England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		Date Tuesday, 25th November 1997

MR JUSTICE MOSES:

This is the judgment of the court.

Introduction

1. These appeals raise an important point as to the construction of Section 82(12) of the Environmental Protection Act 1990. The issue is whether a person, typically a tenant, who is aggrieved by a statutory nuisance has a right to costs in proceedings he brings to abate the nuisance, even if, in the opinion of the Magistrates Court, it was unreasonable and unnecessary to bring those proceedings for that purpose. In other words, is Section 82(12) mandatory, or do the Magistrates retain a power to disallow costs because they are of the view that the proceedings should not have been brought?
2. In these appeals the Magistrates disallowed all the costs of two tenants who had made complaints against Dudley Metropolitan Borough Council ("the Council") that their premises were in such a state as to be prejudicial to their health or a nuisance. They did so on the grounds that in each case the Council, once it had received notice of the defects, had acted positively and promptly. In both cases the Council had stated that the work would take longer than the twenty-one day period specified in the notice . In the case of Mrs Hollis proceedings were brought by complaint after materials had been delivered to the site. In Mr. Probert's case, a summons was issued one month from the date of the first complaint. In both cases, therefore, the Court took the view that the tenants had failed to give the Council a proper opportunity to complete the necessary work and that the work would have been undertaken, even if the proceedings had not been brought.
3. We need not set the facts out in any further detail, a full chronology and the relevant parts of the Cases Stated, and the questions asked, are annexed to this judgement. We take this course because the answer to the questions depends entirely upon the proper construction of Section 82(12). If the Magistrates had power to refuse costs on the grounds that the proceedings should not have been instituted, their view of the facts cannot successfully be impugned. The question is, do they have such power ?
4. We should also mention at this stage, that Mrs. Hollis seeks a judicial review of the decision of the Magistrates to adjourn her case to allow the Council to complete the necessary work. These proceedings give rise to a discrete issue as to the power of magistrates to adjourn for such a purpose. We shall deal with that issue after we have considered the question of statutory construction.

Statutory Provisions

5. The relevant sections in Part III of the Environmental Protection Act 1990 are as follows.

79 Statutory nuisances and inspections therefore

(1) Subject to subsections (2) to (6) below, the following matters constitute "statutory nuisances" for the purposes of this Part, that is to say :-

(a) any premises in such a state as to be prejudicial to health or a nuisance;

.....................

and it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with under section 80 below and, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint.

80 Summary proceedings for statutory nuisances

(1) Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice ("an abatement notice") imposing all or any of the following requirements:-

(a) requiring the abatement of the nuisance of prohibiting or restricting its

occurrence or recurrence;

(b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes,

and the notice shall specify the time or times within which the requirements of the notice are to be complied with.

82 Summary proceedings by persons aggrieved by statutory nuisances

(1) A Magistrates' court may act under this section on a complaint made by any person on the ground that he is aggrieved by the existence of a statutory nuisance.

(2) If the magistrates' court is satisfied that the alleged nuisance exists, or that although abated it is likely to recur on the same premises, the court shall make an order for either or both of the following purposes:-

(a) requiring the defendant to abate the nuisance, within a time specified in the order, and to execute any works necessary for that purpose;

(b) prohibiting a recurrence of the nuisance, and requiring the defendant, within a time specified in the order, to execute any works necessary to prevent the recurrence;

and may also impose on the defendant a fine not exceeding level 5 on the standard scale.

..............

(4) Proceedings for an order under subsection (2) above shall be brought:-

(a) except in a case falling within paragraph (b) or (c) below, against the person responsible for the nuisance;

(b) where the nuisance arises from any defect of a structural character, against the owner of the premises;

(c) where the person responsible for the nuisance cannot be found, against the owner or occupier of the premises.

..............

(6) Before instituting proceedings for an order under subsection (2) above against any person, the person aggrieved by the nuisance shall give to that person such notice in writing of his intention to bring the proceedings as is applicable to proceedings in respect f a nuisance of that description and the notice shall specify the matter complained of.

(7) The notice of the bringing of proceedings in respect of a statutory nuisance required by subsection (6) above which is applicable is:-

(a) in the case of a nuisance falling within paragraph (g) of section 79(1) above, not less than three days' notice; and

(b) in the case of a nuisance of any other description, not less than twenty- one days' notice;

but the Secretary of State may, by order, provide that this subsection shall have effect as if such period a is specified in the order were the minimum period of notice applicable to any description of statutory nuisance specified in the order.

