PM, R (on the application of) v The Director of Public Prosecutions

Deputy Costs Judge Latham :

1. This judgment concerns the correct interpretation and effect of CPR r.36.17 in the context of detailed assessment proceedings which were compromised following the delivery of judgment on a number of preliminary issues. Background

2. This is the detailed assessment of the Claimant’s costs arising out of a successful claim for judicial review of the Defendant’s decision to prosecute the Claimant. In light of the subject matter and the previous Anonymity Order made by Chamberlain J on 15 October 2021, I intend to limit the factual background as much as is reasonably possible to prevent identification. In any event, to the extent that the facts of the underlying claim are relevant to this detailed assessment, they may be briefly stated.

3. In late 2020, police executed a warranted at the home of the Claimant (who was then a child) following receipt of information that indecent images were being accessed. The Claimant made admissions at the scene that he had accessed material via online chatrooms to which he had been directed whilst gaming. Having attended the police station voluntarily to be interviewed he was then arrested.

4. The Claimant was issued with an Educational Health and Care Plan. In March 2021 the lead police officer in the case informed the Claimant that the CPS would determine whether the matter would be referred to the Youth Offending Team, which it subsequently was. A letter of representations was provided by Solicitors then acting for the Claimant.

5. In April 2021 the Youth Offending Team declined to accept the case and the matter was referred back to the CPS who, in June 2021, indicated an intention to charge the Claimant. A second letter of representations was sent by the Claimant’s then Solicitors. In reply, a Senior Crown Prosecutor simply informed the Solicitors that the charge would proceed. The then Solicitors made a request for clarification of the CPS’s reasoning in light of the matters set out in the letters of representation, but no response was forthcoming.

6. Instructions were thereafter given to Irwin Mitchell LLP who prepared and served a letter before action, intimating a claim for judicial review and alleging a failure to provide reasons, a failure to comply with disclosure requests and a failure to comply with the duty of candour. The Defendant rejected the claim and judicial review proceedings were issued.

7. Following a contested application for disclosure, the Defendant agreed to discontinue the criminal proceedings in favour of a simple youth caution. The judicial review proceedings were withdrawn on terms that the Defendant pay the Claimant’s reasonable costs, subject to detailed assessment if not agreed. A Consent Order was filed accordingly. The Detailed Assessment Hearing

8. The Claimant served a bill of costs totalling £83,135.60 under a Notice of Commencement dated 2 July 2024. Points of Dispute were served by the Defendant and Replies thereto served by the Claimant. The parties having been unable to reach agreement, a request for a detailed assessment hearing was filed at the Senior Courts Costs Office on 23 October 2024.

9. On 17 April 2025 the Claimant served a letter containing a series of offers pursuant to CPR r.36. The parties’ agreed position before me was that the Claimant’s letter amounted to an effective Part 36 offer by which the Claimant was offering to accept the sum of £65,542.57 inclusive of interest to expiry of the relevant period on 8 May 2025 (“the Part 36 Offer”). The Defendant chose not to accept.

10. The matter proceeded to a detailed assessment hearing before me, listed for one and a half days over 16 and 17 June 2025. The first two points of dispute concerned the period during which interest would be payable upon costs, and the appropriate hourly rates of both Irwin Mitchell LLP and Counsel instructed in the case. On the morning of the first day, having heard submissions on those two points of dispute, I gave ex tempore judgments determining them.

11. At that juncture, and at the request of the parties’ advocates, I stood the matter down for a short time so that negotiations could resume in light of my determinations. After a short while the advocates returned to court to inform me that they had reached agreement.

12. I was informed that the agreement reached between the parties was that the Defendant should pay to the Claimant the sum of £65,000.00 in respect of the costs claimed in the bill of costs i.e. excluding interest and detailed assessment costs (“the Agreement”). The parties were also agreed that the effect of my decision on interest was that interest totalled £2,651.74. Accordingly, the sum recovered by agreement was more advantageous in money terms than the Part 36 offer made by the Claimant approximately two months earlier, albeit I was told that when reaching the Agreement, neither party had made reference to the Part 36 Offer.

13. The parties were not agreed as to whether the effect of the Agreement gave rise to the consequences set out in CPR r.36.17(4) and I was invited to determine the same. The Law

