Mythbusting: Recovery of Costs in Private Prosecutions
Private prosecutions provide an effective way to seek justice; and particularly in circumstances when the traditional prosecuting agencies are unable or unwilling to act. Conducted appropriately they can be a useful, efficient and cost-effective tool to secure punishment of the guilty. Conducted badly they can be an expensive mistake with far reaching consequences.
In this blog series we draw on our experience of both bringing and defending private prosecutions to help clarify some of the common myths and misunderstandings about private prosecutions. In this blog we look at whether having an ulterior motive in starting a private prosecution can lead to problems down the line.
Myth – It is perfectly proper to bring a private prosecution as a means to apply pressure to bring about a financial settlement.
Some individuals are attracted to private prosecutions out of a mistaken belief that they are a good tool to leverage their position in a financial dispute. We have previously considered the issue of how a private prosecution motivated purely by spite or some other ‘oblique motive’ can lead the court to stay the proceedings as an abuse of process, more information can be found here. The recent case of Muhammed Asif v Adil Iqbal Ditta and Noreen Riaz  EWCA Crim 1091 has provided a salutary reminder of the risks of starting a private prosecution when the motivation for doing so is one of self-interest rather than public interest.
Mr Muhammed Asif is a property developer residing in Lahore and owns a number of businesses in Pakistan and Dubai. Mr Adil Ditta is a property developer and restaurant owner who resides in the United Kingdom. Mr Mohammed Safdar Gohir is Mr Asif’s cousin and resides in the United Kingdom.
Mr Asif and Mr Gohir collaborated in their business and property interests, and Mr Asif looked after Mr Gohir’s business interests in Pakistan and their roles were reversed in the United Kingdom. In around 2006, Mr Gohir introduced Mr Ditta to Mr Asif and they subsequently collaborated in several joint ventures.
Mr Asif commenced a private prosecution at the City of Westminster Magistrates Court in February 2019 against Mr Ditta and his wife, Noreen Riaz. The charges included fraud, theft and concealing / transferring criminal property and related to an allegation that the defendants had defrauded Mr Asif of more than £1 million. Two separate frauds were alleged; the first was in respect of a joint venture investment in land, and the second concerned Mr Asif’s shares in a company which Mr Ditta had previously acquired.
An application on behalf of Mr Asif for a restraint order against both defendants was heard by HHJ Hehir on 29 March 2019, during which the judge expressed some concern about the prosecution. HHJ Hehir refused the application on the basis that a risk of dissipation had not been demonstrated. HHJ Hehir expressed concern that the private prosecution was a business tactic and said:
“It does seem to me that what this at the end of the day really is is a contractual or a business dispute. Mr O’Neill [instructed for Mr Asif] tells me that at the end of the day what the prosecutor wants is the restitution of his money and it may well be that he is perfectly entitled to bring a private prosecution to achieve that aim, but that, coupled with the position of Mr Gohir, does cause me concerns.”
The charges were sent to Southwark Crown Court pursuant to section 51 of the Crime and Disorder Act 1988 and were heard by HHJ Tomlinson. Applications were made by both defendants to dismiss the charges on the grounds of insufficiency of evidence, or alternatively, to stay the proceedings as an abuse of process of the court.
The applications were based on the following grounds:
In written submissions made following the hearing, Mr Asif offered to pay £150,000 by way of a “security for costs”.
HHJ Tomlinson stayed the proceedings as an abuse of process in relation to both defendants and dismissed the charges against Mrs Riaz. In respect of Mrs Riaz, the primary basis for that ruling was the absence of contemporary documentation evidencing that she played any significant part in any fraud.
In his ruling, HHJ Tomlinson observed that Mr Asif’s very late offer to provide security for costs in the sum of £150,000 rendered it harder, not easier, to understand why civil proceedings had not been instituted; and that Mr Asif’s motivation was obvious; namely to obtain financial recompense in his own private interests. More specifically:
“where it is respectably arguable that the prime unambiguous motivation is leverage to enforce a person’s liability as the prosecutor or those close to him see it, it becomes more improbable that such a prosecution could be thought to be in the public interest.”
Overall, the judge said he could be satisfied that Mr Asif was a front man or ‘proxy prosecutor’ for Mr Gohir. It thus followed that the prosecution was an abuse of the process of the court.
Mr Asif was refused leave to appeal.
Davis LJ gave detailed reasons for refusing leave to appeal, which can be read in full here. In summary, Davis LJ held that “the decision of Judge Tomlinson (even if some of his propositions, for example with regard to the public interest, may have been rather too widely stated) was justified. This private prosecution in the Crown Court is being pursued, in reality on behalf of Mr Gohir, simply as a device or lever to achieve monetary restitution from the defendants and with a view to evading the use of civil proceedings for that purpose. It is an affront to the process of the Crown Court and to the court’s sense of justice that it should be used for such a purpose. The case is in this regard plainly distinguishable on the facts from a case such as R (G) v SS  EWCA Crim 2119.”