(12) Where on the hearing of proceedings for an order under subsection (2) above it is proved that the alleged nuisance existed at the date of the making of the complaint, then, whether or not at the date of the hearing it still exists or is likely to recur, the court shall order the defendant (or defendants in such proportions as appears fair and reasonable) to pay to the person bringing the proceedings such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.

The wording of Section 82(12)

6. The starting point must be the wording of this subsection. The words

"shall order..."

connote an obligation. The Council's case does not, thus, have a promising start. But Mr. Matheson Q.C., on behalf of the Council, rests his case on the expression :-

" properly incurred...in the proceedings ".

7. He contends that the insertion of the adverb permits the court to disallow not merely excessive costs, but also all the costs where the proceedings need not have been brought at all. We are of the view that had Parliament intended to confer a power on Magistrates to disallow costs of bringing the proceedings it would have said so. It would not have been difficult to discover an appropriate source for words designed to confer a general discretion as to whether the costs of bringing proceedings should be awarded. Our attention was drawn to the Prosecution of Offences Act 1985 by Mr. Straker Q.C., on behalf of the Appellants. Section 16 provides :-

Defence costs

(1) Where:-

(a) an information laid before a justice of the peace for any area, charging any person with an offence, is not proceeded with;

that court or, in a case falling within paragraph (a) above, a magistrates' court for that area, may make an order in favour of the accused for a payment to be made out of central funds in respect of his costs (a "defendant's costs order").

.............

(6) A defendant's costs order shall, subject to the following provisions of the section,

be for the payment out of central funds, to the person in whose favour the order is made, of such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.

8. Those provisions confer a general discretion as to whether to award costs. If a decision is made to do so, then such costs can be disallowed if they have been incurred unnecessarily. We do not think that the fact that Parliament chose to use the word "shall" can be explained as merely a statutory nudge in favour of the complainant. Its use powerfully suggests that a right to costs has been conferred, subject only to questions of amount.
9. But that is only the starting point. We must consider the wording in its statutory context.

The Statutory Scheme

The nature of the criminal offence in s.82 (2)

10. Section 82(2) creates a criminal offence in circumstances where a statutory nuisance exists at the time of the hearing or where, although abated, it is likely to recur. ( see Botross v Hammersmith and Fulham L.B.C. 93 LGR 268 and R v Liverpool Crown Court, ex parte Cooke [1997] 1 W.L.R. 700 at 703 D-E). Even if a statutory nuisance existed up to the day before the hearing, no offence has been committed, so long as the statutory nuisance is not likely to recur. Consequently, the court has no power to make any of the orders specified in that sub-section, and , importantly, has no power to make an order of compensation pursuant to Section 35 of the Powers of Criminal Courts Act 1973. The only circumstances which the court can take action are where section 82(12) applies and an order can be made under that subsection. But such an order can only be made if the statutory nuisance existed at the date of the making of the complaint. Thus, even though a statutory nuisance has occurred and has persisted up to the time the written notice under Section 82(6) is sent, the court has no power to make any order, even an order as to costs. The offence is, therefore not typical of a criminal offence, which will normally be committed by the action or omission of a defendant on a date prior to the hearing before the court. However lax the conduct of those responsible for the nuisance, as identified under Section 82(4), however great the justification for the aggrieved person issuing the notice, those responsible will escape not only criminal liability but also a liability for costs, provided that they abate the nuisance in a way which will prevent its recurrence before the notice has expired. A person aggrieved by a statutory nuisance is likely to incur substantial expenditure when he takes steps to have the nuisance from which he is suffering abated. He may well have to retain an expert in order to specify his complaint in the statutory notice under S.82(6). At that stage he cannot know whether the work will have been completed by the time of the hearing, partly because he will not know the date when the hearing is to take place. Nor will he know whether or when any assurances as to the work to be undertaken will be honoured. It must be recalled that the defendant to Section 82 proceedings may be a private landlord and not a local authority, accustomed to keeping its promises. Yet if the work is completed by the time the period of notice expires he will recover nothing, not even his costs.

