The recent judicial review case of Parker, R (On the Application Of) v Bashir & Anor  EWHC 358 (Admin) concerned an EPA prosecution case previously heard at the Magistrates Court at Teesside. The review concerned the decision on costs made by the District Judge.
The Claimant was a tenant at 7 Peaton Street. This property shared a boundary wall with 9 Peaton Street. Owing to flowers growing on the side of 9 Peaton Street and a lack of proper maintenance of the wall, the wall partially collapsed. This injured the Claimant’s hand. Originally the Claimant brought proceedings against, his landlord and the director of his landlord, these claims were subsequently discontinued. The Claimant continued his claim against Mr and Mrs Bashir, the owners of 9 Peaton Street and the freehold owner of 7 Peaton Street.
All three admitted liability, a remedial abatement order agreed and the freehold owner agreed to pay £4500 in costs. The costs against Mr and Mrs Bashir were to be assessed if not agreed.
At the hearing, Mr Bashir informed the District Judge that he could not afford to pay anything towards costs as he was in debt. The District Judge indicated that he would make no order as to costs in respect of Mr and Mrs Bashir. A schedule of costs was then provided and considered, following which the District Judge awarded £100 in costs. The District Judge then asked Mr Bashir a series of questions about his finances and if he owned his home. Mr Bashir stated that he owned multiple properties but they were being repossessed, no statement of means was filled out and no questions were asked of Mrs Bashir. The District Judge ultimately awarded costs of £100.
The Judge quashed the order for costs, finding that the District Judge “clearly fell into error in his approach” as rather than following the questions embedded in the statutory provision he considered costs through the means of Mr and Mrs Bashir. The Judge remitted the question of costs back to the Magistrates Court before a differently constituted bench.
The relevant part of section 82 (12) Environmental Protection Act 1990 provides; Where on the hearing of proceedings for an order under subsection (2) above it is proved […] shall order the defendant… (or defendants … in such proportions as appears fair and reasonable) to pay to the person bringing the proceedings such amount as the court … considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.
The High Court held that in order to discharge the statutory duty the Judge had to answer three questions that are inherent in the statutory provision. Firstly, what “expenses” were “properly incurred” in bringing the proceedings. Secondly, what amount is “reasonably sufficient to compensate”. Thirdly, if there is more than one defendant what is a “fair and reasonable proportion”.
There are three key takeaways from the case. The first takeaway is that it is always important to consider in its entirety the statutory provisions that underpin a case. If this had been done, countless legal and client resources could have been saved. Not that there was much the Claimant could have done when the fault lies with the Judge.
The second takeaway is that when landlords are subject to EPA claims, it is worth considering if the landlord is separate from the freehold owner. If so, there is a possibility that the obligation will ultimately fall on the freehold owner rather than the landlord and this can act as a useful means of shifting responsibility.
The third takeaway relates more generally to issues of costs. Costs should not be considered through the prism of what the losing party can afford to pay, it is what is reasonable to compensate the winning party. Where a Judge seeks to award costs on the basis of affordability this can and should be pushed back against.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at May 2022.