Journal Detail back to listing
Update on costs award to Defendant for Prosecution case that “should not have been started”
- Jun 26, 2026
- Latest Journal
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.
We have previously written of costs being awarded against a fire 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 flat 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 fire precautions), such as to place relevant persons at risk of death or serious injury in case of fire, alleging various defects purportedly identified during an FRA inspection.
Notwithstanding the “expert” evidence of the investigating officer, 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 fire. Belatedly, the FRA offered no evidence, and a not guilty verdict was entered.
The contractor then applied to the Court for an order for costs against the FRA, under section 19(1) of the Prosecution of Offences Act. Being a case that was brought on the basis of “expert” evidence by the investigating officer, 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 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 officer that there were no 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 insufficient evidence – a later inspection confirmed the presence of the strips.
Ultimately, the judge concluded that the prosecution should never have been started and, exceptionally, ordered the FRA to pay defence costs.
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 identified”. 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 figures).
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 financial effects.
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 effect on prosecutorial functions”. Following further defence submissions, the Court did not accept this argument either:
“There was agreed expert evidence here that the very foundation of the prosecution was flawed... In other words, this was a prosecution which shouldn’t have been brought without further and better evidence of breach. I do not agree that that has a chilling effect, but rather, serves as an appropriate warning, namely: do not bring a prosecution without an appropriate and competent inspection which reveals a breach of the regulations.”
Quite!
About the Authors
Tom McNeill is a partner in BCL Solicitors LLP.
Colin Todd is Managing Director of leading fire safety consultants, C.S. Todd and Associates Ltd. Counsel instructed for the contractor were Richard Matthews KC, of Mayfair Place Chambers, and Tom Doble, of QEB Hollis Whiteman.