EWJ FEB 59 2025 web - Flipbook - Page 20
Costs Awarded Against a Fire and
Rescue Service for a Prosecution Case
That “Should Never Have Been Started”
Sometimes described as the “innocence tax”, companies acquitted of criminal charges,
including charges under fire safety legislation, cannot claim for the costs of their defence from
central funds. However, rarely used legislation does permit an acquitted company to be awarded
costs against the prosecuting authority if the conduct of the prosecution was “starkly improper”.
In this article, Tom McNeill and Colin Todd MBE set out the circumstances of a successful
application for costs after a fire and rescue authority finally dropped its prosecution of a
defendant company, under the Regulatory Reform (Fire Safety) Order 2005, following expert
evidence.
association to install replacement fire resisting flat
entrance doorsets (“FEDs”) in one of their properties.
The FEDs were specified by the housing association
to have an FD 30 (30 minutes’ fire resistance) rating
(as opposed to FD 30S, the S denoting the additional
provision of smoke seals), though, in the event, they
were also fitted with smoke seals.
Claims for defence costs
Long gone are the days, in England and Wales, when
innocent companies, against whom a prosecution is
brought, could be reimbursed for costs of defending
the prosecution from central funds.
Similarly, for individuals who privately funded legal
representation to prove their innocence, most of their
legal costs are no longer recoverable (there is some
scope to recover some fees, capped at extremely low
“legal aid” rates).
The FEDs were installed by sub-contractors to the
inner leaf of a blockwork cavity wall. Initially, the
housing association were dissatisfied with the installation work, so further instruction was given to the
sub-contractors and the doors were re-installed.
This applies, of course, to prosecutions brought by
prosecuting authorities and private prosecutors, including those brought by fire and rescue authorities
(“FRAs”) under the Regulatory Reform (Fire Safety)
Order 2005 (“the Fire Safety Order”).
Around two years later, the housing association raised
further concerns, and the contractor agreed to pay for
a third-party inspector, who examined four of the
FEDs. For the purpose of the inspection, architraves
were removed from the corridor side of the FEDs. It
is highly significant that no inspection was carried out
within the flats themselves. It was alleged that certain
installation defects were identified at this time.
Legislation
Under the Prosecution of Offences Act 1985 and Costs
in Criminal Cases (General) Regulations 1986, where
a court is satisfied that one party to criminal proceedings has “incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the
proceedings”, the court may make an order for payment
of these costs to be paid by the prosecuting party (i.e.
the FRA).
This resulted in a complaint by the housing authority
to the FRA, two officers of which carried out a limited
form of inspection of four FEDs in November 2018,
again removing architraves on the corridor side, but
not within flats.
Courts have made it clear that costs awards of this
nature will be very rare, and the bar of proof is set very
high.
There followed a lengthy investigation by the FRA,
with which the contractor cooperated fully. Most of
the detail of the inspections were not known at this
stage. On the basis of the minimal disclosure provided,
it was pointed out that the investigating officer’s principal concern related to the gap between the two skins
of blockwork which formed the cavity wall, but which
was unrelated to the installation of the doorsets. To assist, a diagram was provided to the FRA which identified the relevant parts of the doorsets.
Even if a defendant is found to have no case to answer,
this does not reach the required threshold, nor does
failure on a matter of law, nor mere unreasonableness.
Courts take the view that the conduct of the prosecution must be “starkly improper”, to the extent that no
significant investigation into the facts or decision making is necessary to establish that the prosecution made
a clear and stark error, resulting in costs for the
defendant. Such cases will be exceptional.
In 2022, the FRA charged the contractor with a
breach of article 8 of the Fire Safety Order (duty to
take general fire precautions), such as to place relevant persons at risk of death or serious injury in case
of fire, so resulting in an offence under the Order.
The case in question
The matter began life as a commercial dispute. In
2016, a contractor was contracted by a housing
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