Ewing, R (on the application of) v Davis

MR JUSTICE MITTING: There has existed for many years a disagreement between householders to whose properties access is gained by Old Roar Road, St-Leonards-on-Sea and the owners of the land on which Old Roar Road runs. The road is owned by a company to which many adjoining landowners subscribe. It seems that the wish of most, if not all, of the shareholders is to limit residential development of plots served by the road. One non-shareholder, a Mr Davis, who disagrees, wishes to develop his garden by building two houses upon it for which it seems he has planning permission. He has for many years sought to persuade the shareholders to afford access to any new houses built in his garden or, if he cannot persuade them, to seek to have Old Roar Road declared to be some species of public highway over which vehicular access by members of the public, or at the very least by those gaining access to housing to be built on the back of his garden, can be exercised.

As unhappily is sometimes the case in these long running differences, tempers fray. Following one such incident, Mr Haywood was prosecuted for an alleged offence against Mr Davis. He was acquitted. In due course there was issued on 22nd June, four informations laid before the Hastings Magistrates' Court alleging that Mr Davis had committed criminal offences against Mr Haywood. Without dividing them up into their component parts, they in effect alleged two discrete sets of incidents. First, on 22nd December 2004, at 131 Old Roar Road, Mr Haywood's home, that Mr Davis used threatening, abusive or insulting words or behaviour towards him contrary to section 4(1)(a) or 5(1)(a) of the Public Order Act 1986 and, secondly, that, between 19th March 2005 and 1st April 2006, Mr Davis had pursued a course of conduct which amounted to harassment of Mr Haywood contrary to section 1(1) or section 2 of the Protection from Harassment Act 1997. Mr Davis, through counsel, submitted to the District Judge at Hastings Magistrates' Court, on 2nd and 3rd August, that the proceedings were an abuse of process or, alternatively, invalid. He declined to make any ruling on the abuse of process point and no question arises today about it. On 13th September 2006, he found that the prosecutor, not Mr Haywood but Terence Patrick Ewing:

The question for this court is whether his conclusion was right. It is necessary to say a little about Mr Ewing. He has no personal interest in the proceedings. He tells me, and I accept, that he knows Mr Haywood and has agreed with him to prosecute these matters, not on behalf of Mr Haywood but by himself. He is a well-known litigant in these courts and is the subject of an order under section 42 of the Supreme Court Act 1981 but only in respect of civil proceedings. These proceedings are criminal, not civil. Accordingly, he does not require the permission of a High Court judge to bring them.

The foundation for the District Judge's ruling is a statement in Stone's Justices' Manual in the 2006 edition at paragraph 1-7427. The rules governing the laying of informations are now contained in Rule 7.1 of the Criminal Procedure Rules 2005, which provides:

In an earlier passage in Stone, paragraph 1-380, the law is more succinctly stated. This matter, as far as I can tell, has appeared in editions of Stone for a number of years:

Mr Ewing submits that an analysis of the old and, with one exception, modern authorities demonstrates that someone in his position has the right to prosecute for an offence said to have been committed against a provision of a public general act. It is necessary therefore to examine the authorities that underlie the statements of principle in Stone.

The principles established by those authorities are not in any way fettered or qualified by modern statutes. The relevant modern provision is to be found in section 6(1) of the Prosecution of Offences Act 1985, which provides:

A modern statement of general principle is to be found in the speech of Lord Diplock in Gouriet v Union of Post Office Workers [1978] AC 435 at 497H to 49B:

In Victorian times it was treated as axiomatic that a member of the public had an unfettered right to prosecute save in respect of offences said to have been committed against certain local acts. The starting point is R v Hicks [1855] 19 JP 515, in which the court of the Queen's Bench considered the right of a private individual to prosecute for an offence under the Torquay Market Act 1852. That Act established a market in Torquay and gave to the market operator the right to set up a market and to prosecute and in respect of offences which it prosecuted to receive a sum not exceeding 40 shillings as a forfeit. The Torquay Market Act 1852 was a local act. That fact is significant, as is apparent from the words of Lord Campbell CJ in holding that only the operators of the market could bring the prosecution under section 31 of the Act:

Those statements of principle are, as I have observed, the foundation for the observations of the editors of Stone in paragraph 1-380 of the 2006 edition. The editors have correctly summarised the proposition to be extracted from Lord Campbell's observations for the simple reason that the offence in that case was a matter of "individual grievance". The court was not concerned with the circumstances of the offence or the facts upon which the prosecution was brought, but only with the statute which created the offence. The statute was a local act. It created an offence solely for the benefit of the market company. Accordingly, only the market company could prosecute.

