Wollenberg, R (On the Application Of) v The Crown Court at Southwark

Factual and Procedural Background

The Plaintiff initiated a private prosecution against four Defendants alleging fraudulent conspiracy and statutory fraud, with the Plaintiff as the victim. The Magistrates' Court issued summonses, and the case was sent to the Crown Court for a preliminary hearing. The Defendants applied for dismissal of the charges on grounds of insufficient evidence, and after a two-day hearing, Her Honour Judge Taylor dismissed all charges. The Defendants initially sought costs against the Plaintiff under section 19 of the Prosecution of Offenders Act 1985 but later withdrew those applications. Subsequently, the Plaintiff applied for prosecution costs from Central Funds under section 17 of the same Act. This application was dismissed by Her Honour Judge Taylor, the decision which is now subject to judicial review proceedings brought by the Plaintiff. The application for permission to bring judicial review was initially refused on paper but renewed orally before the reviewing Judge, who reserved judgment after a hearing where neither the Defendant nor the Interested Party appeared.

Legal Issues Presented

1. Whether the refusal to award prosecution costs under section 17 of the Prosecution of Offenders Act 1985 amounted to a jurisdictional error sufficient to permit judicial review.
2. Whether the court erred in law by finding that the prosecution was brought for a dominant improper motive.
3. Whether the court was wrong to withhold costs due to insufficiency of evidence at the commencement and during the continuation of the case.
4. Whether the court erred in law by attaching no weight to expert reports and their conclusions.
5. Whether the court impermissibly considered irrelevant factors such as the quantum of costs claimed and absence of a Voluntary Bill application.
6. Whether procedural unfairness occurred in the costs hearing by failing to allow the Plaintiff to respond to the judge’s concerns.
7. Whether the judge failed to consider all relevant evidence, including the Plaintiff's latest statement and skeleton argument.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contended that mixed motives are common in private prosecutions and that any improper motives were limited to a period before proceedings commenced, not dominating thereafter.
• The Plaintiff argued that instructing experienced counsel and multiple expert witnesses demonstrated good faith and proper motive.
• The Plaintiff asserted that the judge wrongly disregarded expert reports and gave undue weight to procedural errors and perceived attempts to influence expert evidence.
• The Plaintiff claimed that the judge improperly considered irrelevant factors, including the lack of prior similar awards of prosecution costs, the amount claimed, and absence of a Voluntary Bill application.
• He alleged procedural unfairness during the costs hearing, as the judge did not challenge him on concerns underlying the refusal of costs, denying an opportunity to respond.
• The Plaintiff argued the judge failed to consider all relevant evidence, notably a skeleton argument and witness statement dated 3 June 2019.
• Overall, the Plaintiff contended the judge’s refusal to award costs was based on flawed reasoning and jurisdictional error.

The Defendant and Interested Party made no submissions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ex parte London Borough of Harrow [2001] 1 CR App R 117	Establishes that jurisdictional error deprives Crown Court of jurisdiction, permitting judicial review of Crown Court decisions otherwise excluded by statute.	The court referenced this case to support the principle that if a decision involves jurisdictional error of sufficient gravity, it may be quashed by judicial review.
R (M) v Kingston Crown Court [2015] 1 Cr App R 3	Confirms that orders relating to trials on indictment may be quashed if jurisdictional error deprives the Crown Court of jurisdiction.	The court cited this authority to affirm the standard for jurisdictional error necessary to permit judicial review of Crown Court cost decisions.
R (DPP) v Aylesbury Crown Court [2017] EWHC 2987 (Admin)	Sets out the approach to assessing whether a decision of the Crown Court is amenable to judicial review on grounds of jurisdictional error.	The court applied the principles from this case to assess whether the refusal of prosecution costs involved jurisdictional error or flawed reasoning warranting judicial review.

Court's Reasoning and Analysis

The court undertook a detailed review of the Plaintiff’s eight grounds, assessing whether any demonstrated a reasonably arguable claim for judicial review based on flawed reasoning or jurisdictional error of sufficient gravity. The court acknowledged that mixed motives are common in private prosecutions and accepted the Plaintiff’s submission that dominant improper motive must be established to refuse costs. However, the judge’s findings—based on the Plaintiff’s own email communications shortly before commencing proceedings and the manner in which expert evidence was obtained and presented—supported a conclusion that the prosecution was pursued unreasonably and without good cause.

The court found that the judge was entitled to consider her prior detailed ruling dismissing the charges when assessing the costs application, applying a different legal test but properly taking the evidence into account. The Plaintiff’s involvement in managing evidence and experts was found to be unreasonable, justifying the judge’s approach. The court rejected the Plaintiff’s argument that irrelevant factors such as the amount claimed or absence of a Voluntary Bill application influenced the decision, finding these were only observations and did not affect the outcome.

Procedural fairness was upheld, with the court concluding that the judge was not required to disclose her likely decision and reasons during the Plaintiff’s oral evidence. The alleged failure to consider certain documents was also dismissed, as the judge expressly referred to the relevant skeleton argument in her ruling. Ultimately, the court found no arguable basis that the decision was wrong, irrational, or involved jurisdictional error of sufficient gravity to permit judicial review.

Holding and Implications

The court REFUSED PERMISSION for judicial review, concluding that the Plaintiff’s case lacked sufficient merit and was not reasonably arguable.

The direct effect is that the Crown Court’s decision refusing prosecution costs under section 17 of the Prosecution of Offenders Act 1985 stands. No new precedent was established, and the judgment reaffirms the discretionary nature of awarding prosecution costs and the limited circumstances in which judicial review of Crown Court cost decisions is permissible.