Health and Safety Executive v Chester Crown Court - Judicial Review of Costs Award

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  Health and Safety Executive, R (On the Application Of) v Chester Crown Court [2026] EWHC 688 (Admin) (23 March 2026)

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[2026] EWHC 688 (Admin) | | |
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| | | Neutral Citation Number: [2026] EWHC 688 (Admin) |
| | | Case No: AC-2025-MAN-000348 |
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT

| | | Civil Justice Centre
1 Bridge Street West,
Manchester M60 9DJ |
| | | 23/03/2026 |
B e f o r e :

KAREN RIDGE SITTING AS A DEPUTY HIGH COURT JUDGE

Between:
| | THE KING
(on an application by the HEALTH AND SAFETY EXECUTIVE) | Claimant |
| | - and ? | |
| | CHESTER CROWN COURT | Defendant |
| | -and- | |
| | FALCON TOWER CRANE SERVICES LIMITED | Interested Party |

**Jamas Hodivala KC and Rufus D'Cruz (instructed by Blake Morgan LLP) for the Claimant
Prashant Popat KC and Christopher Adams (instructed by FSW Law) for the Interested Party

Hearing date: 26 November 2025**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

2. Deputy High Court Judge Karen Ridge:
4. Introduction
5. This is the Claimant's renewed application for permission to commence judicial review proceedings in relation to an award of costs made by HHJ Everett, the Honorary Recorder of Chester (the Judge), sitting at Chester Crown Court. That costs award provided that the Claimant should pay the Interested Party's costs of ?587,382.76 in relation to what was effectively a prosecution which was discontinued part-way through the criminal trial.
7. The Interested Party (Falcon) was the defendant in criminal proceedings brought by the Claimant (the HSE) for breaches of statutory health and safety provisions. The costs order was made pursuant to section 19 of the Prosecution of Offences Act 1985 and is set out in a detailed ruling dated 12 May 2025 (the Ruling). In these proceedings the Interested Party has been represented by Mr Popat KC and Mr Adams. The Claimant has been represented by Mr Hodivala KC and Mr D'Cruz, neither of whom conducted the trial for the HSE. The Court is grateful to all advocates for their helpful written and oral submissions.
9. The Criminal Proceedings
10. The trial before the Judge commenced on 4 November 2024. It arose out of the tragic deaths of three employees of Falcon which occurred when a crane collapsed during a construction job at Dunwoody Way. The crane collapsed because it had not been properly erected by Falcon employees and others having followed the written instructions for crane erection in a Method Statement which contained an error. The HSE brought the prosecution under sections 2 and 3 of the Health and Safety at Work etc Act 1974. The criminal charges were brought as a result of alleged failures to ensure the safety of employees and a failure to ensure that persons not in its employment were not exposed to risks to their health or safety.
12. The HSE prosecution case alleged that Falcon had not appointed an appropriate person, the Appointed Person (AP), in order to oversee the preparation of the Method Statement for crane erection. HSE contended that Falcon was required to make the appointment of the AP in writing in accordance with British Standards for the industry. HSE further contended that no such person had been appointed. Falcon contended that Alan Ridgway [1] was the AP for the job in question.
14. The main prosecution witness was Mr Alan Ridgway who had been employed by Falcon. Mr Ridgway had provided a written statement and at the criminal trial he gave evidence in chief to say that he was not the AP for the Dunwoody Way job. During his cross-examination Mr Ridgway changed his evidence completely when he accepted that he was the AP. HSE then elected to offer no further evidence and the Judge directed the jury to return not guilty verdicts on both counts. The trial ended.
16. The Costs Ruling [references in brackets are to paragraphs in the Ruling]
17. Falcon subsequently made an application for a costs order on the basis that the prosecution should not have been instigated given the evidence which was before HSE. Following two days of oral argument, supplemented by lengthy written submissions, the Judge produced a detailed Ruling in which he analysed the evidence which was before HSE and which could potentially have been requested at the point that a decision to prosecute was taken. He concluded that there had been unnecessary acts or omissions by HSE which were stark and which constituted improper conduct, causing him to make the costs award requested.