The next authority cited in the notes to Rule 7.1 of the Criminal Procedure Rules 2005 is Cole v Coulton [1860] 24 JP 596. That prosecution too was brought under a local act, the King's Lynn Waterworks and Borough Improvement Act 1859. The offence alleged was that an innkeeper had knowingly suffered four common prostitutes to assemble at and continue in his house and premises contrary to that Act. The Clerk of the Paving Commissioners brought the prosecution. The issue arose as to whether or not he was entitled to do so. The actual issue in the case first raised was whether or not he had proper authority from the Commissioners. The court declined to answer that question. It decided it on the basis that he was entitled to prosecute, as a member of the public. Lord Cockburn CJ stated:

Again, it is clear from the observations of the Chief Justice that the court was concerned not with the circumstances in which the offence had been committed but with the nature of the offence charged. Hence the distinction expressly drawn between an offence which must be prosecuted for public prosecution and an "enactment" which is for the protection of individuals. The issue decided by the case was that the enactment was not just for the protection of individuals but was for public protection generally. Accordingly, the clerk to the commissioners, whether properly authorised or not, was entitled to lay an information.

The next case was Back v Homes [1887] 51 JP 693. The issue in the case was whether or not the Highway Act applied to London. It was held that it did. Almost in passing, the court was invited to deal with the right of a private prosecutor to prosecute for an offence of obstruction under that Act. In his submissions for the appellant, Mr A L Smith is reported to have said:

In Giebler v Manning [1906] 1 KB 709, the third of the cases cited in the note to Rule 7.1, the question was whether a private person could prosecute a butcher for exposing rotten meat for sale contrary to section 47(2) of the Public Health (London) Act 1891. Lord Alverstone CJ dealt with this shortly at page 714:

The fourth of the cases cited in the note is Lake v Smith [1911] 76 JP 71. The defendant was prosecuted for taking shingle from the port of Sidmouth. The proceedings were brought under sections 14 and 21 of the Harbours Act 1814 and pursuant to orders made by the President of the Board of Trade, to whom functions under that Act had been assigned. An issue arose as to whether the prosecutor, who was not specifically authorised by the President, could lay an information. Lord Alverstone CJ held that he could:

That too was an application of the principle which I have already stated. Until R (Gladstone plc) v Manchester City Magistrates' Court [2005] 1 WLR 1987, the question proposed by this case does not appear to have fallen for decision by a modern court but observations have frequently been made upon it and all are to the same effect. I now take but one example. I have already cited what Lord Diplock said in Gouriet. In Rubin v Director of Public Prosecutions [1989] 3 WLR 1088, Watkins LJ stated at page 1093H:

Questions have been considered as to the interactions of the functions of the Director under section 3 of the Prosecution of Offences Act and private prosecutions in, for example, R v Director of Public Prosecutions ex parte Duckenfield and R v Bow Street Metropolitan Stipendary Magistrates [1993] 2 WLR 621, but the premise upon which the arguments have been advanced has always been the right of an individual to prosecute for an offence contrary to a public general act. The issue in those cases was whether that right was circumscribed by the powers given to, and the actions of, the Director of Public Prosecutions.

The conclusion which I draw from this review of the authorities is that until R(Gladstone plc) v Manchester City Magistrates Court it was axiomatic that a member of the public had the right to prosecute for any offence said to have been committed against a provision of a public general act. Such an act necessarily was enacted for the public benefit. Accordingly, no question of enactment for the benefit of a limited group of individuals or a company could arise. There was no need for a private prosecutor to show anything more.

I turn therefore to Gladstone. The facts in Gladstone were straightforward. At an annual general meeting of the claimant company it was alleged that a shareholder had assaulted the chief executive. The company laid an information by solicitors alleging common assault under section 39 of the Criminal Justice Act 1988. The District Judge held that Gladstone plc had no right or authority to lay the information. He held that the only proper person to have brought the proceedings was the chief executive officer alleged to be the victim of the assault. The Divisional Court decided that the District Judge was wrong and remitted the case for hearing. Leveson J gave the first judgment. He stated at 1991H:

A significant qualification on those observations was contained in paragraph 15 of Leveson J's judgment at page 1993B:

It would not, however, be right for me to leave Leveson J's observations without observing that the modern formulation of the rule which he extracted from the passage in Stone is not in fact founded on the authorities cited for it. As I have demonstrated in my analysis of the Victorian authorities, there never was any requirement that a private prosecutor had to demonstrate that it was in the public interest that he should bring a prosecution for an offence against the provision of a public general act. Accordingly if Leveson J's words are taken, as the editors of Stone now appear to take them, as an invitation to District Judges and Magistrates to examine the circumstances of an alleged offence and the relation of the prosecutor to them, it is a tendency which should be resisted. It is not founded on authority. The public interest is established by the nature of the offence created by the statute not by the circumstances alleged or by the relation of the prosecutor to them.

