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Costs awarded against a fire and rescue service for a prosecution case that “should never have been started”
- Feb 24, 2025
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Sometimes described as the “innocence tax”, companies acquitted of criminal charges, including charges under fire safety legislation, cannot claim for the costs of their defence from central funds. However, rarely used legislation does permit an acquitted company to be awarded costs against the prosecuting authority if the conduct of the prosecution was “starkly improper”.
In this article, Tom McNeill and Colin Todd MBE set out the circumstances of a successful application for costs after a fire and rescue authority finally dropped its prosecution of a defendant company, under the Regulatory Reform (Fire Safety) Order 2005, following expert evidence.
Claims for defence costs
Long gone are the days, in England and Wales, when innocent companies, against whom a prosecution is brought, could be reimbursed for costs of defending the prosecution from central funds.
Similarly, for individuals who privately funded legal representation to prove their innocence, most of their legal costs are no longer recoverable (there is some scope to recover some fees, capped at extremely low “legal aid” rates).
This applies, of course, to prosecutions brought by prosecuting authorities and private prosecutors, including those brought by fire and rescue authorities (“FRAs”) under the Regulatory Reform (Fire Safety) Order 2005 (“the Fire Safety Order”).
Legislation
Under the Prosecution of Offences Act 1985 and Costs in Criminal Cases (General) Regulations 1986, where a court is satisfied that one party to criminal proceedings has “incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings”, the court may make an order for payment of these costs to be paid by the prosecuting party (i.e. the FRA).
Courts have made it clear that costs awards of this nature will be very rare, and the bar of proof is set very high.
Even if a defendant is found to have no case to answer, this does not reach the required threshold, nor does failure on a matter of law, nor mere unreasonableness. Courts take the view that the conduct of the prosecution must be “starkly improper”, to the extent that no significant investigation into the facts or decision making is necessary to establish that the prosecution made a clear and stark error, resulting in costs for the defendant. Such cases will be exceptional.
The case in question
The matter began life as a commercial dispute. In 2016, a contractor was contracted by a housing association to install replacement fireresisting flat entrance doorsets (“FEDs”) in one of their properties. The FEDs were specified by the housing association to have an FD 30 (30 minutes’ fire resistance) rating (as opposed to FD 30S, the S denoting the additional provision of smoke seals), though, in the event, they were also fitted with smoke seals.
The FEDs were installed by sub-contractors to the inner leaf of a blockwork cavity wall. Initially, the housing association were dissatisfied with the installation work, so further instruction was given to the sub-contractors and the doors were re-installed.
Around two years later, the housing association raised further concerns, and the contractor agreed to pay for a third-party inspector, who examined four of the FEDs. For the purpose of the inspection, architraves were removed from the corridor side of the FEDs. It is highly significant that no inspection was carried out within the flats themselves. It was alleged that certain installation defects were identified at this time.
This resulted in a complaint by the housing authority to the FRA, two officers of which carried out a limited form of inspection of four FEDs in November 2018, again removing architraves on the corridor side, but not within flats.
There followed a lengthy investigation by the FRA, with which the contractor cooperated fully. Most of the detail of the inspections were not known at this stage. On the basis of the minimal disclosure provided, it was pointed out that the investigating officer’s principal concern related to the gap between the two skins of blockwork which formed the cavity wall, but which was unrelated to the installation of the doorsets. To assist, a diagram was provided to the FRA which identified the relevant parts of the doorsets.
In 2022, the FRA charged the contractor with a breach of article 8 of the Fire Safety Order (duty to take general fire precautions), such as to place relevant persons at risk of death or serious injury in case of fire, so resulting in an offence under the Order.
The alleged breaches were that, in the inspection by officers of the FRA, it was found that the following defects were identified:
• excessive gaps between the door frames and the surrounding structure (i.e. the inner skin of the cavity wall);
• there was no, or no adequate, fire-resisting/fire stopping material to remedy these gaps; and
• the door frames were inadequately fixed to the surrounding structure.
However, from the disclosure provided in advance of the first court appearance, it was apparent that none of the inspections had been properly conducted.
The photographic evidence was poor but established that the inspections were looking in the wrong place. For two of the four doorsets, the inspection had not been of the doorsets but of a decorative door reveal liner some distance away (attached to different blockwork). The FRA continued to make allegations in relation to the gap between blockwork unrelated to the installations. There was no evidence in relation to the fixings (and this point was later dropped).
Insofar as the inspections were in the right general location, photographic and other evidence flatly contradicted the FRA findings in relation to the presence of fire stopping and size of the gaps.
