subject matter of the judicial review proceedings, and the fact that the approach of Collins J was to decide not to grant permission on the basis of an undertaking by the DPP to take a charging decision by a particular date. The Collins Order was properly considered by her and the terms of the Rose Order are entirely understandable. However, she noted that RA was not legally represented, that RA had sent a letter dated 17 March 2016 seeking his costs, but had not supplied a schedule. She therefore ordered that this be done.[15]There was considerable debate before me as to whether Dinah Rose QC had correctly understood the Collins Order, and/or whether this needed to be “put in context” by being read with the transcript of his ruling. In my judgment, the Deputy High Court Judge obviously did understand the Collins Order, and this is so even though she did not have the transcript. It would be odd if orders made by High Court Judges could only properly be understood (by either the court, or the parties) if reference to the underlying transcript were available, and studied. Firstly, the wording of the Collins Order was agreed by counsel who appeared before him. Secondly, Collins J had himself (in the passage quoted in paragraph 5 of this judgment) stated “What has been said by [counsel for the DPP], and I record this because it is important, is that there will be a decision by 30th November at the latest. That at least is an undertaking that is given.” Thirdly, this application is not in any event an appeal from the Rose Order.[16]On 1 July 2016 RA made his application “along with supportive evidence”. This was two pages of submissions, a schedule entitled “Table of Costs” totalling £27,000, copies of all invoices relating to his legal representation, and copies of bank documents demonstrating payment. This was sent by e mail and hard copy to the DPP, again using the e mail address, and postal address for the relevant department of the CPS, that I have identified in paragraphs 11 and 13 above. That application expressly states that it is pursuant to the direction to do so in the Rose Order, although it refers to her as “Mrs Justice Rose QC”. In my judgment, nothing turns on RA’s use of that minor difference in title. The DPP therefore had notice of the making of that application. RA received, again, no response from the CPS for the DPP and on 28 July 2016 expressly notified the ACO of this in a letter. In that letter, he recorded that he had been told by the ACO in a telephone call of 22 July 2016 that there had not been any communication directly to the Administrative Court from the CPS. He asked that his application be dealt with as soon as possible. The ACO thereafter put the application before a judge to be dealt with on the papers and these were put before James Goudie QC sitting as a Deputy High Court Judge.[17]The Goudie Order was made on 12 October 2016 in respect of RA’s application. It stated, in the “Reasons” section:
“The Claimant obtained by the judicial review what he was seeking. An order should be made in his favour. I do not however believe that as between party and party the full amount claimed should be allowed.”
RA was therefore awarded his costs but the quantum was reduced from £27,000, the amount sought, downwards to £20,000.[18]A copy of the Goudie Order was sent, again by e mail and hard copy, to the CPS by RA’s Personal Assistant on 17 October 2016. Receipt of that order by the Specialist Frauds Unit led to a rather more dramatic response – and indeed, a response at last, after such a prolonged period of silence – and those on the receiving end at the CPS finally sprang into action. Obviously an order for payment of costs by the DPP to a litigant was taken seriously. The Junior Treasury Counsel Mr Little was interrupted on paternity leave, and an urgent application was drafted by him. Curt Wise, the person to whom all the e mails had been addressed, promptly communicated with the ACO. Mr James Lewis, a barrister employed by the CPS as a Specialist Prosecutor, made a witness statement in support of that application dated 27 October 2016. He was the individual tasked with making the charging decision in respect of RA. His witness statement makes a number of points, but the most important ones are that Mr Lewis states that he had not received a copy of the Rose Order, but he accepts that he received a copy of RA’s application for costs dated 4 July 2016. It should be noted that this application expressly refers in terms to the Rose Order, which means that the CPS Department dealing with this matter were put on express notice of both the existence and terms of the Rose Order in any event. He states that he was unaware of the need to respond to RA’s application for costs, and assumed that the court would make directions and/or list the case for a hearing.