19. The Judge had the benefit of hearing some live trial evidence and reading the evidence which was before the HSE at the point it decided to prosecute. His analysis is set out at [54 to 163] and it is a detailed and thoughtful exposition of both the evidence which was in the possession of HSE and that which should have been sought and was before a prosecutor at the point that a prosecution was decided upon. The assessment sets out 15 sub-headings dealing with various matters and makes findings as to the relevance and supporting value of the various pieces of evidence.
21. Key findings from the costs ruling:
23. > Mr Ridgway had transferred from McCarthy and Stone to Falcon two years before the incident as a senior and highly experienced employee. Mr Ridgway entered into a contract of employment with Falcon which was signed by him. He was a qualified AP and had been employed as such by McCarthy and Stone. [58]
24. > The employment contract set out his primary responsibilities which included "To compile method statements and act as Appointed Person for Falcon Tower Crane Services Ltd" [64]
25. > The prosecution case hinged on the fact that the disastrous error in the method statement could have been picked up by the AP but Mr Ridgway was not appointed as the AP and indeed no-one else had been so appointed [65]
26. > The assertion made by the prosecution in its opening that Mr Ridgway had not been appointed as an AP was difficult to understand given the contents of his contract of employment and the fact that he was described as a site inspector should not have deflected the prosecution from his contractual employment duties [67]
27. > Falcon's Quality Control Document for a safe system for the erection of tower cranes was a comprehensive document with a clear written system for ensuring safe working practices in crane erection. It contains an explicit reference to a requirement that prior to the delivery and erection of a Tower Crane "the AP or Site Inspector" was required to attend [70+73]
28. > When the Quality Control Document is read in conjunction with Alan Ridgway's contract of employment, even a cursory reading of these documents would show that he was an AP [77]
29. > There was the clearest evidence from a wholly impartial witness (Steven Humphrey) that Alan Ridgway had attended at the Dunwoody site on 2 June 2017 and had introduced himself as the AP. It was difficult to understand how the prosecution relied upon both Mr Humphrey and Alan Ridgway as witnesses of truth when their evidence on Alan Ridgway being the AP diverged widely [86]
30. > When interviewed by police (in relation to a possible manslaughter charge) Alan Ridgway asserted that he had shown his Site Inspector card at the site visit on 2 June 2017 but the prosecution failed to link those answers with his job description in his contract of employment; the systems in the Quality Control Document and the evidence of Steven Humphreys [88]
31. > Following the 2 June 2017 site visit, Alan Ridgway prepared a detailed site plan and risk assessment (which went into the Method Statement), as well as a Lift Plan and Risk Assessment Report and when preparing the latter Report Alan Ridgway inserted his identification number as an AP [89]
32. > Christopher Garton had asserted that Alan Ridgway had never been an appointed person; he said that he did not know why Alan Ridgway's name was on the Method Statement but "tellingly he did say that the role of site inspectors included all of the duties of an AP" and careful reading of his statement showed that he had failed to understand the duties of an AP; failed to familiarise himself with the detailed system set up by Falcon and that his unsatisfactory assertions were in contrast to the evidence of Christopher Harmer [93 and 94]
33. > Christopher Harmer's evidence was that Alan Ridgway was the AP for the job and the AP and site inspector is always the same person [94 and 95]
34. > Christopher Harmer's evidence about the chronology as to Alan Ridgway's appointment to carry out the site inspection led the Judge to conclude that:
35. "Any prosecutor should have concluded that this was sent to Mr Blears, Mr Ridgway and Mr Humphreys for them to read, amend (if necessary) and approve before returning it to Christopher Harmer. Any prosecutor should have concluded that Alan Ridgway was sent it because he was the Appointed Person. The very fact that Alan Ridgway's name was on the Method Statement which had been sent out clearly indicated that he was appointed by Falcon as the relevant Appointed Person. His subsequent denials in his police interview could and should have been rejected by both the police and HSE investigators and also any prosecutor considering the documentation." [96]
36. > "Of course, the issue in this case was, I repeat, that the prosecution was alleging that, once the Method Statement had been produced, the company system was not satisfactory or safe in that there was no reasonable system for an appointment of an Appointed Person. The defence case was that all of the evidence in the possession of the prosecution pointed to the fact that there was such a system." [101]
