QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE MOSES
|DUDLEY MAGISTRATES COURT ex parte HOLLIS
|DUDLEY METROPOLITAN DISTRICT COUNCIL
|DUDLEY METROPOLITAN COUNCIL
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)
MR D MATHESON and MR J FINDLAY (Instructed by Dudley Metropolitan Borough Council, Dudley) appeared on behalf of the Respondent
Crown Copyright ©
MR JUSTICE MOSES:
This is the judgment of the court.
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)
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 ".
(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.
The Statutory Scheme
The nature of the criminal offence in s.82 (2)
The provisions as to Notice under s.82(6) and (7)
Proceedings brought to recover Expenses
" proceedings for an order under subsection (2) ".
Conclusions as to the Statutory Scheme
"properly incurred in the proceedings" .
" 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.
Part III of the Public Health Act, 1936
"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." .
"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"
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" .
Debate in the House of Lords
"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)
"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)
The Proceedings for Judicial review in the Case of Mrs Hollis.
" 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. "
"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. "
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.