England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBCOF 97/0075/D

COURT OF APPEAL (CIVIL DIVISION )

CROWN OFFICE LIST

(MR JUSTICE OGNALL

Royal Courts of Justice

The Strand

London

Wednesday 30 April 1997

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND

(Lord Bingham of Cornhill )

LORD JUSTICE MILLETT

and

LORD JUSTICE POTTER

B E T W E E N:

THE QUEEN

and

NORTH WEST SUFFOLK (MILDENHALL) MAGISTRATES' COURT

Appellant

Ex parte FOREST HEATH DISTRICT COUNCIL

Respondent

_______________

(Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4A 2HD

Telephone 0171 831 3183

Official Shorthand Writers to the Court)

_______________

MR DAVID ELVIN (instructed by The Treasury Solicitor) appeared on

behalf of THE APPELLANT

MR GEOFFREY STEPHENSON (instructed by David Burnip, Director of Law

and Administration, Mildenhall, Suffolk) appeared on behalf of

THE RESPONDENT

_______________

J U D G M E N T

(As Approved by the Court )

_______________

THE LORD CHIEF JUSTICE: This is an unusual appeal. The appellant is the North West Suffolk (Mildenhall) Magistrates' Court. It appeals against an order of mandamus directed to it and made by Ognall J on 19 July 1996. The magistrates' court had refused to state a case for the opinion of the High Court on the application of the Forest Heath District Council, a party aggrieved by a decision of the magistrates' court in proceedings before it on the ground that the application was frivolous within the meaning of section 111(5) of the Magistrates' Courts Act 1980. The District Council had accordingly applied for an order of mandamus under section 111(6) of the Act, requiring the magistrates' court to state a case. Ognall J, rejecting the magistrates' court's opinion that the application was frivolous, granted the order of mandamus against which the magistrates' court now appeals.

The proceedings in the magistrates' court involved a Mr Stuart Nunn on one side and the District Council on the other. Mr Nunn was the owner or occupier of land at Hayland Drove, West Row, Bury St Edmunds, Suffolk. He used the land for a motorcycle racing track which was also used for training. The activity involved the driving of motor cycles around the track which had certain raised sections. The local authority was the authority responsible under the Environmental Protection Act 1990 for enforcing the provisions of that Act. Under section 79(1) of the Act it was the duty of the District Council to inspect its area in order to detect any statutory nuisance with which it ought to deal. Noise emitted from premises so as to be prejudicial to health or a nuisance may constitute a statutory nuisance by virtue of section 79(1)(g) of the 1990 Act. Complaints were made to the local authority concerning noise emanating from the Motocross activities carried on at Mr Nunn's track. The District Council accordingly served an abatement notice on Mr Nunn under section 80 of the Act. The notice was also served on his wife, but it is now accepted that she has no responsibility in this matter and I shall make no further reference to her.

The abatement notice required Mr Nunn to abate the nuisance and prohibit any recurrence. In a schedule the notice set out detailed requirements with which Mr Nunn was called upon to comply. Section 80(3) of the Act gave Mr Nunn a right to appeal against the notice to a magistrates' court. Mr Nunn exercised that right. A summons was accordingly issued by the magistrates' court to the District Council, giving notice of Mr Nunn's appeal and the grounds therefor. There followed a hearing before three justices in the magistrates' court on 9, 10 and 24 November 1995. Mr Nunn, as complainant, opened the hearing. He called an expert noise consultant in support of his contention that the noise was not a nuisance. He called three local residents; he gave evidence himself; and he called an adviser. The District Council also called evidence in support of its case. It called four local residents; an environmental health officer, who took readings and considered the noise a nuisance; a noise consultant, who also took readings; and a planning officer.

On 24 November 1995, at the end of the evidence and submissions, the justices upheld Mr Nunn's complaint, quashed the abatement notice and ordered the District Council to pay his costs. It seems clear that the District Council was surprised and disappointed by this decision, considering then as it considers now that it had a strong case.

Under paragraph 1(3) of Schedule 3 of the Environmental Protection Act 1990 the District Council had the right to appeal against the justices' decision to the Crown Court but it appears, perhaps unfortunately, that the Council was unaware of that right. Instead, the District Council at once applied, on 24 November 1995, to the magistrates' court to state a case for the opinion of the High Court under section 111(1) of the Magistrates' Courts Act 1980. But that application was superseded by a further and more elaborate application made on 1 December 1995, and that has been treated as the effective application.