14. In so far as is relevant, CPR r.36.17 provides as follows: - (1) Subject to rule 36.24, this rule applies where upon judgment being entered— (a) a claimant fails to obtain a judgment more advantageous than a defendant’s Part 36 offer; or (b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Part 36 offer. (2) For the purposes of paragraph (1), in relation to any money claim or money element of a claim, “more advantageous” means better in money terms by any amount, however small, and “at least as advantageous” shall be construed accordingly. … (4) Subject to paragraph (7), where paragraph (1)(b) applies, the court must, unless it considers it unjust to do so, order that the claimant is entitled to— (a) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired; (b) costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired; (c) interest on those costs at a rate not exceeding 10% above base rate; and (d) provided that the case has been decided and there has not been a previous order under this sub-paragraph, an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is— (i) the sum awarded to the claimant by the court; or (ii) where there is no monetary award, the sum awarded to the claimant by the court in respect of costs— Amount awarded by the court Prescribed percentage Up to £500,000 10% of the amount awarded Above £500,000 10% of the first £500,000 and (subject to the limit of £75,000) 5% of any amount above that figure. (5) In considering whether it would be unjust to make the orders referred to in paragraphs (3) and (4), the court must take into account all the circumstances of the case including— (a) the terms of any Part 36 offer; (b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made; (c) the information available to the parties at the time when the Part 36 offer was made; (d) the conduct of the parties with regard to the giving of or refusal to give information for the purposes of enabling the offer to be made or evaluated; and (e) whether the offer was a genuine attempt to settle the proceedings.

15. In respect of the costs of detailed assessment proceedings, CPR r.47.20 provides as follows: - (1) The receiving party is entitled to the costs of the detailed assessment proceedings except where – (a) the provisions of any Act, any of these Rules or any relevant practice direction provide otherwise; or (b) the court makes some other order in relation to all or part of the costs of the detailed assessment proceedings. (2) Paragraph (1) does not apply where the receiving party has pro bono representation in the detailed assessment proceedings but that party may apply for an order in respect of that representation under section 194(3) of the 2007 Act. (3) In deciding whether to make some other order, the court must have regard to all the circumstances, including – (a) the conduct of all the parties; (b) the amount, if any, by which the bill of costs has been reduced; and (c) whether it was reasonable for a party to claim the costs of a particular item or to dispute that item. (4) The provisions of Part 36 apply to the costs of detailed assessment proceedings with the following modifications – (a) ‘claimant’ refers to ‘receiving party’ and ‘defendant’ refers to ‘paying party’; (b) ‘trial’ refers to ‘detailed assessment hearing’; (c) a detailed assessment hearing is “in progress” from the time when it starts until the bill of costs has been assessed or agreed; (d) for rule 36.14(7) substitute “If such sum is not paid within 14 days of acceptance of the offer, or such other period as has been agreed, the receiving party may apply for a final costs certificate for the unpaid sum.”; (e) a reference to ‘judgment being entered’ is to the completion of the detailed assessment, and references to a ‘judgment’ being advantageous or otherwise are to the outcome of the detailed assessment. (5) The court will usually summarily assess the costs of detailed assessment proceedings at the conclusion of those proceedings. (6) Unless the court otherwise orders, interest on the costs of detailed assessment proceedings will run from the date of default, interim or final costs certificate, as the case may be. (7) For the purposes of rule 36.17, detailed assessment proceedings are to be regarded as an independent claim. The Parties’ Submissions

16. I heard oral argument on the point at the conclusion of the detailed assessment hearing, but both parties anticipated that there may be authorities of some assistance and as neither party had anticipated this issue arising, I granted the parties some time to prepare supplemental written submissions which I have now considered.

17. For the Claimant, Mr Laking argued the straightforward position that the sum recovered was more advantageous to the Claimant than his Part 36 Offer and that, unless it was unjust to do so (which he contended it was not), then the consequences at CPR r.36.17(4) should apply.

18. For the Defendant, Mr Levin contended that it had not been his intention to reach an agreement which gave rise to Part 36 consequences. He contended that he would not have agreed to the Agreement had he known the Claimant would contend for those consequences as a result. He told me that his “understanding” was that Part 36 consequences would not flow from the Agreement.

19. In any event, Mr Levin referred me to the terms of CPR r.47.20(4)(e) which informs that “a reference to judgment being entered is to the completion of the detailed assessment” and submitted that as the assessment had resolved by consent and not by way of judicial determination that the Agreement was not a “judgment’ within the meaning of CPR r.36.17 and/or CPR r.47.20. In that respect, reference was also made to the notes in the White Book at 40.1.1 which make reference to a number of authorities which grapple with whether a consent Order is a ‘judgment’ for a variety of different purposes (but none by reference to the provisions of CPR 36 and/or CPR 47).

20. In reply, Mr Laking submitted that the Defendant’s failure to realise the consequences of the Agreement do not unravel it. The Defendant did not contend that the parties had agreed that the consequences of Part 36 would not apply. That, said Mr Laking, would be necessary in order to exclude provisions which would otherwise automatically apply where judgment was entered for an amount more advantageous to the Claimant than the Part 36 Offer (subject of course to the Court’s ability to find that it would be ‘unjust’ to do so). It would have been open to the Defendant to make the exclusion of Part 36 consequences a term of the Agreement, but they had not done so.