The provisions as to Notice under s.82(6) and (7)

11. The only requirement imposed upon an aggrieved person who wishes to issue a complaint pursuant to Section 82(1) is to give written notice of an intention to bring proceedings which must specify the matter complained of (sub-section 6) and to give a minimum period of notice of twenty-one days(subsection 7). He is, thus, under no obligation to heed requests for a longer period within which to undertake work or to wait, after the expiry of twenty-one days to see whether any promises are honoured, before issuing a complaint. Parliament cannot have envisaged that, where a statutory nuisance exists, such work as is necessary to abate the nuisance will be undertaken in so short a period, save in an exceptional case.
12. It is instructive to compare the provisions relating to notice in Section 82(6) and (7) with those in Section 80. That Section is concerned only with proceedings brought by a local authority for failure to comply with an abatement notice served by the authority. In such a case it is for the local authority to specify the period within which the requirements of the notice shall be complied with (Section 80(1)). The person served with such a notice may appeal against the notice to the magistrates'court (subsection 3). The magistrates may extend the time within which the notice shall be complied with if it is not reasonably sufficient (Statutory Nuisance (Appeals) Regulations 1995 (S.I. 1995/2644)). No such power of appeal exists under Section 82. However, under Section 80 the offence is committed once there has been a failure, without reasonable excuse, to comply with the abatement notice, even if the requirements of such a notice have been complied with at the time of the hearing (subsection 4).
13. Where Parliament has conferred a power on a person aggrieved by a statutory nuisance to bring proceedings, it imposed no requirement that the notice should give sufficient time for the nuisance to be abated and provided no mechanism by which the period of notice could be challenged. Comparison with the provisions of Section 80 demonstrates that this was no accident.

Proceedings brought to recover Expenses

14. Moreover, Parliament specifically contemplated proceedings being brought at which the only issue is whether the statutory nuisance existed at the date of making the complaint, in other words in circumstances where it is plain that the nuisance has been abated at the time of the hearing and is not likely to recur. The only forum in which the statutory pre-condition for an award of costs can be proved, namely that the alleged nuisance existed at the date of the making of the complaint, is on the hearing of proceedings identified in subsection 12 as :-

" proceedings for an order under subsection (2) ".

15. Parliament so provided, in the context of provisions which, as we have observed, required only a minimum period of notice and allowed of no opportunity to dispute whether the length of notice was reasonable.
16. The statutory scheme is, therefore that an aggrieved person may bring proceedings immediately after a short period of notice has expired for the sole purpose of recovering expenses.

Conclusions as to the Statutory Scheme

17. Mr. Matheson Q.C. on behalf of the Council, argued that since costs can only be recovered by making a complaint and instituting proceedings, Parliament cannot have intended to impose an obligation to award costs. Such an obligation would, it is said, provide a powerful, but unjust, incentive to launch unnecessary proceedings by making a complaint, for example before a reasonable time has elapsed in which to abate the nuisance. A complaint could be made one day after the minimum period of notice had elapsed at a time when work had started and, possibly just before it finished. Moreover, he says, one who deliberately obstructs work being carried out would still have a right to costs. To launch proceedings in either of these circumstances would, he said, be improper and the costs incurred could be disallowed by the Magistrates on the grounds that they were not :-

"properly incurred in the proceedings" .

18. Mr Matheson Q.C. also drew attention to the report to the Department of the Environment by the Legal Research Institute of the University Of Warwick in 1995. We question the admissibility of this document in appeals by Case Stated. But we were prepared to consider its contents as expressing argument adopted by the Council in these cases. We appreciate the concern of Councils as to the drain on resources caused by s.82 proceedings being brought, faced as they are by the conflicting demands imposed by deteriorating housing stock and by solicitors, who it is said, target estates and inflate costs. We think that the report presents a substantial argument as to why Parliament should not have conferred a right to costs, but it does not assist on the proper construction of the statute. After all, it is based on the premise that Parliament did so provide. If reference to the report was merely designed to excite our sympathy for Councils struggling to make do with limited resources,it succeeded.
19. We do not accept Mr. Matheson's submissions. An obstructive tenant may be forced to permit work to take place by civil proceedings. He runs the risk, in cases other than those of structural defects, of losing his case on the grounds that the defendant was not responsible for the nuisance but that he was, pursuant to S.82(4)(a).
20. We take the view that the Council's submissions fail to give sufficient weight to the very nature of the statutory scheme provided. Parliament having afforded an opportunity to an aggrieved person to bring proceedings as soon as the brief notice period has expired cannot be supposed to have allowed, at the same time, that advantage to be removed , at the discretion of the magistrates, on the grounds that that opportunity should not have been seized by the complainant.
21. It is by no means unreasonable , still less absurd to think that Parliament conferred a right to costs on someone aggrieved by the nuisance, where it persists up to the time of the complaint. Such a right balances the risk of no recovery, if, despite having suffered from a nuisance at the time notice is given, the nuisance is abated before the complaint is made. If the nuisance is abated at the time of making the complaint then he will not recover his costs, however reasonably they may have been incurred in giving notice and identifying the defects which constitute the statutory nuisance. But if the nuisance persists at the time the complaint is made he has an assurance that he will recover those expenses. Such an approach provides a powerful incentive to a landlord, who may not be a local authority, to avoid a statutory nuisance occurring at all.
22. Mr. Matheson Q.C. sought to counter that argument by contending that the wording of subsection 12:-