The application set out seven questions which the justices were asked to pose for the opinion of the High Court at the end of the case which they were asked to state. Some of those questions have, in the course of the proceedings, fallen by the wayside, and I recite the terms only of the questions which remain relevant. They are these:

"1. Should we have considered the question of nuisance in relation to the specific complainants John A Tapster, Barbara Ashworth, Pamela Liddiard and Margaret Plested and in relation to the interference with their use and enjoyment of their properties?

....

4. Were we correct in deciding that if there were existing sources of noise in the locality then the addition of the specific noise emanating from the Motocross activity could not constitute a nuisance in law, either generally or in relation to specific occupiers of specific premises?

5. Were we correct in rejecting the evidence of the Defendant's expert on the basis that he gave a general assessment of the noise climate in the locality and gave no evidence of specific noise levels at specific places on specific days, notwithstanding that the said specific findings which supported his said evidence were unchallenged?

....

7. Whether there was any evidence upon which a reasonable bench of Magistrates could have concluded that the activities of the Complainant Stuart Nunn .... did not constitute a statutory nuisance?"

With reference to question 7, the District Council in a covering letter drew attention to the decision of the Divisional Court in Bracegirdle v Oxley and Cobley [1947] KB 349.

On 15 December 1995 the justices refused to state a case, expressing the opinion that the application was frivolous. The District Council then applied for leave to move for judicial review. Form 86A set out the grounds upon which the Council contended that the magistrates' court had erred in law. Leave to move was granted on paper by Turner J. For the purposes of the substantive hearing before the Divisional Court, the Chairman of the justices, on behalf of herself and her colleagues, swore an affidavit. I refer to such parts of that affidavit as remain relevant:

"....

10. In the application dated 1st December 1995 Forest Heath District Council asked the Justices to state a case for the opinion of the High Court on various questions of law. It is our view that of the seven questions posed only one of them is a question of law and that the remaining six are questions of fact.

11. In our opinion the one question of law was question 6 which asks if we were correct in deciding that the burden of proof in this matter lay upon the Defendant authority. We made no such decision. On the contrary, since we were dealing with a complaint by Mr and Mrs Nunn for an order we were in no doubt that it was for them to prove their complaint on a balance of probabilities if they were to succeed. During the hearing there were no arguments put forward by either side as to where the burden of proof lay. Our final pronouncement was as follows: 'on a balance of probabilities there has been no statutory nuisance'. This plainly shows that we have 'decided' that the burden of proof lay upon the Appellants, not the Defendant authority, and that the Appellants had discharged this burden to the required standard of proof. We were therefore not prepared to state a case on this question as there had clearly been no error of law.

12. The remaining questions were, in our opinion, questions of fact and it is our view that the proper remedy for Forest Heath District Council should have been to pursue an appeal to the Crown Court on the facts, following the judgment of Collins J in Suffolk (Northern) Youth Court, ex parte M (unreported judgment dated 21st June 1995....)

....

14. In Form 86A Mr Stephenson [counsel for the District Council] makes specific and highly selective observations on the evidence. With respect to him he puts the Appellants' evidence at its lowest and Forest Heath District Council's evidence at its highest. As the tribunal of fact we considered all the evidence put before us before making our objective decision.

15. In the first question we were asked whether we should have considered the question of nuisance in relation to the four specific complainants called by the Defendant authority separate and apart from any other evidence of nuisance, or lack of it, in the general locality.

16. During the hearing we heard conflicting expert evidence as to whether the noise was indeed prejudicial to health or constituted a nuisance. In addition both the Appellants and the Defendant authority called lay witnesses to support their assertions.

17. We decided that we could not find that no statutory nuisance existed merely because one lay witness gave evidence that their use and enjoyment of their property was not adversely affected by the activities of the Motocross in the same way that we could not find that there was a statutory nuisance merely because another lay witness, a neighbour to the above, gave evidence that their use and enjoyment of their property was so affected.

18. We therefore decided that we could only make our decision on whether or not a statutory nuisance existed after considering all the evidence from both parties.