[19]Singh J ordered that the application be dealt with orally, and gave other directions. He also stated in the “Reasons” section that “this case has an unusual history”. That is a very accurate summary of the previous 14 paragraphs of this judgment. The application therefore came before me for an oral hearing, and as well as the witness statement of Mr Lewis to which I have referred, RA served evidence too in the form of a witness statement of his own exhibiting a great many communications that had gone to the CPS over the 13 month period to which I have referred. I am satisfied that the above paragraphs give an accurate summary of the chronology of the judicial review proceedings and the attempts by RA to obtain his costs, following the charging decision being made in accordance with the DPP’s undertaking.[20]The application before me seeks the following: 1. An order to set aside/revoke the Goudie Order for two reasons. Firstly, the DPP was unaware that it had been ordered to serve submissions in the summer of 2016, and it is said that there is merit in the submission that the DPP should not pay any costs and RA should in fact be ordered to pay the DPP’s costs. 2. An order to set aside/revoke paragraph 1 of the Rose Order that refused the DPP recovery of her costs.[21]There are three grounds advanced by the DPP to justify this application. They are: 1. The Collins Order, when properly construed against the transcript of the hearing, “only envisaged the Defendant [ie the DPP] recovering costs and not the Claimant recovering any costs”. 2. The judicial review had no causative effect on the charging decision being made. Effectively, it is said, the order for costs requires the CPS to pay £20,000 “for doing no more than performing its statutory obligations when it was meant to”. 3. The undertaking given by the DPP was not to compromise the claim but “was simply part of its function as a minister of justice.” It was not an admission that the claim had merit. It is said that had Dinah Rose QC considered the content of the witness statement from Curt Wise served by the DPP in the proceedings before Collins J then this would have been apparent to her.[22]Both parties before me argued the matter from the basis of 2015 onwards, namely what each party submitted had or had not occurred before Collins J, to demonstrate either that the Goudie Order and/or the Rose Order were wrong on the merits of the underlying judicial review application in 2015 (or from RA’s point of view, right). In my judgment, this is not the correct approach to this application. There is no dispute about what occurred before Collins J. The outcome of that hearing was recorded in an Order by him, the wording of which was agreed by counsel both for the DPP and for RA at the time. The Collins Order did not award either party its costs, nor did it disallow the costs of either party. Even when construed with the transcript – if that is a valid approach to an order of the High Court, which I seriously doubt – it is clear that Collins J left the matter of costs open and remaining to be decided. There are then a further two orders of the High Court in existence – the fact that they were made by Deputy High Court Judges and not High Court Judges does not matter –that fully dispose of all the issues before the parties concerning costs. Unless or until they are set aside and/or revoked, then there is no reason to consider the merits of what did, or did not, happen in 2015 and which party emerged in a better, worse or the same position in 2015 than might have been the case absent the judicial review proceedings.[23]When considering whether to set aside or revoke an existing order of the High Court, the fact that I may prefer one view or the other concerning the merits in 2015 is of no consequence, unless the application in respect of the Goudie Order (and if successful, perhaps then also the Rose Order) is successful. Accordingly therefore, although it comes at the end of the chronology of the judicial review proceedings, the correct place to start is the Goudie Order.[24]Before I turn to the principles applicable to setting aside or varying orders that have already been made, the following points should be borne very firmly in mind. Mr Lewis is a Specialist Prosecutor in the Specialist Fraud Division of the CPS based at Southwark Bridge in London. He was the reviewing lawyer in the investigation of the conspiracy, and this was a complex and difficult criminal investigation. London is a major financial centre, and there is no doubt that Mr Lewis will have a very high workload on cases of this type generally. His expertise will be criminal law. Judicial review proceedings in the Administrative Court are public law. It is incumbent upon those who conduct litigation in the different divisions of the High Court to make themselves aware of the procedure. This is expected of litigants in person, and is no less expected of those professionally represented whether internally (as Government Departments often are) or by external advisers. The irony in this case is that the litigant in person, RA, broadly followed exactly what was expected, and progressed his application for costs properly; those acting for the DPP did not. It should also be noted that the procedures in question are not arcane and overly-technical requirements of nineteenth century Chancery law. Simply responding either to applications or even merely letters does not impose an onerous burden upon anyone, legally qualified or not.