Bernard v Dudley Metropolitan Borough Council

J U D G M E N T

1. MR JUSTICE HENRIQUES: In May 2002 Dudley Metropolitan Borough Council laid informations and issued summonses against Mr Dilisser Roy Bernard alleging offences under the Health and Safety at Work Act 1974.

2. Between 8th and 24th of August 2002 there was correspondence between Mr Bernard's solicitors and the prosecuting authority as to the adequacy of the informations. It is plain from that correspondence that Mr Bernard's solicitors sought particulars of the offences. On 3rd September 2002 those solicitors applied for an order that further particulars be provided. The application was refused. On 24th September 2002, at a further hearing before the Dudley Magistrates' Court, the solicitors acting for Mr Bernard again applied for further particulars, and they were again refused. The proceedings were adjourned to allow this claim for judicial review.

3. I have read the skeleton argument prepared for the hearing of 24th September 2002. Express reference is made in that argument to the case of R v Friskies Pet Care UK Ltd [2002] 2 Cr.App.R.(S.), page 401. That skeleton argument states:

"The use of Friskies' schedules is common in cases brought by the HSE adopting the practice advised by the Court of Appeal. No such document has been provided in this case and the Defendant is, accordingly, ignorant of the way the case is to be made. The service of a Case Summary and information of any aggravating features relied upon is essential material for the assistance of the Court and the Defendant at a mode of trial hearing."

4. Nothing could have been plainer to the prosecuting authority. For reasons which I am unable to comprehend, the Magistrates' Court declined to order those particulars. The matter came before this court on 4th December 2002 when Lightman J ordered the provision of a prosecution statement by 20th December, failing which permission would be granted. I am told that the order was made of his own motion, but without any argument being heard one way or the other, although, of course, the judge would have read the papers. The fact that the judge made the order of his own motion is, of course, a very plain indication of the way in which he would have ruled, had the matter required adjudication.

5. On 20th December 2002 the prosecution statement was provided. On 15th January 2003 Lightman J ordered that the application for permission be heard at an early date. By letter dated 21st January to the Administrative Court office the claimant indicated that the provision of the schedule rendered the further pursuit of the judicial review proceedings academic. The claimant, however, indicated that he sought his costs, and wrote accordingly to the defendant in these proceedings, the prosecuting authority.

6. Thereafter the prosecuting authority has declined to pay the costs of the judicial review proceedings. The only issue which arises today is the matter of those costs. It is clear from Scott Baker J's, as he then was, guideline judgment in Boxall v Waltham Forest Borough Council [2000] AER D, page 2445, that this court has power to make a costs order when the substantive proceedings have been resolved without a trial, but the parties have not agreed about costs. The overriding objective is to do justice between the parties without incurring unnecessary court time, and consequently additional costs. At each end of the spectrum it will be obvious which side would have won, had the substantive issues been fought to a conclusion. This, in my judgment, is just such a case. The defendants, that is the prosecuting authority, should at the very commencement of the criminal proceedings have provided the Friskies schedule. The judgment of the former Recorder of Leeds, the late judge Brian Walsh QC in the Court of Appeal Criminal Division, makes that clear. At [2000] 2 Cr.App.R.(S.), page 403, he says this:

"This case illustrates that problem very well and we recommend, that in this type of case, when the Health and Safety Executive commence proceedings, it should list in writing for the assistance of the court not merely the facts of the case, but the aggravating features, as set out in the Howe case, which it says exist in the particular case."

Far from complying with that recommendation, the prosecuting authority steadfastly refused to provide particulars. They contended, and indeed, even to this day, continue to contend, that it was sufficient to serve the informations together with the prosecution statements.

7. With a view to testing the accuracy of that assertion, I have examined the first of the several offences only with Mr Green, who appears on behalf of the prosecuting authority. In the particulars relating to the first offence, it is stated that it was incumbent on the company to ensure that the residents were not exposed to risks to their safety arising from the building works. This could have been achieved by (1) removing some or all of the residents, in particular Mr Jones, from the home while the building works took place; (2) providing sufficient staff to monitor residents in the home, and; (3) putting in place an effective barrier preventing access to work areas. On 15th December 2002 none these measures were in place.

8. I invited Mr Green to direct me to the appropriate parts of the prosecution statements, wherein I could ascertain where these particular allegations could be found. I was referred to the middle of the second page of Mr Lucas' statement, which reads:

"Whilst on site I was concerned to note that the door at that prohibited access to the building work had been opened overnight allowing free movement within this area."