....

21. So far as questions 4 and 5 are concerned these are, in our opinion, quite obviously questions of fact and not law and deal specifically with conflicting expert evidence received from both sides. Put simply, the expert for the Appellants stated, inter alia, that in his opinion there was no statutory nuisance whereas the expert for the Defendant authority stated, inter alia, that it was his opinion that there was a statutory nuisance. Each was cross-examined at length and we found that the expert for the Appellants was more credible in both his examination-in-chief and his cross- examination than the Defendant authority's. As previously stated in this affidavit, if Forest Heath District Council were not happy with our decision on the facts then their proper remedy was to appeal to the Crown Court.

22. Question 7 is quite clearly answered in the above paragraph. There was ample evidence before us on which we, as a reasonable tribunal having properly directed ourselves, were entitled to conclude that the activities of the Appellants did not constitute a statutory nuisance.

23. We therefore believe that our decision to refuse to state a case was correct and we respectfully ask the Honourable Court to uphold it."

At the substantive hearing before Ognall J, the magistrates' court was not represented. Counsel for the District Council criticised the affidavit of the Chairman and the test of frivolity which the justices had applied. The judge accepted these submissions. At page 2G of the transcript of his judgment he accepted as the test of frivolity the definition propounded by Lush J in Norman v Mathews (1916) 85 LJ KB 857 at 859:

"It must appear that his alleged cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the Court."

Ognall J then reviewed, briefly, the effect of the evidence called on each side at the trial and referred to the affidavit of the Chairman. At page 6A of the transcript of his judgment he indicated his acceptance of two submissions made on behalf of the District Council. The first of these was that, upon a proper reading of the affidavit, the magistrates clearly did not weigh the totality of the "lay evidence" in reaching their conclusions. The judge observed:

"Although it is correct that in paragraph 18 there is a reference to 'all the evidence', which the magistrates say they considered, the effect of the rest of the affidavit, in my judgment, is to indicate that the magistrates focused exclusively on the expert evidence."

Then at page 6D the judge accepted Mr Stephenson's submission that

"although the affidavit indicates that the bench addressed themselves to the rival expressions of opinion by the noise expert called on behalf of the appellants (Mr and Mrs Nunn) and by the council,"

nowhere did he find any indication that they addressed, or reached the decision, on the effect of the other expert evidence placed before them. He made plain that, by the "other expert evidence" he referred to the evidence of the planning officer and the environmental health officer called as part of the District Council's case.

On page 7 of the transcript of his judgment, the judge referred to Mr Stephenson's two essential arguments. The first of these was that in the light of the apparent omission to give full consideration to all the evidence, the ultimate decision of the justices was, as counsel submitted, demonstrated to be perverse because if the magistrates failed to give account to significant portions of the evidence adduced before them, it logically and fairly followed that their reasoning process was flawed by perversity. The judge observed that, whether or not that submission was well founded, it was unnecessary to resolve since it seemed to him that Mr Stephenson's second argument was correct beyond doubt: that if the magistrates had failed to address a significant body of evidence which he had identified in his judgment and to give any account to its effect on the ultimate determination, then plainly they had neglected to discharge their proper duty as a bench, which raised an obvious matter of law. The learned judge then indicated that the only questions which remained germane were those originally numbered 1, 4, 5 and 7. The judge then amended by elaborating somewhat the terms of what had been question 5, renumbered the questions, and made an order of mandamus requiring the magistrates' court to state a case for the opinion of the High Court on the four remaining questions.

There are four grounds of appeal against Ognall J's conclusion. First, it is said that he applied the wrong test to the justices' decision. It is said that he asked himself whether the justices were wrong to form the opinion that the application was frivolous and it was is that, since the application was for judicial review, he should have asked whether any reasonable bench of justices properly directed could reasonably have considered the application to be frivolous. For my part, I am by no means satisfied that the judge did apply the wrong test. But it is also plain to me that he would have reached the same conclusion whichever test he had applied. There is in my judgment no force in this ground of appeal.

