Expert Witness Journal Issue 67 June/July 2026 - Flipbook - Page 102
Update on costs award to
Defendant for Prosecution case
that “should not have been started”
by Tom McNeill, Partner at BCL Solicitors LLP & Colin Todd, MBE, Managing Director at
C. S. Todd & Associates Ltd.
intumescent strips in a critical location (between
the door frame and the surrounding structure), a
central dispute when an earlier judge was deciding
whether the case should be “dismissed” for
insu昀케cient evidence – a later inspection con昀椀rmed
the presence of the strips.
We have previously written of costs being awarded
against a 昀椀re and rescue authority (“FRA”) for a
prosecution case that “should not have been started”
(February 2025 edition). We now update on costs.
Our client (“the contractor”) was prosecuted in
relation to the installation of 昀氀at entrance doorsets
(“FEDs”) at housing association properties. The
FRA charged the contractor with a breach of article
8 of the Fire Safety Order (duty to take general 昀椀re
precautions), such as to place relevant persons at
risk of death or serious injury in case of 昀椀re, alleging
various defects purportedly identi昀椀ed during an
FRA inspection.
Ultimately, the judge concluded that the prosecution
should never have been started and, exceptionally,
ordered the FRA to pay defence costs.
Notwithstanding the “expert” evidence of the
investigating o昀케cer, the experts subsequently
appointed to assist the Court concluded that the
evidence did not establish a breach of duty nor a risk
of death or serious injury in case of 昀椀re. Belatedly,
the FRA o昀昀ered no evidence, and a not guilty verdict
was entered.
As to the amount of costs payable, the general rule
under section 19(1) is that “the assessment must
be of an amount that reasonably compensates the
receiving party for costs actually, reasonably and
properly incurred as a result of the unnecessary
or improper act or omission identi昀椀ed”. The judge
ordered that defence costs be assessed by the relevant
government department and no issue was taken with
their assessment of the amount of costs reasonably
and properly incurred (a sum comfortably into six
昀椀gures).
The contractor then applied to the Court for an
order for costs against the FRA, under section 19(1)
of the Prosecution of O昀昀ences Act. Being a case that
was brought on the basis of “expert” evidence by the
investigating o昀케cer, the test in R v Aylesbury CC
[2018] applied: was the “expert” evidence “plainly
wrong in a way that should have been obvious to the
Crown”?
The FRA argued that the judge had a discretion to
discount the amount otherwise payable on the basis
that the FRA was a public authority with limited
resources. Following defence submissions, the judge
concluded that the FRA did not have a protected
status by reason of being a public authority, and no
submissions had been made on its behalf in relation
to ability to pay or 昀椀nancial e昀昀ects.
The judge concluded that the evidence was plainly
and obviously wrong, accepting the evidence of
defence experts, Colin Todd and Lin Parry, that the
prosecution case was founded on an incompetent
inspection of the premises (including looking in
the wrong place). The judge also found that this
incompetence was compounded by a misstatement
by the investigating o昀케cer that there were no
What was further contended, and ultimately the only
argument advanced on behalf of the FRA, was that
requiring them to pay the full amount, as assessed,
would risk a “chilling e昀昀ect on prosecutorial
functions”. Following further defence submissions,
the Court did not accept this argument either:
EXPERT WITNESS JOURNAL
“There was agreed expert evidence here that the
very foundation of the prosecution was 昀氀awed... In
100
JUNE 2026