[25]The court does not require a higher standard of those acting for the DPP than other litigants, even though there is less excuse for a department staffed by lawyers in failing to follow basic procedures, such as answering communications from the court itself. However, there is an additional feature here that should be borne in mind, and that is that the ACO expressly drew the attention of those in the relevant department of the CPS to the outstanding matter of costs in the letter of 18 January 2016 referred to in paragraph 11 above. That letter from the ACO even provided with it relevant attachments, both the Administrative Court’s guidance (this was prior to the publication of the Administrative Court Judicial Review Guide 2016 later that year) and part of the Court of Appeal’s judgment in M v Croydon [2012] EWCA Civ 595. The guidance is written in clearly understood language and nobody reading it could have been in any doubt about the way the matter was to proceed. The following points were made crystal clear to both parties by the ACO: 1. The onus lay upon the parties to reach agreement on costs wherever possible. 2. If agreement on costs was not possible, the parties could lodge a consent order to withdraw and include a provision for costs submissions to be filed by them. 3. The matter of costs could be dealt with by a judge on the papers. 4. Efficiency and co-operation was required from the parties. I also wish to draw attention to the overriding objective itself in CPR Part 1.1, which is that cases are to be dealt with justly and at proportionate cost. The parties have an express duty under CPR Part 1.3 to help the court to further the overriding objective. CPR Part 1.4(2)(a) requires the court to encourage the parties to co-operate with one another, and in the notes to Vol.1 of the White Book r1.4.4 this is described as “a pointed illustration of the duty of the parties to help the court further the overriding objective”. Under CPR Part 44.2.4(a), the conduct of the parties is one of the matters to which the court will have express regard when considering costs.[26]It can hardly be said either to be co-operative, or efficient, simply to ignore communications from the other party, RA, and also from the ACO. This is however what the CPS did in this case. Without labouring the point, there can simply be no excuse for the relevant department in the CPS not engaging with the matter of outstanding costs at all, and not engaging with the correspondence. The same point, yet with even more force, can be made for the failure to respond when RA properly served upon the CPS his application for costs of 4 July 2016. Mr Lewis says in his witness statement that he did not receive a copy of the Rose Order. There is nothing in this point in the DPP’s favour at all. Firstly, that Order is expressly referred to in the application by RA for his costs. This was sent to the ACO by e mail on 1 July 2016 and received in hard copy by the ACO on 5 July 2016. Mr Lewis, quite rightly, accepts in his witness statement that he received this application on 4 July 2016. He says that he was unaware of the need to respond to that application and assumed that directions would be issued by the court. This assumption was entirely misplaced, and I can see no sensible basis for making such an assumption. Even if the Rose Order itself had not made its way to Mr Lewis, there is no reason to suppose that the Registry did not serve that Order upon the CPS, but even if there were, the CPS knew about the Order. Given that Mr Lewis knew it existed months before the Goudie Order was made, it is not necessary to consider this point further, but it is far more likely that the Rose Order was mislaid or misdirected within the CPS itself than that the Administrative Court Registry simply failed to serve it upon one of the parties.[27]The principles that apply to this application are as follows. The first matter that must be decided is which of the two orders should be considered first. That is agreed by the parties, and sensibly the first place to start is the Goudie Order. The second matter is whether the orders are interim or final orders. The parties agree that the Goudie Order is a final order. Neither of the parties cited any authority to the court. The White Book Vol.1 includes reference to all the relevant principles. The court has the power to deal with applications without having an oral hearing; CPR Part 23.8. The applicable parts of this rule that apply here are either CPR Part 23.8(b), where the parties agree (as certainly neither of them at the time argued that the matter should not be dealt with on the papers, and appear to have agreed) and/or CPR Part 23.8(c), where the court does not consider that a hearing would be appropriate. This is because Collins J indicated that he would consider the appropriate costs order after receiving written submissions, but also because this is what the Administrative Court guidance on costs stated would be done, which was communicated to the parties in the letter from the ACO of 18 January 2016. Because the DPP was served with a copy of RA’s application, she cannot rely upon CPR Part 23.10(1) to set aside the order. She therefore can only rely upon CPR Part 3.1(7).