37. > Despite Mr Ridgway's subsequent assertion, when interviewed by the police, that he did not look, in any detail, at any Method Statement in relation to this operation, and that it wasn't his duty to do so, the prosecution had clear evidence to the contrary, prior to making the decision to prosecute Falcon. [104]
38. > Given the statement of Paul Blears about the meeting between him and Alan Ridgway in which Mr Ridgway took two employees of Seddon through the Method Statement and Mr Blears annotated it:
39. "It is difficult to understand how the prosecution was able to assert that Alan Ridgway was never told that he was the Appointed Person and had never seen the relevant Method Statement in detail keeping in mind evidence of this nature. By failing to properly read and assess Steven Humphreys' crucial statement the prosecution failed to understand and appreciate the issues at the heart of this case. In fact, the annotations in the copy of the Method Statement (as entered by Steven Humphreys at that meeting) clearly showed that Alan Ridgway had actually looked at the specific part of the Method Statement, which contained the fatal omission, but failed to spot it." [108]
40. > In relation to the police interviews of Alan Ridgway during which Mr Ridgway denied being the AP, there was no consideration of this job description and the annotated Method Statement from Steven Humpreys and the site meetings with Mr Humphreys and Mr Blears were not put to Alan Ridgway. Notwithstanding the lack of robust challenge to Mr Ridgway in his police interview, at the date a decision to prosecute was made:
41. "?the reviewing lawyer in the HSE had a wealth of information (to which I have already referred in this ruling) which clearly showed that Mr Ridgway was not telling the truth in his police interviews, and which showed that Falcon's system was perfectly satisfactory. In considering whether to bring a prosecution against Falcon it would, of course, be the duty of the HSE to carefully read all of the relevant information, including Falcon's Quality Control Document." [126]
42. > In relation to the correspondence between HSE and Falcon during the investigation, the Judge found that Falcon had provided whatever documents the police and HSE had requested and it must have been apparent that Falcon would provide any documentation requested [131]
43. > "Regrettably, I am driven to the conclusion that, whoever had "reviewed" the evidence in this case, in the possession of the HSE, had either: (1) failed to read the relevant evidence, with the consequence that there was a failure to appreciate the significance of all of the information in the HSE's possession, or; (2) had read the evidence and still failed to appreciate its significance, or; (3) had made a decision to prosecute, despite the evidence, regrettably, displaying something akin to disdain for the written submissions put forward by and on behalf of the company." [142]
44. > HSE failed to obtain evidence concerning Alan Ridgway's employment history between 2015 and 2017 and that employment history clearly showed that he had been appointed as an AP since 2015; that his role as site inspector went hand in hand with his role as AP and that he had carried out 90 different procedures in a two year period to erect cranes, clearly as an AP [149]
45. > The additional information as to Mr Ridgway's employment history with Falcon could and should have been obtained by the prosecution [157]
46. > Mr Ridgway admitted during cross-examination that he was the AP. The Judge observed that
47. "What was particularly devastating for the prosecution was not just that their highly flawed case had been highlighted in this cross-examination, but that a significant majority of the evidence that was used to discredit Mr Ridgway came from the prosecution's own material and from information and evidence that the prosecution could and should have considered and obtained, but failed to do so." [161]
48. I have set out in some detail the key findings of the Judge in relation to the evidence which was before the HSE and which could and should have been obtained. The Judge's analysis is a thorough and methodical assessment of the available evidence. His findings are clearly supported and led to his conclusion that HSE should have concluded that Mr Ridgway was the AP and his conclusion that the case supporting a prosecution was flawed. His findings at [202] onwards are as follows:
50. "It will come as no surprise that I am satisfied so that I am sure that the HSE fell far short of that which was required of it in considering this case. I have referred in detail to those issues of evidence which point inevitably to the fact that the prosecution was wholly flawed, and that any reasonable prosecutor should have realised that the evidence pointed away from Falcon and not towards it, when considering who, if anyone, was at fault during the events leading up to the tragic loss of life of three men."