The second ground is that Ognall J was wrong to accept Lush J's definition of the expression 'frivolous'. We were invited to prefer the meaning given to that expression by Macpherson of Cluny J in R v Betting Licensing Committee Cardiff Petty Sessions, ex parte Les Croupiers Casino Limited (13.4.92, unreported), where the judge defined the expression to mean that there was no possible prospect of a case succeeding because there was no substance in the request that a case should be stated.

Our attention was also drawn to R v Lowestoft Magistrates, ex parte Adamson [1996] COD 276, in which Macpherson of Cluny J said of the word 'frivolous' that

"It meant that the matter did not brook of any substantial argument, or [whether] it was so clear that the matter should not be investigated."

For the District Council Mr Stephenson drew our attention to R v Southwark Crown Court, ex parte Brooke [1997] COD 81, in which Simon Brown LJ is recorded as observing that if there was an arguable case for acceding to an application, then the application was not frivolous.

I think it very unfortunate that the expression 'frivolous' ever entered the lexicon of procedural jargon. To the man or woman in the street 'frivolous' is suggestive of light-heartedness or a propensity to humour and these are not qualities associated with most appellants or prospective appellants. What the expression means in this context is, in my view, that the court considers the application to be futile, misconceived, hopeless or academic. That is not a conclusion to which justices to whom an application to state a case is made will often or lightly come. It is not a conclusion to which they can properly come simply because they consider their decision to be right or immune from challenge. Still less is it a conclusion to which they can properly come out of a desire to obstruct a challenge to their decision or out of misplaced amour propre. But there are cases in which justices can properly form an opinion that an application as frivolous. Where they do, it will be very helpful to indicate, however briefly, why they form that opinion. A blunt and unexplained refusal, as in this case, may well leave an applicant entirely uncertain as to why the justices regard an application futile, misconceived, hopeless or academic. Such uncertainty is liable to lead to unnecessary litigation and expenditure on costs.

It is convenient to turn at this point to the fourth ground of appeal, which is that Ognall J was wrong to decide the case on the basis that the magistrates' court's affidavit evidence set out the process of reasoning which had led the justices to allow the appeal against the noise abatement notice when the affidavit did no such thing, nor did it purport to do so. In my judgment this is a fair criticism. The Chairman's affidavit contained the justices' explanation of why they considered the application frivolous. It touched on the questions posed by the District Council to the extent necessary to show why those questions were irrelevant, inappropriate or academic. The affidavit did not purport to contain the justices' reasoned decision and cannot be fairly criticised as if it did. This line of criticism has, indeed, led to error. For example, the Chairman has been criticised because in paragraph 21 of her affidavit she referred to "the expert for the appellants". That, the District Council submits, shows that she was overlooking the two other experts called by the District Council and hence was failing to pay attention to the full weight of evidence which the District Council had called.

It is, however, plain that the Chairman was expressly dealing with questions 4 and 5 posed by the District Council in the original request, and question 5 made reference to "the defendant's expert". In any event, it is quite plain, as the Chairman emphasised more than once, that the justices considered all the evidence in the case and there is no reason to suspect that they did not.

The main ground of appeal is ground 3: that Ognall J's conclusion that the magistrates' court had failed to consider all of the evidence which had been called at the hearing of the appeal against the noise abatement notice issued by the District Council was wrong, in particular given the magistrates' court's affidavit evidence that they had considered all of the evidence which had been called at the said hearing. The substantial point which is made on behalf of the magistrates' court is that the decision which was reached in this case was one of fact. There was evidence on both sides which was in conflict. The justices were called upon to resolve that conflict and did so. It is said that if the District Council considered that a wrong decision of fact had been reached, then the appropriate mode of challenge was by appeal to the Crown Court. That, of course, involves a re-hearing, the calling of evidence and a full opportunity for the District Council to press for a correct decision on the facts. But it is submitted for the magistrates' court that it is entirely inappropriate to dress up questions of fact as questions of law and then ask futile questions. As an example, the magistrates' court draws attention to questions 1, 2 and 3: "Should we have considered X? Were we correct to decide Y", when the justices contend that they had considered X and had not decided Y. Therefore, it is submitted that the questions which are posed are simply questions which do not arise.

The last of the questions, it is submitted, is plainly inappropriate where there is a conflict of evidence, some in favour of the conclusion that there was a statutory nuisance by noise and some the other way. It is argued that the Divisional Court cannot be called upon to decide issues of fact where there is a genuine conflict and evidence both ways.

