England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEENS BENCH DIVISION
(Mr Jack Beatson QC: sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London WC2 Tuesday, 5th March 2002

Tuesday, 5th March 2002

1. LORD JUSTICE BUXTON: This is a renewed application for permission to appeal against the decision of Mr Jack Beatson QC, sitting as a Deputy High Court Judge in the Administrative Court. The date of the judgment is of some importance. What Mr Beatson did, no doubt helpfully, was to produce a judgment in draft which he then made available to the parties and subsequently handed down. I do not intend to go into the background and detail of this matter. It is all set out in Mr Beatson's judgment and is very familiar to the parties. I will concentrate on the issue that is discussed in this application.
2. The complaint is as to Mr Beatson's decision that Chorion should have part (not all) of the costs incumbent on having withdrawn their proceedings for judicial review. They withdrew them because the formulation of policy to which they objected was altered. They therefore considered that they had achieved what they required by virtue of their proceedings.
3. Put very broadly, Westminster say that Chorion should not have had their costs, or any part of their costs, of the proceedings because the complaint that they made originally about the form of the policy was misconceived and that, far from Westminster's alteration having changed things so that by virtue of the proceedings Chorion had achieved what they sought, the position that Chorion wished to establish was always inherent in the formulation of the policy.
4. So far as this part of the application is concerned, the situation that Chorion wished to guard against was the possibility that, should they apply for variations of a licence, they would be at hazard of having the terminal hour of the existing licence cut back. Although the matter is now concerned with Mr Beatson's decision about costs, it does involve consideration of his decision about the substance of the application, because Westminster argue that he was wrong in thinking that Chorion originally had cause for concern on this issue. Mr Beatson was well seized of the fact, argued before me, that in the Westminster policy document, extracts from which he sets out in paragraph 4 of his judgment, one has to look at the statement of the policy in paragraph 6.8 (which he cites) and 6.12 (which he does not actually cite) to see what the actual operation of the policy is going to be. But he also was well aware that, looking solely within the confines of the documents for the moment, one had to read those paragraphs, and more particularly 6.8, as interpreted by the interpretation section (which clearly is intended to be), paragraph 6.1.
5. Paragraph 6.1 says in terms:

"...any reference to a new licence includes variations of licences..."

6. Therefore, when one comes to paragraph 6.8, where there is said to be a policy presumption against granting new licenses for entertainment purposes, reading that in the context of 6.1, on the face of the document that prohibition includes applications for variation.
7. Westminster's argument before Mr Beatson was, as I understand it, twofold: firstly, that paragraph 6.8 could not be read in that way; and, secondly, and more particularly, that whatever paragraph 6.1 said it was not the practice of Westminster, and never had been such in fact, to apply restrictions in terms of finishing time to applications for variations of existing licences. That was its contention in its reply to the application for judicial review that it filed on 22nd December 2000, settled by leading counsel eminent in this field. In paragraph 11, headed "Respondent's principal submissions in reply", paragraph (4) reads:

"The Applicant has misunderstood how the New Policies will be applied to `variations'. The policies will only apply to applications for variation that extend the operation of licensed premises (whether by increased hours, capacity or otherwise in a way that might adversely affect residential amenity)."

8. In paragraph 51, where the construction of the policy is dealt with, the document addresses itself solely, as far as I can see, to paragraph 6.1. Paragraph 50 sets out paragraph 6.1, and 51 says:

"it is (or should have been) clear that the reference to `variations of licenses' in 6.1 is a reference only to variation that extend the occupation of the licenced premises." [italics in original]