Mr Asif took the matter to the Court of Appeal. The Court of Appeal upheld the decisions of HHJ Tomlinson and Davis LJ. In considering the stay jurisdiction in private prosecutions, the Court’s focus was on indirect or improper purposes.
In its reasoning, the Court of Appeal considered that it is “well established that a private prosecutor can have another motive as well as being motivated by a public interest factor” and that “mixed motives are not of themselves a bar to a private prosecution”; however, the “question is where the line is to be drawn between the public interest motivation and the other “oblique” motive.”
It held that HHJ Tomlinson had not erred in law or in principle in his analysis and that his decision was not unreasonable and should be upheld. More specifically:
“It was open to the judge on the material which he had, to conclude (as he did) that there was in relation to this prosecution a primary motive and one which was so unrelated to properly constituted proceedings that it renders it a misuse or abuse of process. The evidence plainly entitled the judge to reach a conclusion that this was a prosecution being brought primarily to accomplish a purpose for which it is not designed. The vulnerability of the applicant’s case on this ground was perhaps tacitly acknowledged by Mr Bott’s [Counsel for Mr Asif] attempt to argue that because mixed motives are not offensive, the test is whether there was a sole improper motive. But that is not where the authorities stand."
Here, there is the striking anomaly of the absence of any civil proceedings. As Mr Bott noted in argument, on their face, civil proceedings would present a much better and easier route to recovery of the sums in question. Although in argument before HHJ Hehir counsel then instructed advocated the merits of the cost and time effectiveness of the criminal route, against that would have to be put the advantages of the civil route, including the lower burden of proof, the greater reliability of the tribunal and indeed the availability of tactical pressure points such as CPR Part 36.
Further, as Davis LJ noted, the transcript of the hearing before HHJ Hehir on 29 March 2019 is revelatory. There was an open admission by leading counsel for the prosecutor in response to some very probing questions from the judge that what the prosecutor wants:
“… at the end of the day is he wants his money back and…the criminal courts are ideally suited to catering for the ultimate remedy of the return of his funds…”. (p 4 lines 3 - 13 of that transcript)
It is plain that the evidence on this formed an important part of HHJ Tomlinson’s reasoning. In particular, he referred to the:
“unassailable reality that the private prosecutor … wants it to be brought … in his interests … against a background of … having made efforts over quite a lengthy period to come to agreement with D1 … it appears they lost confidence in any likelihood he would compensate them. So a prosecution was launched and the civil route bypassed altogether.”
The Court of Appeal concluded that the private prosecution was being used for private tactical and oppressive reasons and that no arguable error had been made by HHJ Tomlinson in staying the proceedings as an abuse. Further, it agreed with Davis LJ that this case would not satisfy the Full Code Test applicable to public prosecutors.
The defendants made an application for costs in respect of their costs of the hearing before the Court of Appeal and the Crown Court.
The defendants in the current case submitted that if the Court finds this had been a manufactured prosecution and an attempt to “pull wool over the eyes of the court” then the defendants are entitled to costs against Mr Gohir and Mr Asif.
The Court of Appeal considered the following key points in their decision as to costs:
The Court was satisfied that the result of the authorities which state that the legal principles applicable to public prosecutions apply straightforwardly to private prosecutions is that costs principles apply equally.
The Court was satisfied here that it both had the power to determine the costs aspects of the case (under section 19(1) and 19(2)(a) of the Prosecution of Offences Act and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986), and that it should do so.
The Court granted the applications for costs against both Mr Asif and Mr Gohir, and held that both should be liable for costs as a result of the serious misconduct in this case.
In its decision as to costs, the Court of Appeal considered the conduct of the parties and concluded that Mr Asif fell short of the high standards that are required of private prosecutors. The approach in this case was abusive and improper; Mr Asif should have brought civil proceedings which would have been the more appropriate approach in this case. Furthermore, Mr Asif had acted as a proxy prosecutor, which in itself denotes abuse.
For those who are contemplating starting a private prosecution be warned, if your underlying motive is to use the threat of the criminal law to improperly apply pressure to another rather than holding an offender to account, then it is more than likely that the prosecution will be stopped and you will be held liable for the other party’s costs.
For further information on the issues raised in this blog, please contact Melinka Berridge Partner in our private prosecutions team.
Melinka Berridge is a Partner at Kingsley Napley. She is a founding member and the Executive Secretary of the Private Prosecutors' Association and she leads the team at Kingsley Napley responsible for the conduct of private prosecutions.
Christina Orthodoxou is an Associate at Kingsley Napley. She specialises in the defence of a range of professionals, particularly in the legal and financial industries, and assists on matters spanning the Regulatory department’s three core service areas, namely defending regulated individuals, organisations and corporates; advice for regulators and public bodies; and legal services regulation.
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