Importantly, the FRA inspection had also examined three of the four doorsets that had already been subject to invasive inspections by the third party / housing association. This prior inspection included remedial works the nature of which were never disclosed to the defence (despite numerous requests). Significant damage caused by the prior inspection was clearly evidenced in the photographs.
The contractor’s solicitors, BCL, appointed Colin Todd as an expert witness for the defence, and in turn Lin Parry, a recognised expert in timber fire doors. Both consultants confirmed that the inspection by the officers of the FRA was seriously flawed, and pointed out that, because the doorsets were fixed within the inner skin of the cavity wall, the inspection of the doorset should have taken place from inside the flat, failing which it was simply not possible to determine if there were any breaches.
A further major issue in the case was the presence, or otherwise, of intumescent strips in the rear face of the frame, to swell and seal the gap between the frame and the wall to which it was fixed in the event of fire. The doorsets were third party certificated on the basis of a fire resistance test, in which these intumescent strips were fitted. The manufacturer’s data sheet showed that strips were fitted in their product. They were not, for example, fitted by installers on site.
The version of BS 8214 applicable at the time of installation advised that, in the case of an FD 30 door, gaps of greater than 10 mm between the frame and the wall could be addressed by fitting a single intumescent strip. The doors in question were designed with two parallel strips. Yet, the FRA were adamant that these strips were not present notwithstanding all the evidence served to the contrary.
This culminated in the FRA’s investigating officer producing a witness statement several days after an “application to dismiss” (i.e. a hearing to determine whether the case should be stopped before trial due to an insufficiency of evidence) which asserted emphatically (and in capital letters) that there were no intumescent strips by reference to photographs that did not show the relevant parts of the doorsets.
That this claim was baseless (alongside other stark errors by the FRA) was pointed out in further defence expert evidence (the defence also wrote to the FRA and the court stating that it was considering a future costs claim); however, the damage had been done: the judge ruled that it was not for him but for a jury to decide a dispute between “experts”. The case continued.
Following the dismissal application and service of a “defence statement”, the defence applied to the judge to direct that a further invasive inspection take place. Some of the doorsets installed by the contractor were still in situ and so the presence, or otherwise, of the intumescent strips could be confirmed definitively.
After much back and forth, a representative of the FRA, Colin Todd, Lin Parry and a prosecution expert witness (appointed after the dismissal hearing) visited the site to observe an entire doorset being removed, at which time it was found, unsurprisingly, that the twin intumescent strips were indeed present. The inspection also confirmed the presence of other fire-stopping from the contractor’s installations, only partially removed during reinstallation, which the FRA had alleged not to be present.
Subsequently, a joint statement by Colin Todd and the prosecution expert witness agreed every material aspect of the defence case, including that the FEDs should have been inspected from within the flats, and ultimately that there was insufficient evidence to establish a breach of the Fire Safety Order still less that any relevant person had been placed at risk of death or serious injury in case of fire.
Accordingly, at a hearing earlier this year, the FRA offered no evidence on the single count on the indictment, and the Court directed that a Not Guilty verdict be entered.
The claim for costs
The contractor then applied to the Court for an order for costs against the FRA, under the Prosecution of Offences Act. Being a case that was brought on the basis of “expert” evidence, the test in R v Aylesbury CC [2018] applied: was the “expert” evidence “plainly wrong in a way that should have been obvious to the Crown”?
There was little doubt that the FRA was “plainly wrong” – the key issue was when the FRA should have known. The prosecution also reminded the judge that an order under the Prosecution of Offences Act was a very rare one to reflect stark impropriety.
In the absence of expert evidence to the contrary, the judge accepted the evidence of Colin Todd and Lin Parry to the effect that the prosecution case was founded on an incompetent inspection of the premises. The judge also found that this incompetence was compounded by a (not deliberate) misstatement by the FRA’s investigating officer that there were no intumescent strips. Further, the FRA expert subsequently appointed did not engage properly with the two crucial points, namely the issue of the intumescent strips and the lack of an inspection within the flats. The judge found that the prosecution should never have been started.
A costs assessment process remains ongoing.
Authors
Tom McNeill and Colin Todd MBE
Tom McNeill is a partner in BCL Solicitors LLP.
Colin Todd is Managing Director of leading fire safety consultants, C.S. Todd and Associates Ltd. Counsel instructed for the contractor were Richard Matthews KC, of Mayfair Place Chambers, and Tom Doble, of QEB Hollis Whiteman.