51. The Judge went on to conclude that the decision to prosecute at the time that it was made was not a reasonable one but was one which was the result of an unnecessary or improper act or omission [204(2)]. He concluded that the evidence inevitably pointed to the fact that any prosecutor should have concluded that a prosecution should not have been commenced. [204(3)]. The Judge went on to make the costs order recognising that this was a stark and exceptional case in which the prosecution, in his view, had made a series of stark and clear errors.
53. The Judicial Review Proceedings
54. The claim was issued on 29 July 2025 and is brought on two grounds. Firstly, that it was irrational of the Judge to conclude that he had jurisdiction to make the costs Order on the basis that HSE's decision to institute and maintain the prosecution amounted to "unnecessary or improper conduct" for the purpose of regulation 3 of the Costs in Criminal Cases (General) Regulations 1986. Ground 2 is an allegation that the decision to award costs in the sum of ?587,382.76 was unreasonable in all the circumstances.
56. The Defendant has indicated, as is usual, that it intends to remain neutral. Falcon contests the claim on the basis that it is an attempt to relitigate the arguments considered and rejected by the Judge.
58. Permission was refused on the papers by HHJ Stephen Davies by Order dated 1 October 2025. The Claimant sought renewal and the matter came before me at the hearing when five bundles were before the Court comprising the Core Bundle, the prosecution bundle for HSE costs submissions; the prosecution jury bundle; the defence jury bundle and the authorities bundle. In addition, the Claimant made an application to rely on part of the Coroner's Findings which had been made after the date of the impugned Ruling.
60. The Application to Rely on the Coroner's Findings
61. The Claimant made an application dated 8 October 2025 to rely on paragraph 33 of the Coroner's Determination, Findings and Conclusion document dated 1 October 2025. The Coroner's summing up was handed down following the Inquest into the deaths of the three workers. That Inquest took place between 22 September 2025 and 1 October 2025 following resolution of the prosecution against Falcon.
63. In her summing up document the Coroner concluded that Mr Ridgway had introduced himself to Mr Humphreys as "Site Inspector" at the meeting between Mr Humphreys and Mr Ridgway on 2 June 2017. She said:
65. "Mr Ridgway visited the customer site at Dunwoody Way, Crewe on 2 June 2017. On arrival he introduced himself as the Site Inspector and handed over a copy of his business card bearing that title and his personal email address".
66. In essence, the Claimant is seeking to rely on one narrow piece of evidence and to point out that the Coroner came to a different conclusion on the same evidence on one specific point, namely the way in which Mr Ridgway had introduced himself at that meeting. The Judge had noted that Mr Humphreys described Mr Ridgway introducing himself as the "Appointed person", whereas Mr Ridgway described simply handing over his business card that described him as "Site Inspector".
68. The Claimant contends that one of the issues in the claim is whether it was reasonably open to Judge Everett to conclude that the HSE had acted as no reasonable prosecutor could when assessing the conflicting evidence of the meeting between Mr Humphreys and Mr Ridgway. The Claimant contends that the Coroner's summing-up is relevant and admissible for that sole purpose.
70. Mr Popat for the Interested Party objects to the introduction of this small piece of evidence. The HSE by application sought to rely on two sentences out of a 127 page document comprising the entirety of the Coroner's findings. As Mr Popat points out the two sentences upon which the Claimant seeks to rely are limited to the manner in which Mr Ridgway introduced himself at the site meeting. It does not materially assist in the bigger picture as to the question of whether Mr Ridgway was in fact the AP, notably the Coroner found that he was. For all of the reasons set out in the response of Falcon dated 17 October 2025 I am satisfied that it would serve no useful purpose to admit this evidence and the application is refused. I turn now to consider whether permission should be granted.