Mr Potter, for Mr Davis, submits that in modern circumstances a dual test would apply to private prosecutions. He puts it thus:

As I have sought to demonstrate, there is no foundation in authority, beyond observations which do not bind me by Leveson J in Gladstone plc and the proposition is not soundly founded. If the right of private prosecution is to be taken away or subjected to limitation, it is for Parliament to enact and not for the courts by decision to achieve. There is in existence a statutory scheme which permits the state to interfere in private prosecutions which in the view of the Director of Public Prosecutions or the CPS are unmeritorious. Under section 6(2) of the Prosecution of Offences Act 1985, the Director and the CPS have the power to take over a private prosecution and under section 23 to discontinue it. If, in relation to criminal proceedings, Mr Ewing is thought to be vexatious, then the Attorney General can apply under section 42 of the Supreme Court Act 1981 for a criminal proceedings order. Subject to either of those steps being taken, it seems to me that these informations were properly laid and, subject to any further arguments which were not before me about abuse of process, properly resulted in the issue of summonses and should proceed to a hearing.

For those reasons, I allow this appeal by way of case stated and I remit the case to the District Judge for him to continue with the hearing.

MR EWING: My Lord, I am obliged for that. My Lord, I have prepared a summary assessment of costs, either against the respondent or from central funds, and I appreciate that your Lordship has a discretion as to whether the respondent pays the costs or they can be ordered from central funds.

MR JUSTICE MITTING: Have you shown your schedule --

MR EWING: I e-mailed them but I have a spare copy.

MR JUSTICE MITTING: When did you send them by e-mail?

MR EWING: Last week, I think, it was. The other side have sent me stuff by e-mail, so I thought that was perfectly sensible --

MR JUSTICE MITTING: Yes, I have not seen your schedule.

MR EWING: No, I did e-mail it to your colleague, Mr Cowlin, as well. I think the costs from central funds is covered by section 17(1)(a) and 3(a)(b) of the Prosecution of Offences Act, if your Lordship felt that that was the appropriate remedy, rather than the respondent and it does not matter to me who pays. Also, the other order is that I was ordered to pay costs below. I take it that, then allowing the appeal, that order for costs is also quashed.

MR JUSTICE MITTING: Yes, I quash the order for costs below.

MR EWING: Yes, I am obliged.

MR JUSTICE MITTING: Now, you say you have spent 50 hours' work on documents. That is a remarkably large number of hours to spend on what is essentially a question of law, albeit one which requires a bit of research into old authorities. Does that include all the work you have done on documents relating, for example, to the section 42 issue or the issue about the costs that I refused you permission to seek judicial review of on the papers?

MR EWING: No, that does not cover the judicial review. It covers obviously the section 42 issue in relation to this matter, which your Lordship said that I did not need leave for.

MR JUSTICE MITTING: First of all, I said you did not need leave and, secondly, it was a point that was not taken against you. How much of the 50 hours were spent on that?

MR EWING: Well, I would think that would cover three hours at the most, that part.

MR JUSTICE MITTING: So 47 hours had been spent on the rest of it?

MR EWING: Yes, what had to be done was that the appellant's notice had to be drafted and filed and taken to court to file, that I think back in December, setting down, I think as it used to be known, the case stated, which had to be done. Also there was, whether that could be included, there was the preliminary applications to apply to state the case to the Magistrates' Court and then there were representations, I believe. I recall there was a draft case going backwards and forwards.

MR JUSTICE MITTING: That is all covered though, is it not, by attendance on others, for which you claim six hours?

MR EWING: That may be right, my Lord, yes. Then there was the preparing of the appellant's bundles and I was directed that the matter was to be listed for a Divisional Court initially. I was asked by the Crown Office, or Administrative Court Office, to prepare two bundles, which was done, and in addition to that there those bundles of authorities, which I now know they have gone missing since, but nevertheless I have had to prepare and print them out, all of which takes considerable time. And of course there was the research, time spent on research and looking at the law, and of course there were some additional authorities which later came to light as well, and all of that takes considerable time, in printing out and stuff. That is basically it, and then attending court to lodge them. Then there was drafting, of course, the oral -- I suppose the skeleton argument, whatever you would like to call it, and then there was the chronology that had to be prepared and lists of persons and pre-reading and all the things that I was required to do by the letter that I was sent by the court to prepare for the hearings. So it is all inclusive and, of course, I have assessed it under £9.25 per hour, litigant in person's costs.