21. As to the terms of CPR r.47.20, Mr Laking submitted that there was no basis to imply a condition into the clear wording of the rules that the ‘completion’ of the detailed assessment had to be by way of judicial determination rather than by agreement. He submitted that it was entirely ordinary during the course of proceedings for parties to reach agreements and invite the court to enter judgment ‘by consent’. In any event, Mr Laking pointed to the fact that the court had made a number of determinations which had resulted in further negotiation and the Agreement. There was nothing in CPR 36 or CPR 47 which suggested that ‘judgment’ required a determination by the court of every point in issue and it was not necessary to import such a condition into the rules. He pointed me to CPR r.40.6(3)(a)(i) which expressly allows for the entry of judgment or an order for the payment of an amount of money by consent. Determination

22. In my judgment, the Part 36 consequences set out at CPR r.36.17(4) do apply and it would not be unjust to award them.

23. Firstly, I cannot accept the Defendant’s submission that the nature of the Agreement was such that Part 36 consequences were disapplied. On the Defendant’s own case Part 36 consequences were not a feature of the Agreement one way or the other. In my judgment, all parties negotiating the conclusion of detailed assessment (or indeed any other) proceedings should be aware of any effective Part 36 offers, and should be aware of the consequences of their agreeing to settle the substantive claim on terms which are more advantageous to their opponent than any Part 36 offer made by that opponent. I accept Mr Laking’s submission that it is open to parties when reaching agreement to make their offer to settle conditional upon the exclusion of any number of consequences which would otherwise flow, leaving the offeree able to decide whether they wish to compromise on those terms. But the Defendant did not do that on this occasion.

24. As to the alternative submission that ‘judgment’ was not entered in this case, I accept that it is not a condition of either CPR r.36.17 nor CPR r.47.20 that ‘judgment’ follow a judicial determination of the whole or part of the claim. Since receiving submissions in this case, the Court of Appeal has very recently handed down judgment in Smithstone v Tranmoor Primary School [2026] EWCA Civ 13 ; [2026] 4 W.L.R. 8 in which Bean LJ held as follows at [29]-[30]: - “[29] In Vanden Recycling Limited v Kras Recycling BV [2017] EWCA Civ 354 Hamblen LJ considered whether a consent order made as between the claimant company and the second defendant was to be treated as a “judgment” for the purposes of the rule that satisfaction of a judgment against one tortfeasor defendant is a bar to a claim against another tortfeasor alleged to be liable for the same damage. He said: [46] In the White Book commentary to CPR 40.1 there is a discussion as to the meaning of a "judgment" or "order" under the RSC and the CPR . It is pointed out that although the CPR refers to the two terms, sometimes in conjunction and sometimes not, "no basis for distinguishing between them can be derived from the rules themselves". … [49] If one has regard to what the Consent Order does rather than what it says it requires Bolton to pay a specified sum in respect of Vanden's claims. As far as those claims are concerned it is a final order. If there was judgment for Vanden on its damages claims following a trial a court order for payment in similar terms would be likely to be made. Although the Consent Order does not use the wording of adjudication or judgment, the order it makes is to the same effect as one which would be made following a judgment. [50] Since in substance and in effect the order for payment made by the Consent Order is the same as would be made following a judgment I consider that the judge was correct to conclude that it is to be treated as a judgment for the purpose of the rule that satisfaction of a judgment bars claims against tortfeasors liable for the same damage.” [30] I have set out above the terms of the order made by DDJ Khan on 26 November 2020 recorded on the court's "General Form of Judgment or Order". I have no doubt that it is both a judgment and an order and any attempt to distinguish between the two terms in describing it is misconceived. One might have a rather abstract discussion about whether the words in paragraph 1, “the Claimant may accept the sum of £2,650.00 in satisfaction of the claim”, had they stood alone, could properly be described as a judgment or an order. Paragraph 3, stating that “the Defendant shall pay both damages and costs to the Claimant's solicitors by 4pm on 18 December 2020” is both a judgment and an order. So is paragraph 2 ordering the Defendant to pay the Claimant’s fixed costs summarily assessed at £7114.50. Each of these paragraphs, and the document as a whole, can be described as either a judgment or an order.

25. Applying those conclusions to the facts of this case, when the parties returned to court to inform me that they had reached agreement as to the quantum of the costs claimed in the bill of costs, I find that they were inviting me to complete the detailed assessment on those terms. Whether that had been subsequently achieved by way of a judgment or Order, or – in detailed assessment proceedings – by way of the issuance of a final costs certificate, the effect was the same. Judicial determination is not a necessary feature. Using the language in CPR r.47.20, the detailed assessment was “completed” by consent.

26. It formed no part of the Defendant’s submissions that if Part 36 applies, it would be otherwise ‘unjust’ to allow the consequences set out at CPR r.36.17 and I allow them accordingly. Consequentials

27. I invite the parties to seek to agree an Order reflecting this judgment, including the quantum of the detailed assessment costs. If agreement cannot be reached, a short hearing can be arranged to resolve any outstanding matters.