72. Ground 1
73. Ground 1 contends that the Judge's finding that the decision to prosecute constituted improper conduct was irrational or unreasonable. The Claimant, HSE, accepts that the Judge applied the correct legal principles in assessing the costs application. Whilst the Judge had a discretion as to whether to make a finding of improper conduct, that discretion had to be exercised rationally and reasonably.
75. The principles on the exercise of the section 19 discretion are summarised in the Ruling at [42-46] which reflects the distilled principles from relevant authorities. The test is one of impropriety, not merely unreasonableness and the conduct of the prosecution must be starkly improper, such that no great investigation into the facts or decision-making process is necessary to establish it [2] ; the granting of section 19 applications will be very rare and restricted to exceptional cases where the prosecution has made a clear and stark error; the decision must be wholly unreasonable.
77. In essence, just because a prosecution fails does not mean that the threshold criteria for section 19 has been met; it is a high threshold and only in the rarest of circumstances would a challenge to the decision to prosecute be successful. The public policy interest in respecting the prosecutor's wide discretion in relation to difficult decisions to bring prosecutions is reflected by virtue of this high threshold, so as to ensure that the prospect of section 19 applications does not have a chilling effect on a prosecutor's discretion in making decisions as to when to bring prosecutions.
79. It is clear that the Judge had these principles at the forefront of his mind. He carried out a careful evaluative and holistic assessment of the evidence which was before HSE and the evidence which it could have obtained if further enquiries reasonably expected of a prosecutor had taken place. After going through that exercise the Judge concluded that the conduct of HSE was improper in pursuing a prosecution in relation to which, had it applied its mind to the evidence properly, and made reasonable enquiries, it would not have made the decision to prosecute or to maintain the prosecution to trial. Critically he concluded that no reasonable prosecutor would have made the decision to prosecute. [204]
81. The Judge was in the unique position of having heard the first part of the prosecution evidence and of having read the suite of evidence within the trial, as well as considering extensive written and oral submissions on costs. The prosecution entailed complex factual details and legal propositions. However, the case hinged on a simple evidential proposition and that was the prosecution allegation that Falcon had not appointed an AP for the Dunwoody Way contract.
83. The key piece of evidence was that of Mr Ridgway who had maintained up to cross-examination that he was not the AP. Falcon's case was that Mr Ridgway was the AP and the Judge found that was, or should have been, evident having regard to all of the other evidence. The Judge analysed all of the evidence, some of which pointed in different directions but for the reasons he set out, he concluded that the prosecutor, through improper acts and omissions, had instituted a prosecution which should never have taken place.
85. The Judge's reasoning is comprehensive and cogent; it comprises a logical and clearsighted analysis of the evidence available and reasonably available; it leads to a conclusion that the evidence inevitably pointed to the fact that any reasonable prosecutor would have concluded that a prosecution should not have been commenced and that the prosecution was flawed.
87. The Claimant seeks to attack the ruling on irrationality grounds on a number of bases, none of which are arguable. The Statement of Facts and Grounds (SFG) contains a chronology of the evolution of the evidence of Mr Ridgway and other evidence upon which the prosecution relied. It omits the wider canvas of evidence which was before the Judge and upon which any prosecutorial decision had to be made. The Judge had regard to all of the prosecution supporting evidence relied upon by the Claimant in the SFG, as well as that wider canvas of evidence and he concluded that there was a failure to examine the prosecution supporting evidence critically and to undertake further enquiries which should have been obvious [3] . That was a conclusion which was open to him and which, in my view was not arguably irrational on the facts of this case.
89. The Claimant alleges that the indicators listed in R v P [2011] EWCA Crim 1130 apply by analogy to this case without the added complication which was present in this case, namely the reverse burden of proof. For HSE, Mr Hodivala submits that the defence costs application ran to some 50 pages and was broad-ranging and unfocused which of itself indicated that the high threshold had not been reached. Irrespective of the extent and basis on which the costs application was made, the Judge's ruling was clear and focused.