" expenses...incurred...in the proceedings ",

limited the compensation to expenses incurred in preparation for the hearing and at the hearing. Thus, costs incurred in, for example, giving notice and providing a description of the defects which constitute the statutory nuisance in accordance with Section 82(6), frequently, as in these cases, by means of experts' reports, are irrecoverable even if they result in a complaint and the proof of an offence. It is inconsistent with the scheme of Section 82 and the wording of subsection 12 so to limit the expenses. It is illogical that the costs incurred in establishing the necessary pre-condition for the recovery of expenses, namely that the nuisance existed at the time of the complaint, should be irrecoverable, whilst allowing costs in the period which followed the making of the complaint.

23. The proceedings contemplated in subsection 12 are not only proceedings in which it is alleged the statutory nuisance existed or was likely to recur as at the date of the hearing, but also proceedings where it is accepted that the nuisance has been abated but where it is sought to prove that the nuisance existed at the date of the making of the complaint, for the purpose of seeking compensation for expenses. The expenses incurred in such proceedings, once the ambit of those proceedings is properly understood, include those expenses which have been incurred for the purpose of proving the statutory pre-condition. Such expenses will include the cost of proving the existence of a statutory nuisance and the costs of compliance with the statutory requirements which must be fulfilled before a complaint is made.

Part III of the Public Health Act, 1936

24. In support of his submission that Parliament cannot have intended to confer a right to costs, whatever the circumstances in which the proceedings are instituted, Mr. Matheson Q.C. relied upon Sandwell B.C.v Bujok [1990] 1 WLR 1350 in which Lord Griffiths warned that tenants may have their costs disallowed if they brought proceedings before allowing a reasonable time for defects to be repaired. The House of Lords was concerned with Section 99 of the Public Health Act, 1936. That section provided :-

"Complaint of the existence of a statutory nuisance under this Act may be made to a justice of the peace by any person aggrieved by the nuisance, and thereupon the like proceedings shall be had, with the like incidents and consequences as to the making of orders, penalties for disobedience of orders and otherwise, as in the case of a complaint by the local authority, but any order made in such proceedings may, if the court after giving the local authority an opportunity of being heard thinks fit, direct the authority to abate the nuisance." .

25. The House of Lords rejected the contention that, by virtue of the reference to "like consequences", the right to costs conferred upon a local authority by section 94(3), was also conferred on an aggrieved person. Lord Griffiths said :-

"The costs of proceedings under section 99 will therefore be in the discretion of the justices. If a tenant has given notice to a local authority of defects in his premises and has allowed a reasonable time for them to be repaired before commencing proceedings, it will of course lie within the justices' discretion to award costs to the tenant if by the time of the hearing the work has been carried out. If the proper conclusion is that it was only the threat of proceedings that jolted the landlord into action, the award of costs to the tenant will clearly be justified. If, on the other hand, no notice of the defects is given before the commencement of proceedings and the justices are of the view that if notice had been given the work would have been carried out without the necessity of recourse to proceedings, I would not expect them to exercise their discretion to award costs to the tenant. ....... In future I hope that those advising tenants will realise that they will not automatically be entitled to the costs of section 99 proceedings and of the advisability of giving proper notice to the landlord before commencing proceedings"

26. These minatory dicta are, of course, of no relevance if section 82(12) is mandatory. They provide no assistance in determining how that section is to be construed. The case is, however, of considerable assistance when Section 82(12) is compared with Section 94 of the Public Health Act, 1936 which applied to local authorities. Section 94(1) provided :-

If the person on whom an abatement notice has been served makes default in complying with any of the requirements of the notice, or if the nuisance, although abated since the service of the notice, is, in the opinion of the local authority, likely to recur on the same premises, the authority shall cause a complaint to be made to a justice of the peace, and the justice shall thereupon issue a summons requiring the person on whom the notice was served to appear before a court of summary jurisdiction.