[28]CPR Part 3.1(7) states that the court has power to vary or revoke an order it has made. The notes to 3.1.12 state “the interests of justice, and of litigants generally, require that a final order remains such unless there are proper grounds for an appeal, or unless there are exceptional grounds for varying or revoking it without an appeal.” In Roult v North West Strategic Health Authority [2010] 1 WLR 487 the Court of Appeal stated that the grounds for invoking the power generally fell into one of two categories. Firstly, that the original order was made on the basis of erroneous information (whether accidentally or deliberately given); secondly, subsequent events, unforeseen at the time the order was made, have destroyed the basis on which it was made. However, proof of facts in either category does not automatically of itself mean that the order would be varied or revoked where it is a final order, and there are no grounds for a proper appeal. This is because CPR Part 3.1(7) does not give judges the power to hear appeals from themselves. Hughes LJ, with whom Smith and Carnwath LJJ, stated as follows:
"15. There is scant authority upon rule 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order. Neuberger J said as much in Customs and Excise Commissioners v Anchor Foods (No 2) The Times, 28 September 1999. So did Patten J in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen[2003] EWHC 1740 (Ch). His general approach was approved by this court, in the context of case management decisions, in Collier v Williams[2006] 1 WLR 1945. I agree that in its terms the rule is not expressly confined to procedural orders. Like Patten J in the Ager-Hanssen case [2003] EWHC 1740 (Ch) I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. I am however in no doubt that CPR 3.1(7) cannot bear the weight which Mr Grime's argument seeks to place upon it. If it could, it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue—an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to reopen any decision. In particular, it does not follow, I have no doubt, where the judge's order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist. "
[29]That case has more recently been considered, together with another concerning possession orders called Forcelux Ltd v Binnie [2009] EWCA Civ 854, in Hackney London Borough Council v Findlay [2011] EWCA Civ 8. Roultwas not cited in Forcelux, nor to the first instance judge in Hackney LBC v Findlay. In the Forcelux case, the Court of Appeal had held that, where the court made a possession order in the absence of the tenant, following forfeiture of a lease for non-payment of the ground rent, and the tenant subsequently applied to have that order set aside, the court had a wide discretion under CPR Part 3.1(2)(m) to set aside the possession order "if, in its discretion, it considers that the interests of justice demands it" ([52] per Warren J, giving the judgment of the court). The court considered that the rule dealing with applications to set aside judgments obtained at trial in the absence of a party contained in CPR Part 39.3 did not apply because the hearing at which a possession order is made is not a "trial" for the purposes of the relevant rules. In the Hackney LBC v Findlay case, the Court of Appeal was not concerned with a landlord and tenant in the private sector but a local authority and secure tenant. There are particular principles that apply in cases concerning possession orders, because (as Arden LJ made clear in [23]) there was a clear indication in section 85(2) of the Housing Act 1985 that Parliament contemplated that, save in unusual circumstances, the execution of a possession order should bring to an end the tenant's rights, including his right to apply for an order under that subsection. The subsection expressly limits the court's powers so that they are exercisable at, and thus only at, "any time before the execution of the [possession order]". However, in the same paragraph Arden LJ went on to state as follows, in a passage which I consider is of wide application and not limited to possession orders:
“Secondly, the finality of litigation has long been a principle of public policy. The possession order once made will form a proper basis for execution unless that is the tenant makes an application under s 85(2) in the period allowed by that provision. As a corollary of that principle, challenges to orders should be by way of appeals. In the interests of the proper administration of justice and the system of appeals, judges should not sit in judgment on their own orders. The decision of Roult reflects these policy considerations. Thirdly, CPR 39.3 makes it clear that, where a final order is made the defendant should have to produce a good explanation for not attending the hearing, that he acted promptly on learning of the order which he seeks to set aside, and that he should show that he has a real prospect of success in his defence. These requirements support the policy considerations to which I have referred.”
