ALERTER
HSE’s judicial review challenge to the costs order in R v Falcon Tower Crane Services Limited dismissed

Download this Alerter by Prashant Popat KC & Christopher Adams.

R (on the application of the Health and Safety Executive) v Chester Crown Court (Defendant) and Falcon Tower Crane Services Limited (Interested Party) [2026] EWHC 688 (Admin)

In a Judgment handed down on 23 March 2026 Karen Ridge, sitting as a Deputy High Court Judge in the Administrative Court in Manchester, has refused the HSE permission to bring judicial review proceedings to challenge a costs order made by HHJ Everett DL, the Honorary Recorder of Chester (“the Judge”) sitting at Chester Crown Court, pursuant to s.19(1) of the Prosecution of Offences Act 1985 (“POA 1985”) and Regulation 3 of the Criminal Cases (General) Regulations 1986 (“Regulation 3”), requiring the HSE to pay the entirety of Falcon’s defence costs of £587,382.76. Counsel were instructed by Richard Crockford and Susan Cha of FSW Law.

BACKGROUND

The background to the costs order is set out in the Alerter published on 15 May 2025 (available here). In brief, Falcon Tower Crane Services Limited (“Falcon”) was acquitted at trial in November 2024 following prosecution by the HSE for alleged breaches of sections 2 and 3 of the Health and Safety at Work etc Act 1974 arising from the collapse of a tower crane in Crewe in June 2017 in which three employees died. In opening its case the HSE asserted that an admitted error in the written method statement could and should have been identified before the crane was erected, but was not because Falcon had not appointed an ‘Appointed Person’ (AP) to oversee the erection of the tower crane, including production of the method statement and that, consequently, Falcon’s system for ensuring the safety of relevant persons was deficient. Falcon identified a person whom it contended it had appointed as AP, but in interviews with the police following the incident he denied that he had ever been appointed or instructed to carry out the role of AP, including for the job in Crewe, and he was subsequently called by the HSE as its principal witness in support of the case against Falcon.

The prosecution case collapsed when, following cross-examination of that witness by the Defence over the course of three days, he completely reversed his position and agreed that he had been appointed as an AP for Falcon in his employment contract, that he had carried out approximately 90 similar jobs for Falcon between 2015 and 2017 as the AP for Falcon, that by taking on the responsibilities he had undertaken for the job in Crewe he was fulfilling the role of an AP, and that in his view Falcon had set up a safe system of work for the erection of tower cranes generally. As a result the HSE conceded that, on the basis on which the prosecution had been brought, there was no evidence to show that Falcon was guilty of either of the two counts on the indictment, and the jury was directed to acquit Falcon.

In a comprehensive 37-page ruling dated 12 May 2025 the Judge ordered the HSE to pay the entirety of Falcon’s defence costs pursuant to section 19 of the POA 1985 and Regulation 3, finding that the prosecution should not have been brought and the instigation of the proceedings constituted starkly improper conduct because, among other things, (a) the interviewing officers did not robustly challenge the AP’s untruthful accounts in his two interviews, (b) evidence as to the AP’s role from the date of his employment by Falcon in 2015 to the date of the incident in 2017, although undoubtedly readily available, was “conspicuous by its absence from the prosecution case”, (c) the annotations on a version of the method statement produced during a site visit made clear that the AP had discussed the sequence for crane erection in the method statement but had not spotted the error in it, (d) a significant majority of the evidence used in cross-examination came from the HSE’s own material and from information and evidence that the HSE could and should have considered and obtained, but failed to do so, and (e) the HSE fell far short of that which was required of it in considering the case, the prosecution was wholly flawed and any reasonable prosecutor should have realised that the evidence pointed away from Falcon and not towards it.

THE JUDICIAL REVIEW PROCEEDINGS 

The HSE issued judicial review proceedings on 29 July 2025 seeking to challenge the costs order on two grounds. Ground 1 contended that the Judge’s finding that the decision to prosecute constituted “unnecessary or improper conduct” within the meaning of s.19 of the POA 1985 and Regulation 3 was irrational or unreasonable. Ground 2 contended that the award of costs in the sum of £587,382.76 was unreasonable.

Permission was refused on the papers by HHJ Stephen Davies (sitting as a High Court Judge) on 24 September 2025 and the HSE renewed its application, which came before Deputy High Court Judge Ridge for hearing on 26 November 2025.