9. It is, therefore, it is understandable why Mr Beatson addressed paragraph 6.1 in detail because that appears to have been the basis upon which the case was conducted. He took the view, and in my estimation he was entitled to take the view, that whatever Westminster might say about its actual policy, and whatever Westminster might say about the public law constraints that it considered would apply to any handling on its part of applications for variation, nonetheless it was not justifiable for a policy document of this sort to say something that in fact did not represent the intentions or actual policy of the administrative body concerned. Mr Beatson made that clear in paragraph 25 of his judgment.
10. It is now contended that he had everything wrong in terms of the policy, not merely in terms of what Westminster was actually doing, but also in terms of the construction of the document. Even on its face it did not, and indeed could not, mean what Chorion feared that it did mean. That argument is put forward in the grounds of appeal to the extent that it is said that Mr Beatson misunderstood the construction. He should have looked more closely at paragraph 6.8.
11. I, for my part, would agree that if paragraph 6.8 has inserted in it, as it has to have in the context of this document, the particular definition or explanation in paragraph 6.1, then (to put it at its lowest) it produces a somewhat uncertain answer because of the insertion of the words "particularly those of the proposed terminal hour beyond 1.00 a.m." to which counsel draws my attention. How, he says, is that reconcilable with any cutting back of licenses after variation in respect of time? But it is not good enough, in the context of this argument, for Westminster to demonstrate that the policy gives an uncertain implication. They have to say, as Mr Hines says today, that it was inconceivable on its face that paragraph 6.8 referred to variations.
12. I am afraid I cannot agree with that construction or with that approach, and in my judgement I see no prospect of the Court of Appeal agreeing with it. But in assessing Mr Beatson's costs decision, which is what we are concerned with, that matter in my judgement does not arise. The reason is this. I have tried, and failed, to find any way in which this point was in fact taken in the argument before Mr Beatson. Further, if we turn to the discussion after the handing down of the draft judgment that took place on 5th October, counsel then representing Westminster - who was not Mr Hines who is here this morning, nor either of the counsel who settled the response to the judicial review application, nor counsel who appeared at the trial - only then raised this point, and said:

"...I would only ask for the opportunity to address your Lordship at this stage on whether or not there should be argument on the meaning of sections 6.8 and 6.12 in the future. As your Lordship knows, I was not here on 20th September [that was the date of the hearing], but I understand that on that date there was not any argument, or any substantial argument, on the meaning of sections 6.8 and 6.12. My Lord, I would be happy merely to argue this morning why there should, at some future date, be argument on that question, or those questions, and that would therefore not take up the time this morning."

13. The judge said:

"Well, let me hear you because I have come to hand down the judgment and you are seeking to persuade me that I should not hand it down and that I should hear argument."

14. Counsel said:

"My Lord, I can deal with this swiftly because I do not propose to argue before your Lordship what the meaning of sections 6.8 and 6.12 are."

15. The matter then continued. Counsel was permitted by the judge to develop an argument which, as far as I can see and he seemed to admit, was not one that had been put before the judge, and was indeed a new departure. It was on that basis that he criticised the judge on page 4 for not coming to any conclusion in respect of paragraph 6.8.
16. Technically speaking, it was open to the judge, I suppose, to reopen the matter at that stage, since he had not actually perfected his judgment. But his intention was absolutely clear, to give the parties an opportunity to comment on a judgment within the framework of the argument that had been put before him. In the end he decided not to do that. He was entirely entitled so to do. Having reached that conclusion, it was, in my judgement, a matter for his discretion to decide what the proper costs order should be, on the basis of the case as it had been argued and decided by him. It was inappropriate then, and in my judgement it is in appropriate now, for other and different arguments criticising his basic finding to be deployed at this stage in an attempt to offset his costs order.
17. All that said, as I say, I am not persuaded that the judge in any event would have come to a different conclusion had he entertained or considered the argument that Mr Bromley-Martin wished to put before him. And, as I have already indicated, it does not persuade me either.
18. For all these reasons, therefore, I consider that it would not be appropriate for this case to proceed to the Court of Appeal. There is, in my judgement, no prospect of the court finding in favour of the arguments that Westminster wish to put forward. Pill LJ was right in the view that he took on paper, and I would not grant permission.
Order: Application refused.