(emphasis added)[30]Here, there was no hearing, as the matter was dealt with on the papers. However, I consider that the same approach should be adopted to a situation such as this, namely dealing not with a failure by a party to attend a hearing, but a failure to put in any submissions in opposition to, or even in relation to, RA’s application for costs. The three requirements are therefore that the DPP should have to produce a good explanation for not participating in that process by lodging any submissions, that she acted promptly on learning of the order which is sought to be set aside, and that there are real prospect of success in defence.[31]There is no doubt that the CPS acted promptly when learning of the Goudie Order. The first of those points is however very firmly against the DPP. There is, in my judgment, simply no good explanation available for the failure by the DPP, through those at the CPS who were supposed to be acting on her behalf in the judicial review proceedings, to take any substantive or procedural steps in the action whatsoever between September 2015 and October 2016 until the Goudie Order was made. This inaction was contrary to the duty imposed upon the DPP as a party to the litigation, to be co-operative and to help the court to further the overriding objective. It also ignored the express communications to the relevant department of the CPS by the ACO itself, which directed the CPS to the relevant approach and principles and even provided copied extracts of the Administrative Court guidance and relevant authority. There is no excuse for failing to lodge submissions opposing RA’s application for his costs (or even making a belated application for the DPP’s costs).[32]Even if, therefore, the DPP could show that she had good grounds for opposing the costs application by RA, had the CPS troubled to do so on her behalf at the time, there is in my judgment no good reason for invoking the power under CPR 3.1(7) to vary or revoke the Goudie Order. Litigation requires finality, and the finality of litigation has long been a principle of public policy. This application therefore fails in any event and the Goudie Order will not be revoked or varied in the way sought by the DPP. I am aware that the effect of this, as so clearly put by Mr Little in his persuasive submissions, is that the DPP will have to pay a sizeable sum of £20,000 in costs to a person, RA, suspected of a criminal offence, and for doing no more than exercising her statutory function.[33]There can be no doubt that as a result of the Goudie Order the DPP has to pay a sizeable sum in costs to RA. I accept that this is an unusual outcome. However, it must be remembered that whatever good reasons there are, or may have been, as to why that order should not have been made, the CPS took a wholly inactive stance to RA’s application for many months for no good reason whatsoever. Also, although Mr Lewis states in his witness statement that he would have approached the matter of reaching a charging decision in exactly the same way, and against the same timescale, regardless of the judicial review proceedings and regardless of DPP’s undertaking to the court in August 2015, I cannot accept that the giving of an undertaking by the DPP to a High Court Judge sitting in the Administrative Court can or should have been wholly ignored on the issue of costs.[34]However, in case I am wrong about there being a lack of justification to vary or revoke the Goudie Order, and the absence of the exceptional circumstances required to do so, I will briefly address the approach to varying or revoking the Rose Order, were I to have arrived at that stage in the application. The parties agree that this is an interim order. In contradistinction to final orders, which determine issues between parties giving rise to a cause of action estoppel between them, interim orders do not finally decide anything as of right between the parties. It is, in my judgment, arguable that the Rose Order is a final order so far as the costs of the DPP are concerned, as paragraph 1 states “there shall be no order for payment of the Defendant’s costs”. However, given the point is agreed, I shall approach the matter as though it is an interim order.[35]In Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen[2003] EWHC 1740 (Ch), Patten J stated, without giving an exhaustive definition of the circumstances under which the power in CPR Part 3.1(7) would be exercised, that for the High Court to revisit one of its earlier orders the applicant must either show some material change in circumstances, or that the judge who made the first order was misled, whether innocently or otherwise, concerning the correct factual position before them. In Woodhouse v Consignia plc [2002] EWCA Civ 275 it was said that there was a public interest in discouraging a party who had made an unsuccessful interlocutory application from making a subsequent application for the same relief, based upon material which was not but could have been deployed in support of the first application.