Barker Gotelee

Most transport businesses and drivers never find themselves the subject of a prosecution - but if they do, it is probably an unusual, one-off event unlikely ever to be repeated.  Often it can be stressful and expensive in terms of fines, prosecution costs and legal fees.  However, it is about to become particularly painful even if an individual or business wins the case, as will be explained below.

It can no longer be assumed that winning a case means recouping one’s legal costs.  For this reason, it is highly advisable to re-visit the question of whether defence insurance cover is in place and ensure there is adequate cover.

If a prosecution is started against a business or individual in this sector then it may be one brought by the police (through the Crown Prosecution Service) or Vehicle Operator & Services Agency (VOSA) for traffic/transport-related offences; alternatively criminal court proceedings may be commenced by the Environment Agency (e.g. for a polluted watercourse or waste offences) by the HSE or a council for workplace-related accidents, by a council for animal welfare/movement, food hygiene, planning offences or by other regulatory bodies for a variety of reasons.  Whatever the offence the proceedings are in the criminal jurisdiction of our legal system (Magistrates or Crown Court).

The majority of offences are dealt with in the Magistrates court but fines can be still hefty; moreover,  prosecution claims for costs can be very large and if a defendant is convicted the court will normally order the full amount to be paid, even if it is far greater than the fine itself.  This will include not only the cost of the court case but also the investigation leading to the prosecution.  A Crown Court case will be even more expensive.  Even the simplest cases brought by VOSA against drivers include claims for several hundreds of pounds in costs.

However, until this week it has always been the case that if a defendant is acquitted (not guilty verdict) or the case is withdrawn, then the court will normally award a defendant’s costs order which means that the defendant can recoup all or most of the defence costs.

In an extraordinary (and in legal circles highly criticised) new development, the law has changed so that with effect from the start of November the maximum amount which a ‘winning’ defendant can claim is one to be fixed at legal aid rates of payment, currently as little as 25% of the actual hourly cost of defending the case.  The  effect of this will be that a defendant individual or business will have to pay most of their legal costs, even if they win and even if the case brought against them is poor or misguided.  The Government’s rationale is linked to legal aid work and rates of payment, largely unchanged for almost twenty years.

These new rules only apply to proceedings commenced after 31st October 2009 so any current cases are not subject to the change.  It is also entirely conceivable that there will be legal challenges to this change in the law in due course and any change in government may also trigger a change given the policy of some political parties on this.

Individuals and businesses will undoubtedly suffer due to this change - they may be ruined financially, in extreme cases, even if they win a flawed prosecution.  There may be reduced incentive to bring appeal proceedings; defendants may also be inclined to plead guilty regardless of the case against them, given that they cannot recoup most of their costs if they win - hardly in the interests of justice, seemingly.

Two recent cases starkly illustrate these issues: in one a driver appealed to the Crown Court to reduce a fine (which it did from £500 to £30) and awarded him his costs - under the new rules the driver could only recoup a small amount of his costs and would have less incentive to bring the appeal in a case in which he had been clearly wronged in the Magistrates Court by a wholly reasonable penalty.  In another case (an insecure load) an Operator was recently prosecuted when a manufacturing defect caused part of a load to fall from its vehicle when it had done all that was reasonably necessary to secure the load - the prosecution was persuaded to drop the case, which had been poorly investigated by the police, on the basis that there was insufficient evidence; under the new costs proposals the lion’s share of the costs would still have to be met by the Operator (and driver, also prosecuted) even though the case against them had little foundation.  In short, one will pay for one’s acquittal, for the most part!

Given this worrying change everyone should look at how they would fund a defence - what legal insurance cover is in place, or needs to be put in place, and will it be sufficient?

Tim Ridyard

© Barker Gotelee