Section 94(2) was in similar terms to Section 82(2) of the 1990 Act. Section 94(3) provided :-

" Where on the hearing of a complaint under this section it is proved that the alleged nuisance existed at the date of the service of the abatement notice and that at the date of the making of the complaint it either still existed or was likely to recur, then, whether or not at the date of the hearing it still exists or is likely to recur, the court shall order the defendant to pay to the local authority such reasonable sum as the court may determine in respect of the expenses incurred by the authority in, or in connection with, the making of the complaint and the proceedings before the court" .

27. We note that the House of Lords accepted that that subsection imposed an obligation to award costs in favour of a local authority. The only material difference in wording between that subsection and Section 82(12) is the inclusion of the words " properly" and " in connection with ". We do not think that the addition of the adverb " properly" bears the weight for which the Council contends. As we have already stated,the words " expenses properly incurred ...in the proceedings" mean no more than expenses which are necessary and permits the court to disallow expenses which it considers need not have been incurred. The absence of the words " in connection with " in S.82(12) do not, for the reasons we have given above, exclude costs incurred in connection with the making of the complaint.
28. Thus, we consider that Sandwell, far from lending support to the Council's case, provides considerable support for the submission that section 82(12), like Section 94(3) before it, confers a right to costs. Section 94, it should be observed, gave no minimum period for an abatement notice, and no right of appeal against any period which is specified. Both parties accept that Parliament must have had these provisions in mind when considering what became section 82 of the 1990 Act, and, indeed, Sandwell, which had been decided at first instance to similar effect before the Bill was laid before Parliament and which had been decided in the House of Lords before the Bill became law. We consider that Parliament took a decision to adopt the mandatory provisions which had previously only applied in relation to local authorities. It would be strange indeed if, mindful of the words of Lord Griffiths'speech which echoed the words of Tasker Watkins L.J., in this court ( 88 LGR 521 at 534), Parliament used words so close to those in s.94(3) if it intended to confer a power upon magistrates to disallow all the costs because the proceedings should never have been brought at all.

Debate in the House of Lords

29. We would have regarded these reasons as sufficient to compel the conclusion that s. 82(12) conferred a right to costs. The Applicants, however, have sought to rely upon statements of the Parliamentary Under-Secretary Baroness Blatch, promoting the Bill during its consideration by the House of Lords. The Council took no objection to our considering these statements, and, at the stage in the argument when it was sought to rely upon those statements, our views had not crystallized sufficiently to query whether there was such an ambiguity as to permit consideration of the Minister's observations. In response to a proposed amendment to carry over into the Bill provisions similar to s.94(3), she said :-

"We cannot support this amendment. In the context of action by local authorities we consider the mandatory costs provision must be regarded as archaic and obsolete. It is true that we have accepted the need for mandatory costs in the case of actions brought by private individuals under Clause 81 and we are bringing forward an amendment to Clause 81 accordingly. We have done that because of the implications of the Sandwell v. Bujok judgment and because the resources of people such as, for example, housing tenants who take action under Clause 81 may be limited. They could be put off taking action unless they are reasonably sure of being awarded costs." ( Hansard Vol.522 15th October 1990 Col 603)

30. We do not think that the fact that the Minister's qualification, " reasonably sure" meant anything more than a reference to the possibility that the magistrates might have to resolve an issue as to whether, in fact, there existed a statutory nuisance at the time the complaint was made.
31. These statements were made four days after the decision of the House of Lords was given. They are clear and provide substantial support for the view we have reached.

Previous Authority

32. Finally, we should mention the decision of this court in Davenport v.Walsall M.B.C. 28 H.L.R.504. In that case this court was concerned primarily with the refusal of the magistrates to make a compensation order after a plea of guilty. This court declined to interfere with that refusal. The magistrates had, however, refused to award costs of the adjourned hearing at which compensation had been sought. This court decided that the costs of that hearing were properly incurred. It was not, therefore, concerned with the issue before us, namely whether it is open to the magistrates to refuse costs if they are of the view that the proceedings should not have been brought in the first place. We derive comfort, however, from the wisdom of Keene J who observed:-