In supporting the decision of the judge, Mr Stephenson submits that questions 1, 2 and 3 in the renumbered questions are questions properly asked, but he essentially pins his colours to the last of the questions, which was formerly question 7 and now question 4. In submitting that that is an appropriate question to be raised by way of case stated, he relies heavily on the Divisional Court decision in Bracegirdle v Oxley and Cobley [1947] KB 349. The facts proved or admitted in those cases pointed inescapably to the conclusion that the drivers had driven dangerously. But the justices, in defiance of Divisional Court authority, concluded that the driving was not dangerous. That prompted Lord Goddard CJ, having related the facts proved or admitted, to observe:

"It is said that this court is bound by the findings of fact set out in the cases by the magistrates. It is true that this court does not sit as a general court of appeal against magistrates' decisions in the same way as quarter sessions. In this court we only sit to review the magistrates' decisions on points of law, being bound by the facts which they have found, provided always that there is evidence on which they could come to the conclusions of fact at which they have arrived. Mr Parker, who has intervened in this case as amicus curiae to enable the court to have the benefit of a full argument on each side, concedes that if magistrates come to a decision to which no reasonable bench of magistrates, applying their minds to proper considerations and giving themselves proper directions, could come, then this court can interfere, because the position is exactly the same as if the magistrates had come to a decision of fact without evidence to support it. Sometimes it has been said of the verdict of a jury given in those circumstances, that it is perverse, and I should have no hesitation in applying that term to the decisions of magistrates which are arrived at without evidence to support them."

I respectfully agree with those observations. It is obviously perverse and an error of law to make a finding of fact for which there is no evidential foundation. It is also perverse to say that black is white, which is essentially what the justices did in Bracegirdle v Oxley and Cobley . But it is not perverse, even if it may be mistaken, to prefer the evidence of A to that of B where they are in conflict. That gives rise, in the absence of special and unusual circumstances (absent here), to no error of law challengeable by case stated in the High Court. It gives rise to an error of fact properly to be pursued in the Crown Court.

In my opinion the argument advanced on behalf of the magistrates' court on this appeal is correct. I would allow the appeal and quash the order of mandamus. I regard this outcome as unfortunate because the justices may well, for all we know, have been wrong to take the view which they did of the evidence. The judge, with his great experience, may well have suspected such an error. He no doubt regarded it as unsatisfactory that, as he was mistakenly told, no redress was open to the District Council otherwise than by case stated or judicial review. I should also have regarded it as unsatisfactory. Had he appreciated that the District Council could have obtained a re-hearing on the merits in the Crown Court, I very much doubt whether he would have made the order he did. But as it is the result I have indicated must in my judgment follow.

LORD JUSTICE MILLETT: I agree. The first three questions which the judge has directed the magistrates to state for the consideration of the Divisional Court each ask whether they were correct in adopting a particular approach to the evidence. Since none of the questions reflected an approach which the magistrates had actually adopted, they were academic. The magistrates were in my opinion plainly entitled to decline to state them since it would serve no useful purpose to answer them.

The fourth question was whether there was any evidence upon which a reasonable bench of magistrates could have reached the conclusion which they did. There plainly was such evidence. The respondent's real complaint was that such evidence was outweighed by a preponderance of evidence to the contrary. That was not the view of the magistrates who considered the conflicting evidence and preferred that of the respondent to that of the appellant. They may or may not have been right in this, but if they were wrong they did not commit an error of law. In Bracegirdle v Oxley [1947] KB 349, at 358, Denning J drew attention to the distinction between the primary facts, which are always for the tribunal of fact, and secondary conclusions from the facts. He said that the court will only interfere if the conclusion is one which cannot reasonably be drawn from the primary facts. In that case the primary facts were undisputed. In the present case they were disputed and the respondent's real complaint is that the magistrates resolved the dispute in favour of the appellants.

Where the questions which they are asked to state are academic or inappropriate or raise issues which are irrelevant to their decision, then in my view an application for a case to be stated can properly be described by the magistrates as "frivolous". I agree that the appeal should be allowed.

LORD JUSTICE POTTER: I agree with both judgments.

ORDER: Appeal allowed with costs.

____________________________________