[36]I do not consider either that there was a material change in circumstances, or that the court in the person of Dinah Rose QC sitting as a Deputy High Court Judge was misled. She knew the subject matter of the judicial review proceedings, and also knew what had happened before Collins J, and she had a copy of the Collins Order. Mr Little very frankly accepted that her order, on those documents, was perfectly logical and entirely understandable. He did maintain that the transcript of the ruling by Collins J was however necessary to “put the Order into context” but I reject that submission. The wording of the Collins Order was agreed by counsel for both parties, and in my judgment (even if this observation were necessary) correctly reflected the substance of what the court ordered. The Order recited the undertaking by the DPP; it was correct to do so, and that had formed part of the decision-making by Collins J in refusing RA permission. He stated that RA had not been wholly unsuccessful, stating to RA’s counsel “You have achieved something”. The Collins Order did not decide costs of either party. It is correct that the DPP’s counsel sought her costs, but that was not decided by Collins J and he expressly permitted RA to put in “counter-submissions”. He said “I will consider what order is appropriate then”.[37]Turning therefore to the three grounds relied upon by the DPP which I have set out at paragraph 21 of this judgment above, my findings in respect of each are as follows. 1. The DPP argues that the Collins Order, when properly construed against the transcript of the hearing, “only envisaged the Defendant [ie the DPP] recovering costs and not the Claimant recovering any costs”. This is not correct. Firstly, there is no basis for “construing the order against the transcript”. The Order does not decide that RA is not entitled to any costs. Mr Little accepted at the hearing before me that the Order did not make any costs orders. Even if the Order were to be construed “against the transcript” Collins J makes it clear that he was not deciding costs. I do not accept that this is a valid exercise in any event. 2. The DPP argues that the judicial review had no causative effect on the charging decision being made. This is a merits based argument on what the correct costs order should have been. It does not justify variation or revocation of the Goudie Order. It is an argument that could, and should, have been advanced before Dinah Rose QC. Even if it had been, she was not bound to accept it. Mr Lewis’ evidence, taken at its most extreme, seems to be that the giving of an undertaking by the DPP made no difference to the approach adopted by his department on reaching a charging decision. That simply cannot be right. The DPP is the most senior public prosecutor in England and Wales, and ranks behind only the Attorney General and the Solicitor General. I cannot accept that an undertaking by her to a High Court Judge had no effect at all on the operation of the relevant department. 3. The DPP argues that the undertaking given by her was not to compromise the claim but “was simply part of its function as a minister of justice.” It was not an admission that the claim had merit. Again, this a merits based argument on what the correct costs order should have been. Alone, it does not justify variation or revocation of the Goudie Order. It is an argument that could, and should, have been advanced before Dinah Rose QC. Even if it had been, she was not bound to accept it.[38]In all the circumstances, even if I were to have reached the position of considering whether to vary or revoke the Rose Order, I would not do so. There are no grounds to justify doing so, exceptional or otherwise.[39]It is highly regrettable that the DPP finds herself in a position where a sizeable costs order has been against her in these circumstances. However, the fact that these costs will be borne by the public purse, which has enough claims on it in any event, is not in my judgment a good reason for exercising the power under CPR Part 3.1(7) where proper grounds for doing so do not exist. This case has had a very unusual history, as Singh J noted, and this judgment should not be taken as any form of encouragement to other litigants to issue judicial review proceedings against the DPP in the expectation (or even hope) that costs orders such as these will follow as a matter of routine. Its particular and peculiar features will hopefully not be repeated, but in all the circumstances this application fails.