MR JUSTICE MITTING: Yes, you have the right rate.

MR EWING: Yes, I certainly have. I have used the standard court service form and that is how I put it. Of course, it is entirely a matter for your Lordship's discretion, assessing what you consider to be a reasonable sum and whether it is ordered by the respondent or from central funds.

THE MR JUSTICE MITTING: The expenses, a thousand pounds, what is that?

MR EWING: Where is that, my Lord?

MR JUSTICE MITTING: Over the page.

MR EWING: Brought forward, I think that would cover photocopying the legal research. I think that relates to the --

MR JUSTICE MITTING: Photocopying.

MR EWING: Yes, legal research, including case law. I am assessing £1000 for printing the documents and authorities. The other matters, I think over the first page, is attendance on various persons and so forth.

MR JUSTICE MITTING: A thousand pounds for photocopying strikes me as a very large sum.

MR EWING: Well, I call that legal research and printing out authorities and so forth and, my Lord, not only --

MR JUSTICE MITTING: And this expenses is not the £9.25 an hour you get for doing research?

MR EWING: I have put it all inclusively. I have the form -- the court service forms are not really helpful, they do not arrange it between things. They tend to assess things all in one little box.

MR JUSTICE MITTING: So what is the actual cost of photocopying?

MR EWING: I would assess the costs of photocopying -- I would say £200. That would cover authorities, bundles and the other discoveries. And two sets, of course were required, initially.

MR JUSTICE MITTING: Thank you, I understand your submissions. Mr Potter, do you have anything to say about the costs?

MR POTTER: My Lord, in relation to bundles, my bundle was helpfully photocopied by the court and sent to me. It certainly was not photocopied by Mr Ewing or served upon me by Mr Ewing. In relation to various other lists of authorities, not all of which he has sought to rely on today, I have received nothing more than a list and have had to get those myself. None of those were actually served on me by him. I note that his total comes to £1,665.75. My solicitors' bill of costs, had we been successful, net of VAT, was £1,428 and that was a hourly rate of £170.

MR JUSTICE MITTING: Can I see your bill?

MR POTTER: Indeed. (handed)

MR JUSTICE MITTING: Yes. Anything it to say about who should pay?

MR POTTER: I think I am bound to say central funds but that is it.

MR JUSTICE MITTING: These points were taken by Mr Davis, not by any public prosecutor.

MR POTTER: Indeed they were. That has to be accepted.

MR JUSTICE MITTING: Thank you.

MR EWING: If I can say, the bundle was served personally on Mr Davis at the time, I think acting for Mr Haywood, because his solicitors were not on record at that stage because the Magistrates' Court proceedings had finished, so they were served on Mr Davis. Whether or not he forwarded it to his solicitors we know not. But in relation to the authorities, as your Lordships have had electronic authorities sent to Mr Cowlin, also they were also e-mailed by way of attachments to the defendant's solicitors as well, so they -- as well as the lists, they did have copies of them, so that is not true to say they were not served along with all the other documentation and of course they have sent their skeleton argument by e-mail as well, so I thought I would adopt the same. But they were served by e-mail but I have not got copies of them here today but they were last week served.

MR POTTER: My Lord, just on that point, there was some service by e-mail. Of course, that does put the printing cost on Mr Ewing. In relation to skeleton arguments, my skeleton argument was served on him by e-mail but that is in relation to the fact that it was already late. It was also served by post as well.

MR JUSTICE MITTING: Mr Ewing claims some 72 hours of preparation and attendance costs at £9.25 per-hour. The hourly rate claimed is correct. The number of hours claimed in my view is excessive for preparation of the issues that actually needed to be argued in this case. I reduce the hours claimed accordingly to 50. If my arithmetic is right, then that produces a sum under this head of £462.50.

£100,000 is claimed as expenses. Mr Ewing has explained them to me, however, and only £200 is truly claimed as the only relevant expense: photocopying. In my view, even that is an over estimate. I allow £100 under that head. Accordingly, I assess Mr Ewing's bill at £562.50. I order that those costs be paid by the respondent, Mr Davis. He, through his counsel, took these points before the District Judge and it is not right that the public funds should bear the cost of dealing with them. Accordingly, I order Mr Davis to pay £562.50 costs.

Right. Any further applications? Thank you.