England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)

		Royal Courts of Justice The Strand London Tuesday 23 October 2001

Tuesday 23 October 2001

1. LORD JUSTICE SEDLEY: The applicants, represented today with his usual persuasiveness by Mr Carter-Manning QC, were successful before justices in their application for a special hours certificate. In the event, at the hearing before the justices the application was unopposed. But that was because on the eve of the adjournment date set by the justices for a full contested hearing the objectors, Luminar Leisure Limited, withdrew. However, having incurred something like £9,000 of costs in anticipation of a full showdown, the applicants sought and obtained their costs against Luminar from the justices.

2. On an application by Luminar for judicial review, Collins J quashed the award of costs for want of jurisdiction in the justices to award them. His reason was that such an award was forbidden in the circumstances by the terms of section 193B of the Licensing Act 1964, subsection (1) of which provides:

"On the hearing of any application under this Act relating to licensed premises or a seamen's canteen, the licensing justices may make such order as they think just and reasonable for the payment of costs to the applicant by any person opposing the application or by the applicant to any such person."

3. This provision was inserted by amendment by way of the Licensing Act 1988.
4. By way of conclusion, at paragraph 28 of his judgment, Collins J said:

"One sees the arguments that can be deployed both ways, but I have to come back to the statutory language which, in my judgment, is clear and indicates that Parliament intended a very limited power which only applied if opposition was taken to the full extent by an attendance at the hearing. In that case, of course, costs could be awarded, not limited to cost incurred at the hearing, but also extending to the costs involved in preparing for the hearing to meet the opposition which was made."

5. On reading the papers I was disposed to refuse permission to appeal for reasons which I set out. But, on reflection, Mr Carter- Manning has persuaded me that it is arguable that the language of the statutory provision is not that clear. As a matter simply of grammar, it does not inexorably limit the award of costs to a person who appears at the hearing to oppose an application. The phrase "any person opposing the application" is at least grammatically capable of including somebody who has cast himself in the role of an opponent, even if he has at the last minute withdrawn. That is the argument in any event.
6. If that argument is right, then it would follow that the justices had power to make an award of costs. The submission that it is right may gain force from the general approach of the law to the award of costs upon the conclusion of judicial proceedings. That will be part of Mr Carter-Manning's argument. To establish that it is a correct reading, however, may not be enough. There is a real difference between the sort of situation with which Mr Carter-Manning says his clients were faced, namely a big player being as difficult as possible and compelling his clients to run up a far larger bill of costs than would have been justified by an unopposed application and then pulling out, leaving the applicants "holding the baby": that on the one hand, and on the other the situation in which local people, genuinely worried about the effect on their lives of a music and dancing licence, put in an objection to draw the attention of justices to the issue, but simply do not have the funds to risk on an opposed application and so do not appear. In principle, both classes will be caught and placed at risk by Mr Carter-Manning's construction. It may very well be that the court that decides this appeal will want to consider whether, if it is right that both classes fall in principle within the power, both should be treated the same, or whether some guidance should be given about the exercise of the undoubted discretion conferred by the subsection on justices when their jurisdiction to award costs is triggered. That, however, is a matter for the future. The fact that in theory decent and honourable people could suffer is not something which would necessarily block the construction of the subsection which is contended for.
7. I am therefore persuaded that Mr Carter-Manning has a case with a realistic prospect of success on construction. Indeed, I would also be disposed to say that, even if the odds were no more than even, the question of law has public ramifications which would tip the balance in favour of the grant of permission to appeal. And so permission to appeal will be granted.