THE APPLICATION TO RELY ON THE SENIOR CORONER’S FINDINGS

Prior to the hearing, the HSE made an application to rely on two sentences from the written Determinations, Findings and Conclusion of HM Senior Coroner Devonish dated 1 October 2025, made after the costs order and following the inquest into the deaths of the three workers. The passage in question concerned the way in which the AP had introduced himself during a site visit on 2 June 2017. The Coroner found that the AP had introduced himself as a “Site Inspector”. The HSE contended that the Coroner’s findings were relevant and admissible for the sole purpose of the Administrative Court considering whether it was reasonably open to the Judge to conclude that the HSE had acted as no reasonable prosecutor could when assessing the conflicting evidence in relation to that meeting. The application was refused on the basis that its admission would serve no useful purpose. The Administrative Court accepted Falcon’s submission that the passage, being limited to the manner in which the AP introduced himself at a single site meeting, did not materially assist in the bigger picture as to the question of whether that person was in fact the AP, and that the Coroner had found that he was.

Ground 1: irrationality

In refusing permission on Ground 1, the Administrative Court noted that the HSE accepted that the Judge had applied the correct legal principles in assessing the costs application, had set them out in his ruling, and had plainly kept them at the forefront of his mind. Those principles confirmed that the threshold under s.19 of the POA 1985 and Regulation 3 is one of impropriety rather than mere unreasonableness; that the conduct in question must be starkly improper, such that no great investigation is necessary to establish it; and that successful applications will be restricted to exceptional cases.

The Administrative Court concluded that the Judge had carried out a careful, evaluative and holistic assessment of the evidence that was before the HSE at the time it made the decision to prosecute, together with the evidence which could and should have been obtained. It described the Judge’s analysis as thorough, methodical, logical, comprehensive, cogent and clearsighted. His reasoning led to a conclusion that the evidence inevitably pointed to the fact that any reasonable prosecutor would have concluded that the prosecution should not have been commenced and that the prosecution was flawed. The Judge’s conclusion was one that was open to him and was not arguably irrational on the facts of this case.

The Administrative Court rejected the contention that the Judge had misunderstood the law relating to the reverse burden of proof on the grounds that (a) the prosecution case had hinged on the allegation that Falcon had not formally appointed an AP and the lack of a proper system for making such an appointment was directly causative of the incident, (b)  in withdrawing its case, the HSE had itself acknowledged that the acceptance by its principal witness that he had been the AP meant that its central allegation that Falcon did not have an AP could not be maintained, and (c) on any proper reading of the Judge’s ruling it was apparent that the Judge was clearly aware of the reverse burden of proof. The simple fact remained that the HSE’s case was put on a narrow basis. In real terms the HSE had set itself the task of proving that its principal witness was not an AP.

The HSE’s contention that the Judge had impermissibly substituted his own conclusions on witness credibility for those of the HSE was also rejected on the basis that the Judge had been making that assessment in the exercise of his overall discretion. The Administrative Court further rejected the suggestion that the Judge had failed to give sufficient weight to the chilling effect that adverse costs orders might have on prosecutors, finding it was 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.

Ground 2: quantum

In refusing permission on Ground 2, the Administrative Court found that it had jurisdiction to review the quantum of a costs order made under Regulation 3, following the judgment of Fordham J in R (Exolum Pipeline System Ltd) v Crown Court at Great Grimsby [2023] EWHC 2811 (Admin). However, the quantum of costs payable was a judgment to be made by the Judge, and it was not arguable that the amount awarded was so irrational or unreasonable that no reasonable Judge could ever have come to the same award.

COMMENTS

This represents another significant development in this long-running case. The Administrative Court’s conclusions, both on the papers and following a renewal hearing, that neither Ground was even arguable amount to a robust affirmation of the Judge’s costs ruling.

The judgment underlines the difficulty of challenging on irrationality grounds a detailed ruling on costs where the Judge was aware of and set out the correct legal principles and undertook a detailed and holistic assessment of the available evidence.

The refusal of permission to rely on the Coroner’s findings also demonstrates the limited utility of seeking to rely on subsequent factual findings from one set of proceedings as evidence of irrationality in another.

More broadly, this case remains an important reminder of a prosecuting authority’s obligations when deciding whether or not to bring proceedings, and considering the basis on which any such proceedings are instigated. In cases where a prosecuting authority fails to pursue all reasonable lines of inquiry, examine documentary evidence critically, and assess whether the available evidence justifies a prosecution, to such a degree as to cross over the high threshold of starkly improper conduct, the courts have demonstrated that they are prepared to make and uphold costs orders under s.19 of the POA 1985 and Regulation 3.

Prashant Popat KC
Christopher Adams
8 April 2026

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