ON APPEAL FROM ADMINISTRATIVE COURT
HIS HONOUR JUDGE MACKIE QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
SIR DAVID KEENE
| THE QUEEN
-on the application of-
(trading as Orleans)
|- and -
|(1) HIGHBURY CORNER MAGISTRATES COURT (2) THE LONDON BOROUGH OF ISLINGTON
Mr Nigel Giffin QC and Mr Gary Grant (instructed by London Borough of Islington) for the Respondent
Hearing dates : 9th March 2011
Crown Copyright ©
Lord Justice Etherton :
The factual background
The legal framework
"All matters relating to the discharge by a licensing authority of its licensing functions are, by virtue of this subsection, referred to its licensing committee and, accordingly, that committee must discharge those functions on behalf of the authority."
"(1) A licensing committee may arrange for the discharge of any functions exercisable by it --
(a) by a sub-committee established by it, or
(b) subject to subsection (4), by an officer of the licensing authority.
(2) Where arrangements are made under subsection (1)(a), then, subject to subsections (4) and (5), the sub-committee may in turn arrange for the discharge of the function concerned by an officer of the licensing authority
(3) Arrangements under subsection (1) or (2) may provide for more than one sub-committee or officer to discharge the same function concurrently."
"If [the representations] are made by an interested party (who is not also a responsible authority) they are not, in the opinion of the relevant licensing authority, frivolous or vexatious."
"(15) Nothing in this section applies in relation to any function under the Licensing Act 2003 of a licensing authority (within the meaning of that Act)."
"(1) Subject to any express provision contained in this Act or any Act passed after this Act, a local authority may arrange for the discharge of any of their functions —
(a) by a committee, a sub-committee or an officer of the authority…
(2) Where by virtue of this section any functions of a local authority may be discharged by a committee of theirs, then, unless the local authority otherwise direct, the committee may arrange for the discharge of any of those functions by a sub-committee or an officer of the authority and where by virtue of this section any functions of a local authority are discharged by a sub-committee of the authority, then, unless the local authority or the committee otherwise direct, the sub-committee may arrange for the discharge of any of their functions by an officer of the authority."
"Where an Act which (or any provision of which) does not come into force immediately on its passing confers power to make subordinate legislation, or to make appointments, give notices, prescribe forms or do any other thing for the purposes of the Act, then, unless the contrary intention appears, the power may be exercised, and any instrument made thereunder may be made so as to come into force, at any time after the passing of the Act so far as may be necessary or expedient for the purpose:
(a) of bringing the Act or any provision of the Act into force; or
(b) of giving full effect to the Act or any such provision at or after the time when it comes into force."
The appellant's complaint
"(1) On the conclusion of full judicial review proceedings in a defendant's favour, the nature and purpose of the particular claim is relevant to the exercise of the judge's discretion as to costs. In contrast to a judicial review claim brought wholly or mainly for commercial or proprietary reasons, a claim brought partly or wholly in the public interest, albeit unsuccessful, may properly result in a restricted or no order for costs.
(2) If awarding costs against the claimant, the judge should consider whether they are to include preparation costs in addition to acknowledgment costs. It will be for the defendant to justify these. There may be no sufficient reason why such costs, if incurred, should be recoverable.
(3) It is highly desirable that these questions should be dealt with by the trial judge and left to the costs judge only in relation to the reasonableness of individual items.
(4) If at the conclusion of such proceedings the judge makes an undifferentiated order for costs in a defendant's favour
(a) the order has to be regarded as including any reasonably incurred preparation costs; but
(b) Practice Statement (Judicial Review: Costs)  1 WLR 1760 should be read so as to exclude any costs of opposing the grant of permission in open court, which should be dealt with on the Mount Cook Ltd principles  2 P&CR 405."
"27. For our purposes, the important rule is in principle (2) [of Sedley LJ's statement in  of Davey], that when "preparation" costs are sought in addition to "acknowledgment" costs (those I apprehend being the costs of settling the short form acknowledgment) it will be for the defendant to justify those costs, which may well not be recoverable."
"29… In future, and in accordance with principle (3) of the Sedley-Clarke principles, it will be important that the permission judge, who is far better placed than anyone else to decide what needed reasonably to be said in response to a claim, should himself apply the Davey approach to claims for "acknowledgment" and "preparation" costs: bearing in mind what has already been said about giving fair weight to the work necessary before even a short form acknowledgment can be confidently settled."
"3.1 Licensing Sub-Committees are established under the Licensing Act 2003 to exercise all licensing functions as defined by the Act and all licensing functions under the Gambling Act 2005 and any other related matters which may lawfully be delegated to it.
3.2 The Licensing Committee will appoint a number of Sub-Committees to determine applications for licences in respect of licensed premises, entertainments, licences required under the Gambling Act 2005 and late night refreshment premises."
Sir David Keene
Lord Justice Longmore: