cross - costs ruling

have occurred if the party concerned had conducted his
case properly”.
Or the test put forward in Ridehalgh v Horsefield
[1994] Ch 205 approved and confirmed in R v
Counsell [2014]WL 978909 that:
“improper…covers any significant breach of a
substantial duty imposed by a relevant code of
professional conduct. But it is not limited to that.
Conduct which would be regarded as improper
according to the consensus of professional opinion….”
8. I have been referred to Evans v The Serious Fraud
Office [2015] EWHC 263 in which Hickinbotton J
reviewed both lines of authority. The learned judge in
that case concluded that the test in R v Denning, not
Ridehalgh or Counsell, was to be applied. That said
Hickinbottom J reviewed the current state of the law
and further stated:
“…each case will necessary be fact dependent…it is
important that s19 applications are not used to attack
decisions to prosecute by way of collateral challenge;
and the courts must be ever vigilant to avoid any
temptation to impose too high a burden or standard on
a public prosecuting authority in respect of
prosecutorial decisions…to form the basis of an
application under s19 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….cases in which it will be
appropriate to make (let alone grant) a S19 application
against a public prosecutor will be rare and restricted
to those exceptional cases where the prosecution has
made a clear and stark error as a result of which a
defendant has incurred costs for which it is appropriate
to compensate him…i.e. the decision was one which no
reasonable prosecutor could have made…”