Drain, R (On the Application Of) v Birmingham Crown Court

This is the judgment of the court in relation to costs following our earlier judgment on the substantive issues; the neutral citation of the earlier judgment is [2018] EWHC 1255 (Admin).

Birmingham Trading Standards (of Birmingham City Council) (“BCC”) has applied for an order that Mr Drain pay its costs of, and incidental to, these proceedings. We agree that we should make that order on the basis that Mr Drain has failed in his challenge to the forfeiture order of 18 May 2016 and BCC has succeeded in its response to that challenge.

BCC has provided a brief schedule setting out a summary of its costs. Those costs have two elements. The first relates to the fees of solicitors and counsel. The second relates to the costs of storing the items which were the subject of the forfeiture order. BCC has stated that the costs of storage relate to a period from 16 June 2016 (28 days after the forfeiture order of 18 May 2016) and continuing until the hearing of the substantive application for judicial review in this case on 3 May 2018. BCC had borne the costs of storage of the items at all times up to 16 June 2016. In fact, BCC has claimed for storage for 23 months. As we handed down our substantive judgment in this case on 25 May 2018, 23 months had elapsed between 16 June 2016 and the hand down of judgment.

BCC has explained that the solicitors from Mr Drain specifically requested, on 31 May 2016, that BCC should not dispose of the items until any potential appeal or judicial review of the forfeiture order had been dealt with. BCC complied with that request. The solicitors for Mr Drain repeated that request on 10 April 2017, following Mr Drain’s abandonment of an appeal to the Court of Appeal (Criminal Division) and again BCC complied with that request.

Pursuant to section 51(1) of the Senior Courts Act 1981, the court has power to make an order in relation to “the costs of and incidental to all proceedings”. BCC has submitted that the costs of storage were costs which were “incidental to” these proceedings. We did not understand counsel for Mr Drain to disagree with this submission. In any case, we accept that the court has jurisdiction to award to BCC its costs of storage on the ground that those costs were incidental to these proceedings. As it happens, a similar point was considered by the Divisional Court (Treacy LJ and Males J) on 9 May 2018 in Henderson v Commissioner of Police for the Metropolis [2018] EWHC 1092 (Admin) in relation to the costs of kennelling a dangerous dog, pending a challenge to an order for the destruction of the dog. In that case, the court held that the costs of kennelling were incidental to the proceedings. Similarly, in the present case, the costs of storage fall within the ordinary meaning of the words which refer to costs incidental to the proceedings.

Counsel for Mr Drain has submitted that we should not award to BCC the storage costs because it is a public authority and not an individual or a private company. We see no basis for that submission. There is no reason not to award BCC the costs of storing the items at the specific request of Mr Drain.

We are asked to carry out a summary assessment of BCC’s costs. We will assess the costs on the standard basis. The storage costs claimed are £5,750 and the costs for solicitors and counsel are £5,591.30, making a total of £11,341.30. The figure of £5,750 for storage costs is 23 months at £250 per month. Counsel for Mr Drain submitted that no detail had been provided, which we do not accept, but in any event he did not identify any alternative figure for storage costs. We will award the sum of £5,750 claimed for storage costs. We consider that a reasonable and proportionate sum for the storage costs and the other costs, taken together, is £11,000 and we assess the costs accordingly.

Counsel for Mr Drain asked us to postpone the making of this decision as to costs until after the outcome of an appeal by Mr Drain against our substantive decision. We see no reason to postpone the making of this decision. It is appropriate for this court to deal at this stage with all of the matters it has to decide.