"Under section82(12)...the Justices are bound to make a costs order in favour of any complainant, once it is found that a statutory nuisance existed at the date of the making of the complaint. The only limit on that is that the award is to compensate the complainant only for expenses properly incurred. That would seem to be intended to ensure that the amount to be paid by a defendant is not increased by any improper act or omission on the part of a complainant or his professional representatives . " (page 768)

Conclusion

33. For these reasons we conclude that a magistrates' court is not entitled to refuse costs on the grounds that it considers it was unnecessary for the complainant to institute proceedings. It is bound to order costs provided that it is satisfied that the statutory nuisance existed at the time of the complaint. Its consideration is limited to questions as to whether particular items of expenditure were unnecessary and as to whether the amounts claimed are more than those warranted by the particular proceedings before them, such as the engagement of unduly expensive solicitors or counsel or an excessive number of experts. Accordingly we allow the appeals and answer all three questions in the negative. The only basis upon which the costs were disallowed was that it was unnecessary to bring proceedings, and accordingly no findings were made as to whether the amount claimed was excessive. We shall hear submissions as to whether, in those circumstances, it is appropriate to remit the cases back to the magistrates to hear argument on the amount claimed by the Appellants .

The Proceedings for Judicial review in the Case of Mrs Hollis.

34. The issue in these proceedings is whether it was lawful for the magistrates to adjourn proceedings brought by this applicant in order to allow the Council to complete its work to abate the nuisance. On 16th August 1996 a summons was sent to the Council for a hearing on 6th September. It was not received by the legal department until 5th September when an adjournment was requested but refused. At a hearing before the Dudley Magistrates on 6th September, at which no witnesses were present, the Respondent Council requested an adjournment of nine weeks to enable the council to complete repairs. The solicitor for Mrs Hollis, Mr.Geffen, requested that a plea be entered. He stated that this was for the purpose of compensation. The Chairman of the Justices records in her affidavit that the Council's legal representative stated :-

" If an adjournment was granted and a statutory nuisance remained outstanding at the next hearing....he would then plead guilty on behalf of the Defendant ". (Our emphasis).

The Magistrates granted an adjournment. Their reasons were as follows :-

"a. The Local Authority had started the work.

b. The occupant had not responded to a Local Authority request for permission to start.

c. The local authority had acted reasonably. They were first notified of the matter on 23rd May 1996.

d. The local authority had made their initial response within 21 days.

e. The Local authority had kept the prosecution informed of the position.

f. After a nine week adjournment the work would have been completed in fourteen weeks. "

35. We observe that the only reason for the adjournment was to give the Council the opportunity to abate the statutory nuisance. Although it was suggested that there might have been other reasons why an adjournment could have been granted, they were not the reasons why it was, in fact, granted. We also note that it was not disputed by the legal representative that a statutory nuisance existed at the time of the hearing; indeed, the very fact that it existed formed the basis of the request for the adjournment.
36. It is important to appreciate why it was that Mr. Geffen requested a plea to be entered. If a plea of guilty had been entered, the Court would have had power to award compensation under Section 35 of the Powers of Criminal Courts Act 1973.
37. The wide discretion as to whether to grant an adjournment conferred by S.10 and s.54 of the Magistrates Court Act 1980 cannot, usually, be impugned. But it is a power which must not be exercised in a manner which undermines the statute under which the proceedings are brought or in a way which deprives a litigant of rights conferred by that statute. An adjournment cannot be granted if the only purpose is to avoid the consequences which the law provides will follow, should the hearing continue. In R v. Walsall Justices, Ex p. W [1990] 1 W.L.R.253, this court quashed a decision of the justices to adjourn proceedings pending a change of the law which would have permitted uncorroborated unsworn evidence to be relied upon by the court. The court said:-

"Quite apart from rights vested in the defendant are the duties and responsibilities of the court. It is common ground that it would be unjudicial for a court ( as in Reg. V. Boteler 4 B&S 959 ) to refuse to apply the substantive law on the ground that the court regarded that law as unfair or wrong. "

