Whilst the saga of “Mr Bates v The Post Office” and the controversy regarding the abuse of private prosecutions continues to reverberate, the recent decision of The King (on the application of Antony Bates) v Highbury Corner Magistrates’ Court (District Judge Brennan) [2025] EWHC 184 (Admin) provides further salutary lessons. In quashing a summons for private prosecution, the High Court (HC) has provided an insight into some of the potential pitfalls of instigating such prosecutions and several helpful practice points for prosecutors and defendants alike. 

Background

The summons was issued by Highbury Corner Magistrates’ Court against the former Chief Financial Officer (AB) of Hibu plc (Hibu), who had been in post between 2010 and 2014, on the application of a former shareholder in Hibu (JW). In 2013, Hibu went into administration due to financial difficulties. In 2014, schemes of arrangement for Hibu’s insolvency were approved in the HC Chancery Division. However, several shareholders, including the applicant in this case, were disgruntled by the insolvency and the losses suffered on their investment. 

JW had attempted to seek legal recourse against Hibu and its directors for many years, alleging that shareholders had been the victims of a high-value fraud. However, JW had been unable to secure funding for civil proceedings in the UK. An action was brought in the US but was struck out on jurisdictional grounds. It was JW’s position that he wished to commence a private prosecution as this was his only remaining option for redress. 

Summons

JW applied for a summons alleging “fraud and embezzlement”. The application was supported by a narrative document outlining the purported details of alleged financial irregularities at Hibu. The narrative did not set out any particulars of the alleged criminal offences and was not supported by evidence, other than extracts from publicly available financial reports. 

The application for a summons was considered at an ex parte hearing in May 2024 at the Magistrates’ Court. DJ Brennan heard the application and raised questions regarding any approaches made by JW to the Serious Fraud Office (SFO) and any civil proceedings in contemplation. JW confirmed that he had made a further approach to the SFO, but it stood by its original decision not to prosecute. JW also referred to the unsuccessful claim in the US and lack of funding to pursue civil proceedings in the UK. 

DJ Brennan issued the summons, stating that the allegation was that there had been a “billion pound fraud” against shareholders. DJ Brennan also noted that a motive in bringing the private prosecution was to then obtain litigation funding for civil proceedings. However, he found that this purpose was not so dominant as to render the criminal proceedings an abuse of process. He otherwise considered that the application complied with r. 7 Criminal Procedure Rule (CrimPR) and there was no compelling reason not to issue the summons. 

AB attended the Magistrates Court in response to the summons and asked to be heard on an application to set the summons aside. AB raised several factors indicating that there was no substance to JW’s allegations, including that the Chancery Division had approved Hibu’s restructuring schemes; the US proceedings had been dismissed; the SFO, FCA and Insolvency Service had all declined to investigate; the unlikelihood of the allegations that £1bn had been moved to mislead Hibu’s auditors; and the lack of any evidence. AB invited the court to either dismiss the summons or to list a further hearing to consider full argument on both sides. DJ Brennan acknowledged that AB had raised valid arguments but decided that they should be dealt with at the Crown Court, where the case would be sent for trial. 

Judicial review

AB judicially reviewed the decision to issue the summons and the sending of the case to Crown Court for trial. The Magistrates’ Court did not make submissions. In the interim period, JW (as an interested party) also indicated that he would not contest the judicial review. Nevertheless, the High Court stated that it was appropriate to provide a reasoned judgment so that the parties could understand the basis on which the summons was to be quashed and also to assist in any subsequent determination of costs. 

The HC found that the application for a summons was vexatious and an abuse of process for the following reasons.

1. Lack of evidence: the application did not provide any proper basis for the criminal allegations. The alleged financial irregularities were not supported by substantive evidence. Extracts from financial reports were taken out of context and could be easily explained by AB with reference to the Hubi’s full audited accounts. JW accepted that he had not performed any proper analysis or collated evidence before making the application for a summons as he had thought that the proper time to present evidence would be in the Crown Court. The allegations made were not based on any evidential analysis but were unsubstantiated assertions.
2. Duty of candour: JW failed to disclose all material information to the Magistrates’ Court and some of the information that he did rely upon was misleading. In particular, JW did not disclose that the restructuring of Hibu had been approved by the Chancery Division, despite the restructuring being closely linked to the allegations of fraud. In relation to the US proceedings, JW suggested that supportive evidence had been placed before the US court and that the US court had decided the matter should be dealt with in the UK. JW also did not inform the Magistrates’ Court that AB and other defendants to the US claim had provided full explanations in their defence and had obtained and relied upon the expert opinion of a former President of the UK Supreme Court that undermined JW’s claims.
3. Procedural Failures: the application did not comply with the requirements of the CrimPR, particularly given that it did not contain coherent particulars of the alleged offences and a proper outline of the grounds for asserting that AB had committed the alleged offences.

The HC found that DJ Brennan’s decision to issue the summons was wrong. For the reasons above, the application did not comply with r. 7 CrimPR. The issuing of the summons was not a step that the Magistrates’ Court could rationally have taken on the information before it. At the very least, there was no good reason to issue the summons ex parte. AB should have been given notice and allowed to make representations before the application was decided. 

The HC also found that DJ Brennan should have exercised his discretion to set aside the summons. DJ Brennan had accepted that AB had raised valid arguments but thought that they would be more properly dealt with in the Crown Court. However, that was not appropriate. The only rational response to the submissions raised by AB in response to the summons should have been to set it aside. 

Practice points 

The HC’s judgment provides several key takeaways to bear in mind when considering a private prosecution.

1. Evidential basis: private prosecutors must ensure that their claims are supported by substantiated and admissible evidence and that the evidence is available at the time the application for a summons is made. 
2. Duty of candour: when making an ex parte application, private prosecutors must approach the application with their “defence hat” on and ensure they comply with their duty to disclose all relevant material to the court, including any information that may undermine their case. This may include previous investigations and court decisions related to the allegations.
3. Compliance with CrimPR: an application must comply with the CrimPR, including clear and coherent particulars of the alleged offences and a proper outline of the grounds for the allegations.
4. Motivations for prosecution: while seeking justice and financial restitution are valid motivations, private prosecutors must ensure that their primary aim is to address genuine criminal conduct. Cases that are primarily pursued to exert pressure for a commercial resolution or to obtain evidence are inappropriate and bound to fail. There has been a wider trend in recent years of private prosecutions failing on the basis that the prosecutor’s primary aim was to threaten a defendant to gain an advantage in civil litigation or encourage settlement, for example in the case of Morjaria, in which the Administrative Court noted: “The fact that there was and is prima facie evidence of fraud […] cannot legitimise criminal proceedings when their purpose was to threaten.”  The court will carefully scrutinise and consider the motivations behind the prosecution to ensure that it is not an abuse of process.

Bates, R (On the Application Of) v Highbury Corner Magistrates' Court [2025] EWHC 184 (Admin) (31 January 2025)