91. Did the Judge fail to properly consider the elements of the offence involving the reverse burden of proof? For HSE, Mr Hodivala told the Court that the prosecution was put on the basis that Falcon did not have an AP. He explained that the counts on the indictment introduced a reverse burden of proof as fully explained in R v Chargot Ltd and Ors [2009] 1 WLR 1. Essentially the statutory duty and the fact of the accident resulted in the burden shifting to Falcon to establish that it had an AP and Mr Ridgway was essentially called to provide advance rebuttal evidence that he was the AP.
93. This allegation within ground 1 is not arguable. It relies, in part, on the Judge's later comments to Counsel in chambers that the HSE would not have got "past half-time on what it had to prove" to suggest that the Judge had misunderstood the law relating to the relevant offences. This allegation is unsustainable for three reasons. Firstly, the prosecution case had hinged on the allegation that Mr Ridgway was never formally appointed as AP and the lack of a proper system for making such an appointment was directly causative of the catastrophic accident. So much is clear from the Prosecution opening.
95. Secondly, the case did not in point of fact get past half time. In withdrawing the case before the jury, prosecution counsel stated, in relation to Mr Ridgway's evidence, that
97. "?on that basis alone, the prosecution took the view that what had been advanced in the prosecution's opening, namely that there was a failure on the part of Falcon because they did not have an appointed person in the correct sense, could not be maintained, because Mr Ridgway accepts that, in fact, he was the appointed person, and did know what he had to do?there may have been other legal arguments, there may have been other factual disputes, but regardless of those, that one alone it seemed to us meant that the prosecution could not suggest any failing to do that which was reasonably practicable by the defendant?" [4]
98. Thirdly, on any proper reading of the Ruling it is apparent that the Judge was clearly aware of the reverse burden of proof and that formed the context in which the prosecution was brought [171]. That awareness was present when he was assessing the reasonableness or otherwise of the decision to bring a prosecution. The simple fact remains that the prosecution case was put on a narrow basis, namely the central allegation that there was no AP for the Dunwoody Way job and that meant that the wrong instructions were given to the team responsible for erecting the crane. In real terms the prosecution set itself the task of proving that Mr Ridgway was not an AP.
100. The SFG and Mr Hodivala, in his oral submissions, alight on and seek to criticise individual findings of the Judge which went to his final conclusion of improper conduct. For example, where Judge Everett analysed the questioning of Mr Ridgway by the police in his police interviews in light of his job description and the statements of Steven Humphreys and Paul Blears and the annotated Method Statement.
102. The Judge concluded at [203] that the interviewing officers did not robustly challenge Alan Ridgway's untruthful accounts in his two interviews by reference to the wealth of countervailing evidence. Mr Hodivala suggested that the (inadequate) questioning of a suspect in a police interview comes nowhere near starkly improper conduct such as to justify a section 19 costs award. However, that is to fall into the error of examining the individual findings of the Judge when he had to assess the evidence before the prosecutor in its entirety before he came to the conclusion of improper conduct. Other attacks on the reasonableness of the Judge's decision are dealt with below.
104. Did the Judge arguably substitute his own conclusions on witness credibility for those of the prosecutor? Falcon's application for costs was predicated on an alleged breach of the Code for Crown Prosecutors due to a failure to consider whether there were any reasons to question the reliability of Mr Ridgway's evidence; a failure to consider whether there were reasons to doubt the credibility of Mr Ridgway's evidence and whether there was other material which might affect the assessment as to the sufficiency of that evidence to underpin a prosecution.
106. Paragraphs [93] to [100] of the Ruling analysed the witness statements of Mr Garton and Mr Harmer. In doing so, the Judge was performing the task of assessing the reasonableness of the decision to prosecute having regard to the evidence in the possession of HSE at the time of the decision. He was looking at those statements in light of all of the other evidence and looking at the extent to which they were internally consistent or supported by other evidence. This was part of his exercise in conducting a holistic examination of the whole canvas of evidence and asking whether the decision to prosecute was proper or improper.
108. It is not arguable that the Judge substituted his own conclusions on witness credibility. The Judge was making that assessment in the exercise of his overall discretion. Of importance is the Judge's conclusion that a significant majority of the evidence which was put to Mr Ridgway during his cross-examination came from material which was already before the prosecution, or was evidence which could, and should, have been obtained. It is not arguable that his findings in relation to these matters were irrational.