That, it is said by Mr Green, is the evidence relied upon to justify the third particular: namely, putting in place an effective barrier preventing access to work areas.

9. I was then asked upon which part of the prosecution papers the Crown relied in order to substantiate the allegation that insufficient staff had been provided to monitor residents in the home. I was then directed to a different tab in the bundle, to page 15 of tab 10, which is an unsigned letter to a Mrs McDonald. It was not only unsigned, but there was nothing in the letter to indicate who the author was. In that letter appear these words:

"Also I believe that we need extra staff to assist with the residents whilst work carries out so we can assure their well being. Not reduce staff ratio as memoed by yourself."

10. There is nothing to indicate in that letter that the contents of the letter were ever brought to the attention of Mr Bernard. I am told that the prosecution would also rely upon some staff meeting which took place, at which Mr Bernard was present. No reference is made in the papers to that particular incident.

11. The task of finding the two passages to which I have been referred involved a paper chase. The whole purpose of the prosecuting authority being required to furnish particulars is to avoid just such a paper chase. When informations are laid and proceedings commenced, it is manifest that there is a clear obligation upon a prosecuting authority to make it plain just what the allegation is, and upon what evidence they seek to rely to substantiate that allegation. Solicitors acting on behalf of the defendant did exactly what would be expected of conscientious solicitors in asking for particulars. I for my part found it quite impossible, with the particulars of offences and the statements only, to know exactly how the prosecution put their case. It is now clear by reason of particulars that were furnished as a result of the order of Lightman J, and furnished for the first time in December of last year. Those particulars should have been furnished months earlier.

12. The prosecuting authority have relied throughout on an authority of Warburton-Pitt [1991], 92 Cr.App.R, page 136. That was a most unfortunate case in which the prosecution failed to particularise the facts upon which it relied in support of its allegations of recklessness and negligence against a pilot. The defence at the outset of the case did not know what case it had to answer. The fact that particulars were not given did not invalidate the proceedings, indeed the defence had failed to apply for them before trial, or to make a proper application to the trial judge. That trial took an unfortunate course. An allegation of negligence was made during the trial which was not referred to in the Crown's opening: namely, that the pilot had been negligent in not aborting the take-off. The trial judge asserted that things like that tend to happen in criminal trials. The Court of Appeal did not share that view. The conviction was quashed, Watkins LJ saying that these sort of things ought not to happen in criminal cases. That difficulty would have, of course, been wholly avoided had the Crown given clear particulars of their case and stuck to those particulars throughout the trial.

13. In the nine years between that case and the Friskies case matters have moved on. It is not sufficient for a prosecuting authority in a Health and Safety at Work Act case merely to serve the summonses and the statements. It is more than difficult to find out in this particular case exactly what the prosecution case is by mere reference to the statements. I have no doubt at all that if the prosecution had continued in the present case to decline to furnish full particulars of their case, that ultimately they would have lost the judicial review proceedings and would have been ordered to pay the costs thereof.

14. Having furnished the Friskies schedule, the prosecuting authority has continued to refuse to pay the costs of the judicial review proceedings. Since I am satisfied that the defendant's unreasonable failure to provide particulars necessitated this application, and that the prosecuting authority would have lost, I have no difficulty in concluding that they should pay the costs of the judicial review proceedings and of today.

15. I go on to consider whether those costs should be on the standard basis or on the indemnity basis. I have had full regard to part 44.4.2 in reaching my decision. I am satisfied that the prosecuting authority have acted unreasonably throughout, not least in refusing to pay the costs of the judicial review proceedings. Their conduct has been unreasonable to a high degree. Not merely wrong or misguided in thought, but uncooperative and heedless of clear authority presented to it. The belated provision of a Friskies schedule pursuant to the order of Lightman J does not evade responsibility for what occurred before. I have no doubt that had Lightman J been asked to consider the question of costs, they would have fallen on the prosecuting authority. Mr Bernard's criminal trial has been delayed quite needlessly. He has been put to the exasperating lengths of coming twice to the Administrative Court to obtain something which should have been his for the asking. The costs should have been paid by agreement so soon as they were demanded. Accordingly, I order that the costs of the judicial review proceedings and today's cost proceedings be paid on the indemnity basis. There will be a detailed assessment by a costs judge.