Grimes v Crown Prosecution Service: CA 27 Nov 2003

The CPS sought to enforce a confiscation order made by the Crown Court in proceedings against the claimant’s husband. She successfully established that she had been beneficially entitled to a one-half interest in the matrimonial home, and was therefore entitled to half of the proceeds of its sale. She now appealed against refusal of her costs.
Held: CPR Part 44 applied to the litigation. The appeal succeeded.
Brooke LJ said: ‘Mr Pawlak urges that the CPS is not insulated from the general rule about costs orders just because it is a public body, and that the judge’s approach was wholly wrong. He drew our attention to some well-known cases, either when judicial review proceedings are brought in the public interest and there is no order as to costs, or when the police have to act for parties to a licensing appeal, when it may very well not be proper for them to be ordered to pay costs when they are performing a public function of providing the court with information. He said that their cases raised different issues.
In my judgment there is great force in Mr Pawlak’s submission that the judge set about the exercise of his discretion in the wrong way. This is the second occasion within two weeks when a division of this court of which I have been a member has been concerned with an appeal in which complaint is made about an order for costs made by the judge when it was not apparent that the judge had set about his duties in the structured way set out in CPR 44.3. Of course, there is no need for judges to refer to that rule explicitly, provided that they follow its philosophy. Its philosophy required Wilson J to start with the proposition that the general rule was that the CPS, as the unsuccessful party, should have to pay the costs of the successful party. It would then follow from that that the judge should consider carefully whether there were any of the specific matters listed in CPR 44.3(4) which would take this case out of the ordinary rule and then consider all the circumstances.
It appears to me that the judge embarked on his task from the wrong end, focusing first on the position of the CPS, as a public body, and then seeking to find reasons why Mrs Grimes should displace a general rule that the public body should not have to pay the costs of a successful party in circumstances like these.
In these circumstances, it appears to be one of those cases in which, the judge having set about his task from the wrong end, this court has to exercise its discretion afresh on the materials before it.
21. One starts with the general rule. Mrs Grimes had to come to court. There had been no offer made to her to which the court’s attention was drawn which made it unnecessary for her to come to court. When she came to court what she had said on paper in her affidavit was believed by the judge. I entirely understand the contention that it would have been unreasonable for the CPS to concede the totality of her claim in advance: they had their public duties to perform in relation to the need to enforce the confiscation order, and there were oddities about Mrs Grimes’ statement, particularly in relation to the reasons why the property was put in her husband’s sole name. But that does not, in my judgment, mean that the CPS were entitled to behave, as litigants far too often behaved before the CPR came in, by simply standing back and saying, ‘We will make no offer at all for the court to consider when it decides what order as to costs is a reasonable one to make. We will simply see you in court.”
Sedley LJ said: ‘The reason why the judge did not approach the case in this way, as it seems to me, is that he regarded the CPS as having a special litigation position or status. As my Lord has made clear, it does not. What it will have in many cases is an argument on the reasonableness of its stance which derives from the nature of its legal functions and the purpose of confiscation orders. For the rest, and I think contrary to the approach taken by the judge, this proceeding was no different from an interpleader in a judgment creditor’s action. The Crown when it comes before the courts of this country does so as a litigant like any other.
. . I do not therefore think it necessary for the CPS to have laid itself open to criticism if it is to be made liable for a successful opponent’s costs in a case like the present; and for my part I am willing to accept Miss Barber’s doughty defence of the CPS’s conduct of the case. But that leaves a simple situation in which two parties, each behaving reasonably, have met in court, where one has lost and ought therefore to expect, other things being equal, to pay the other’s costs.’


Brooke LJ, Sedley LJ


[2003] EWCA Civ 1814




England and Wales

Cited by:

CitedPerinpanathan, Regina (on The Application of) v City of Westminster Magistrates Court and Another CA 4-Feb-2010
The appellant’s daughter had been stopped entering the country with andpound;150,000 in cash. The police sought an order for its forfeiture, suspecting a link with terrorism. The magistrates found no evidence of such, and declined to make the order, . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Costs

Updated: 10 June 2022; Ref: scu.193650