38. As that court pointed out, a defendant has no unqualified right to a trial on the day fixed for the hearing. We agree with Mr. Matheson Q.C. that the case might have been adjourned without taking a plea for a number of reasons. However, in this case the only reason for not taking a plea and adjourning the case was to enable an existing statutory nuisance to be abated. We cannot conceive in the light of the acceptance that a statutory nuisance did exist at the date of that hearing, that the legal representative would, if an adjournment had been refused, have entered a plea of not guilty merely to take advantage of the absence of witnesses.
39. In our judgment the effect of granting the adjournment was to deprive the Applicant of the right to claim compensation, a right which had accrued because on that date it was accepted that a statutory nuisance existed. The magistrates error lay in failing to appreciate that that right, under the statutory scheme we have described above, arose despite the fact that they took the view that the local authority had acted reasonably, and , by implication that they considered that it was unnecessary to institute proceedings. The reasons they give are not capable, as a matter of law, of justifying the grant of an adjournment. The Applicant had a right to bring those proceedings, and if at the date of hearing there was no dispute that a statutory nuisance existed, the Magistrates had no power to adjourn the hearing without taking a plea when to do so would avoid the consequence of a conviction under section 82(2) and the right to compensation.
40. Mr. Matheson Q.C. argued that the point was academic now that the work had been completed and that, in those circumstances, we should not grant any relief. The Applicant , in our view, is entitled to a declaration in the terms of the amended Application. Such a declaration is not academic since it may form the basis of any claim she wishes to pursue with the Council for compensation. The right to compensation under section 35 of the 1973 Act following a conviction under s.82(2) of the 1990 Act is important; it may be the only way that a tenant can recover any compensation.
41. Accordingly, we shall grant the relief sought by Mrs. Hollis.

LORD JUSTICE SCHIEMANN: For the reasons set out in the judgment that has been handed down, the application for judicial review will be granted and a declaration made in terms of the amended application.

As far as the appeals by way of Case Stated are concerned, they will be allowed. The answers to the questions will be, 'no' to the first question, 'no' to the second question, and to the third, there was not sufficient evidence to permit the Court to find that all of the costs incurred by the Appellant were not properly incurred. As we indicated in the judgment, we are happy to hear you further on the subject of what we ought to do by way of Case Stated.

MR KOLVIN: I am standing in for Mr Straker this morning. I have had the opportunity of discussing the matter with Mr Straker and also with my learned friend, Mr Findlay, and we are of like minds that the matter of quantification of costs ought to be remitted to the Justices who will have local knowledge and be able to determine whether the costs were properly incurred.

LORD JUSTICE SCHIEMANN: The costs of that are worth it?

MR KOLVIN: My Lord, we also anticipate that it may not be necessary to take the matter that far in any event, because if a bill of costs is served, it may well fall by agreement.

LORD JUSTICE SCHIEMANN: One would hope so.

MR FINDLAY: My Lord, as I understand it, the issue came to one of principle before the Magistrates, so they have not actually considered the bill of costs.

LORD JUSTICE SCHIEMANN: That is true, but one does not know whether there is an issue on the point that remains.

MR FINDLAY: My Lord, there is not an issue, and if that is the case, the matter in fact need not go before the Court.

LORD JUSTICE SCHIEMANN: What is the position in relation to costs, are there any applications?

MR KOLVIN: My Lord, I have an application that the costs of all of the proceedings before your Lordships be paid by the Metropolitan Borough Council to my clients. I also have an application for Legal Aid Taxation.

MR FINDLAY: My Lords, I have difficulty in resisting that application for costs.

LORD JUSTICE SCHIEMANN: Very well.

MR FINDLAY: My Lord, I do have an application for your Lordships to state a point for the House of Lords for leave to appeal.

LORD JUSTICE SCHIEMANN: You have formulated it for us. Let us take it on board (pause). Do you have anything to say, Mr Kolvin? We are minded in principle to certify, do you have anything to say about the formulation of the question?

MR KOLVIN: My Lord, really nothing at all. If you are minded to certify that is the appropriate question.

LORD JUSTICE SCHIEMANN: Yes, it seems at first blush rather a mouthful, but I confess I do not have the energy to rephrase it. We will certify in the form you propose.

MR FINDLAY: I am obliged. As far as leave is concerned, I do have to ask your Lordships for leave.

LORD JUSTICE SCHIEMANN: I think it is for their Lordships to make their own decisions on that matter, we shall refuse leave. We refuse leave in relation to the Case Stated. You were not asking for leave in relation to judicial review?

MR FINDLAY: I see my instructing solicitor has just arrived, can I double check that?

LORD JUSTICE SCHIEMANN: Yes.

MR FINDLAY: It is only on the Case Stated.

LORD JUSTICE SCHIEMANN: That is refused, you will have to ask their Lordships. Appeals and applications allowed with costs, legal aid taxation and question certified. Thank you very much.