COSTS: NOT EVERY DEFENDANT NEEDED REPRESENTATION ON APPEAL

There are some important observations about costs made by Mrs Justice Carr DBE in RSPCA -v- McCormick & others [2016] EWHC 928 (Admin).

THE CASE

The RSPCA brought an appeal by way of case stated as to the meaning of “animal fighting” within s.8 of the Animal Welfare Act 2006. That appeal was unsuccessful, however the Court did give guidance as to the relevant law. The court then considered the question of costs. The RSPCA sought costs from central funds, even though it had not been successful. Each of the five defendants had separate representation.

THE JUDGMENT ON COSTS

“Consequential matters : costs
  1. The RSPCA invites the Court to make order for payment of its costs of this appeal out of central funds pursuant to section 17(1)(b) of the Prosecution of Offences Act 1985 on the basis that the purpose of the appeal was to obtain the Court’s guidance on an important point of interpretation. It has submitted a statement of costs in the sum of approximately £19,000. I have no doubt that this appeal was brought in good faith to seek clarity on the points arising. But the appeal has been dismissed. It seems to me inappropriate that all or most of the RSPCA’s costs of this appeal should be borne by the general taxpayer. However, in recognition of the fact that the RSPCA has achieved some clarification and guidance on points of general public importance over and above the ruling below, I would order that the sum of £5,000 be paid out of central funds towards the RSPCA’s costs of appeal. That is a just and reasonable sum in all the circumstances.
  2. The Respondents, who apparently each benefit from separate legal aid certificates, seek orders for legal aid taxation. Despite the submissions of all five legal representatives for the Respondents, I cannot identify any material conflict between them, or any reason why there was at any time a reasonable need for separate representation. This appeal raised two relatively short points of law on which, as the Respondents’ skeleton arguments demonstrate, the Respondents took essentially the same position. In this jurisdiction there could never have been any examination of the facts of the case, or the relative merits or de-merits of the individual cases against the individual Respondents.
  3. Nevertheless, there appear to have been communications with the Administrative Court Office where it was accepted that separate representation for at least one of the Respondents was appropriate. In the circumstances, where there was a degree of confusion amongst the Respondents, I am prepared to order legal aid taxation of all Respondents’ costs without more. However, I would emphasise that the position is unsatisfactory. Even though time was short, the Respondents should at least have communicated with the RSPCA to flush out the extent to which any factual issues that could give rise to any conflict of interest might arise. Such enquiry would have revealed that they would not, and that no separate representation was necessary. The time and expense of such representation would have been spared. This was always only an appeal on points of law by reference to assumed facts. I would certainly not have made a separate costs order in favour of each Respondent on an inter partes basis.”

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