Bowden v Department of Justice (Re Application by Personal Representative of Liam Holden (Deceased) for Judicial Review)

Factual and Procedural Background

This appeal concerns a claim for miscarriage of justice and the question of whether legal costs should be paid to the appellant's solicitors under the statutory scheme established by the Criminal Justice Act 1988 ("the 1988 Act"). The original applicant, who has since died, was convicted in 1973 of murder and sentenced to death, later commuted to life imprisonment. After serving 17 years, the conviction was quashed in 2012. The personal representative of the deceased applicant continued the proceedings.

In 2014, the applicant lodged a claim for compensation under section 133 of the 1988 Act. An independent assessor determined the total compensation to be over £1 million, but the statutory cap limited the award to £1 million. The applicant accepted this maximum compensation in March 2017. Subsequently, the independent assessor assessed reasonable legal costs of approximately £120,171.12, which the respondent declined to pay, citing the statutory cap.

The appellant sought judicial review of the decision not to pay legal costs. The High Court dismissed the judicial review in September 2023, holding that the statute does not permit payment of costs over the statutory maximum compensation. The appellant appealed, and the respondent cross-appealed, challenging the timeliness of the application and the costs order. The Court of Appeal heard the case in 2024.

Legal Issues Presented

1. Whether the statutory scheme under the Criminal Justice Act 1988 permits payment of legal costs to the appellant's solicitors in addition to the statutory maximum compensation awarded for miscarriage of justice.
2. Whether the appellant's application for judicial review was lodged within the applicable time limits.
3. Whether the court erred in declining to order the appellant to pay the respondent's costs following dismissal of the judicial review application.

Arguments of the Parties

Appellant's Arguments

• The decision refusing payment of legal costs was unlawful and misinterpreted sections 133(4A) and 133A(5) of the 1988 Act.
• The respondent's interpretation undermines the statutory intent to provide full compensation (restitutio in integrum) to deserving applicants, effectively reducing compensation by deducting costs.
• An alternative, remedial construction of the statute should allow payment of necessary, reasonable, and proportionate legal and expert costs beyond the statutory maximum compensation.
• Legal representation and expert assistance are necessary components of compensation claims, and not providing for these costs imposes an unjust burden on applicants.
• There is an implied power to pay costs by necessary implication from the power to pay compensation, based on the legal maxim that where anything is granted, that is also granted without which it cannot exist.
• The judge erred in rejecting the implication of a power to pay costs above the statutory maximum.

Respondent's Arguments

• The statutory maximum compensation limit of £1 million includes any legal costs, and no separate payment of costs is permitted under the 1988 Act.
• The appellant's judicial review application was out of time, as the respondent's position was known by March 2017, but proceedings were not issued until August 2018.
• The judge correctly interpreted the statute and no power exists to pay costs beyond the capped compensation.
• Costs are generally payable only where expressly provided by statute, and the absence of such provision in the 1988 Act is deliberate.
• The appellant should be ordered to pay the respondent's costs, as the appellant failed in the application and there was no good reason to depart from the usual costs rule.
• The court erred in considering immaterial factors and in the weight given to the costs assessment exercise.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Holden v The Ministry of Defence and the Chief Constable of the PSNI [2023] NIKB 39	Consideration of compensation and costs under the 1988 Act; held that compensation did not include costs.	Supported the appellant’s argument that costs are distinct from compensation, but the court ultimately found the statutory cap includes costs.
Re R & Re O v Secretary of State for Home Department [2022] UKSC 3	Principles of statutory interpretation emphasizing the primacy of statutory language and context.	Guided the court’s approach to interpreting the 1988 Act, focusing on the statutory text and context rather than external aids.
R (Bhatt Murphy (a firm) and Others) v Independent Assessor; R (Niazi and Others) v Secretary of State [2008] EWCA Civ 755	Clarified that "compensation" under the statutory scheme includes legal costs and that the statutory cap applies to total sums payable.	Supported the respondent’s position that costs are included within the capped compensation amount.
Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591	Statutory interpretation requires seeking the meaning of the words used by Parliament.	Reinforced the court’s focus on the statutory language as the primary guide to legislative intent.

Court's Reasoning and Analysis

The Court of Appeal conducted a detailed statutory interpretation of sections 133 to 133B of the Criminal Justice Act 1988, focusing on whether legal costs can be paid in addition to the statutory maximum compensation.

The court emphasized the primacy of the statutory language and context as outlined in Re R & Re O, applying an objective approach to ascertain the legislature’s intent. The court noted the absence of any express provision in the 1988 Act authorizing payment of costs beyond the capped compensation and contrasted this with other statutory schemes that expressly provide for costs.

The court acknowledged the appellant’s argument that costs are necessary and should be payable separately, but concluded that the statutory cap was deliberately designed to include all payments, including costs. It rejected the appellant’s reliance on legal maxims and implied powers to pay costs beyond the cap, holding that such an inference cannot override clear statutory language.

The court found the process of assessing costs after the compensation award was futile, as the respondent had no legal obligation to pay beyond the cap. It recognized the appellant’s understandable grievance but held that the court cannot rewrite legislation.

Regarding timeliness, the court agreed with the judge that the relevant date for the judicial review application was when the appellant became aware the respondent would not pay costs (3 May 2018), not the date of acceptance of compensation. The cross-appeal challenging timeliness and costs orders was dismissed as without merit.

The court also criticized the use of non-public draft legislative materials in the judge’s reasoning, noting such materials are inadmissible aids to statutory construction.

Ultimately, the court affirmed the judge’s decision that the statutory scheme does not permit payment of legal costs over and above the statutory maximum compensation.

Holding and Implications

The Court of Appeal DISMISSED THE APPEAL and also dismissed the respondent’s cross-appeal.

The court held that under the Criminal Justice Act 1988, the statutory maximum compensation includes any legal costs incurred, and no additional payment of costs beyond this cap is permitted. The appellant’s judicial review was within time, but the refusal to pay costs above the statutory limit was lawful.

The decision confirms that compensation for miscarriage of justice claims under the 1988 Act is capped and inclusive of costs, reinforcing the legislative policy to limit total payments. The ruling clarifies the statutory interpretation of the compensation scheme but does not establish new precedent beyond confirming the existing legislative framework. The parties will be heard on costs of the appeal.