110. Did the Judge have sufficient regard to the chilling effects of a costs order? It is not disputed that the Judge applied the law correctly in his analysis. He also took care to set out the principles from all of the leading authorities. The Judge had requested information from HSE as to the decision to prosecute and he referred to the direct impact of the award on the HSE budget as outlined by Ms Padmore. He was clearly aware of the exceptional circumstances in which such an award was likely to be made, given the high threshold, and it is inconceivable that he would not have been conscious that there was a strong public interest in not deterring prosecutors from bringing prosecutions for fear of attracting adverse costs awards.
112. The HSE Concession: On day two of the costs hearings HSE accepted that not all prosecutors may have reached the same conclusion in relation to the bringing of a prosecution relying on the evidence of Mr Ridgway. At paragraph [52] the Judge regards this as an important concession, whilst noting that HSE, in responding to the costs application, had elected not to provide a statement from the lawyer who made the decision to prosecute.
114. The concession was notable for two reasons: firstly it represented some recognition by those representing HSE at the costs hearings that some prosecutors may not have commenced a prosecution. Secondly it was notable because that concession was at variance with the position set out in the letter of Ms Padmore in her response. The Judge logically concluded that it was a shift of position. The Judge characterised that shift in position as acceptance that the original case was based on flawed evidence.
116. I accept that the final sentence of [194] overstates the situation, namely the Judge's inference that HSE had realised in advance of day two of the costs application that the evidence could never have supported the prosecution. Whilst that could be said to go too far in characterising the concession, it is clear that the Judge was aware that the HSE position was still to defend the decision to prosecute and to maintain its position that the high threshold of starkly improper conduct had not been reached. It is not arguable that the Judge based his overall conclusion on this concession for these reasons and for the reasons I provide at paragraph 46 of this judgment.
118. The Question of Review: In an email dated 13 March 2023 solicitors for Falcon asked for a further review of the case on the basis that the proposed prosecution was based on unreliable evidence. In her response, Ms Harney invited the defence to draw her attention to anything specific and the defence did not provide any further information. However the Judge did refer to the defence statement which pointed to evidence in the possession of the HSE and he points out that the defence statement sets out many of the matters which were relied upon in cross examination of Mr Ridgway.
120. The alleged failure of the defence to voluntarily provide the information was advanced by Mr Hodivala for HSE during costs submissions. However, the Judge had considered that and concluded that Falcon had shown itself willing to produce any documents requested and that there was no reason to believe it would not have done so had it been asked for further information. Whilst the defence sought to criticise HSE for an alleged failure to use investigatory powers to require the production of information, it was not necessary for the Judge to deal substantively with this point given that his findings and conclusions were predicated on a failure to obtain obvious evidence regarding Mr Ridgway's employment history in circumstances where Falcon were co-operative and had shown themselves willing to provide any information requested.
122. The Code for Prosecutors makes it clear that when deciding whether there is sufficient evidence to prosecute, prosecutors should ask whether there are any reasons to question the reliability or credibility of any evidence as well as asking whether there is any other material that may affect the sufficiency of the evidence. When assessing the question of improper conduct or omission the Judge clearly had this in mind when looking at the evidence brought to bear during the cross-examination of Mr Ridgway.
124. The Quality Control Document: In conducting his assessment it is not arguable that the Judge unreasonably focused on the Quality Control Document to evidence a safe system of work. The Judge was plainly aware of the prosecution contention that this system was not adhered to in practice by virtue of the implementation of the Falcon system for appointing the AP and that the defective Method Statement had not been picked up by the system. The Judge took into account the suite of documents available including the evidence as to Mr Ridgway's employment contract and job description as specified. The Judge's assessment was properly based on all of the documentary and oral and written evidence available at the prosecution decision.
126. The Padmore Letter: After the trial ended the Judge asked HSE for an explanation as to the decision to prosecute. Ms Hazel Padmore, Deputy Director of Legal Services for HSE responded by letter dated 22 January 2025. The Judge was informed during the costs hearing that the letter was not written by the person taking the decision to prosecute but that it was a composite letter made up of contributions from different unidentified persons which had been sent out in Ms Padmore's name.
128. It is clear that the Judge did not find the letter particularly helpful to his understanding as to the reasons behind the decision to prosecute. It is not arguable that the Judge attached significant weight to his criticisms of the Padmore letter at [181-201]. I say this because on a clear reading of the Ruling, it is apparent that the findings which underpinned the analysis emanated from the Judge's analysis of the relevant evidence and its effect on the reasonableness of the decision to prosecute [section E]. Section F of the Ruling involves a thorough exposition of the relevant evidence both available and which would have been reasonably available. It underpins the conclusions on starkly improper conduct.
130. Section G of the Ruling sets out the parties' submissions on conduct and the costs application. The Judge dealt with the Padmore Letter (and the HSE concession) within this section when he was responding directly to the submissions made by HSE in relation to the costs application. Those criticisms in relation to the production of the letter did not form part of the considerations relevant to his conclusions on the reasonableness of the conduct of HSE in deciding to prosecute.
132. For all of the above reasons I conclude that ground 1 is not arguable and permission should not be granted.
134. Ground 2
135. The Judge ordered HSE to pay the full sum claimed of ?587,372.76. The Claimant contends that this is unreasonable for a number of reasons.
137. The Defendant has raised the question of whether this Court has jurisdiction to review the decision of the Crown Court as to quantum by virtue of section 29(3) of the Senior Courts Act 1981 which provides that:
139. "In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting or quashing orders as the High Court possesses in relation to the jurisdiction of an inferior court."
140. Mr Popat accepts that a costs order made under regulation 3 of the 1986 Regulations is a decision relating to trial on indictment which falls within section 29(3). Further he agrees that the Administrative Court has jurisdiction to review such an order in relation to ground 1 see R (Exolum Pipeline System Ltd) v Crown Court at Great Grimsby [2023] EWHC 2811 (Admin). This was on the basis that such a review would not delay a trial by interlocutory challenge or impugn a verdict or sentence after trial. Similarly, I see no reason why a review of the quantum of costs would fall foul of the Intermediate Basis identified by Fordham J. in the Exolum case as offending a core purpose of section 29(3) by delaying or impugning a ruling after trial. This is especially so on the facts of the case given that payment of the costs has already been made.
142. The assessment as to the quantum of costs payable was a judgment to be made by the Judge. It is not arguable that the amount awarded was so irrational or unreasonable that no reasonable Judge could ever have come to the same award.
144. The Judge had regard to all of the submissions. It was recognised by both parties that Falcon's insurers had agreed to meet the level of costs incurred. After considering the representations the Judge concluded that the amount awarded reasonably compensated the receiving party for the costs which it had actually, reasonably, and properly incurred. That was the basis on which a full costs award was made.
146. The Judge's rationale at [212] was that HSE's conduct fell far short of what was to be expected and he ordered payment of costs in full. That was an exercise of the wide discretion open to him and it is not arguable that it was irrational. It is not arguable that he impermissibly took into account the level of costs in civil proceedings. The comments at [208] appear to form part of the introductory comments to this topic and an apparent acknowledgement by the parties that the costs would have been significantly higher if the same team had been representing Falcon in the civil jurisdiction.
148. For these reasons ground 2 is not arguable and permission is refused.
150. I have therefore refused permission on both grounds. I would ask that Counsel draw up an agreed Order for my approval to reflect the terms of this judgment.
152. End

Note 1   Mr Ridgway?s name has been spelt inconsistently throughout these proceedings (Ridgway or Ridgeway). I have adopted the spelling Ridgway on the basis that this was the spelling on the email address used by Mr Ridgway. [Back]

Note 2   R v Cornish [2016] EWHC 779 [Back]

Note 3   For example, seeking details of the nature of the work undertaken by Mr Ridgway in his previous two years employment with Falcon. [Back]

Note 4   Defence Application for Costs, para 14. [Back]

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