England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 December L999

1. MR JUSTICE NEWMAN: This is an application for relief by way of judicial review to quash a judgment of His Honour Judge Southan and justices given in the Harrow Crown Court on 29 June l998.
2. The proceedings were brought by UNIC Centre Sarl ("UNIC") pursuant to S.97 of the Trade Marks Act l994, being an appeal by an aggrieved person against an order for forfeiture made in the Brent Magistrates Court on l8 February l998. The London Borough of Brent & Harrow Trading Standards Service ("the Local Authority") had applied for and obtained an order in the Brent Magistrates Court for the forfeiture of 9,312 pairs of jeans, having an approximate value of £200,000, bearing the Levi Strauss trademark. UNIC is a company registered in France and it carries on a wholesale business from premises in Marseilles. There have been numerous proceedings, both criminal and civil, in France, in respect of this consignment of jeans, extending over nearly nine years.
3. This court is concerned with two judgments of the Tribunal de Grande Instance of Marseilles. In the first, Levi Strauss, the trademark proprietor, claimed against UNIC that the jeans infringed its trademark because they were not made by Levi Strauss. The action failed. In the second set of proceedings Levi Strauss obtained an ex parte order in the nature of a freezing injunction which enabled it to seize the jeans. The court set aside the order on a hearing between the parties on the ground that the issue was res judicata by reason of the previous judgment of the court. The jeans went into free circulation in France. UNIC entered into a contract of sale of the jeans to a company called Kilfol Limited, and the jeans were exported to England. The Local Authority was enlisted at the request of Levi Strauss and issued two informations dated 20 November l997 against Kilfol Ltd: (1) a summons alleging an offence contrary to S.92(1) of the Trademarks Act l994, and (2) a summons alleging an offence contrary to S.1(1)(6) of the Trade Descriptions Act l968. On the same day the Local Authority issued two complaints whereby it applied for forfeiture of the jeans. The complaints were made respectively by reference to the provisions of the Trademarks Act l994 and the Trade Descriptions Act l968.
4. The informations were not proceeded with because an understanding was reached between the Local Authority and Kilfol Limited, including agreement that Kilfol would not oppose an application for forfeiture, which the local authority intimated it intended to make.
5. The appeal commenced with the consideration of a preliminary point. It does not appear that the point was drafted. I infer from the judgment that its ambit evolved from the character of the argument before the court. The Crown Court confined itself to consideration of the question whether the Civil Jurisdiction and Judgments Act l982, which implemented the l968 Brussels Convention on the enforcement of judgments in civil and commercial matters, applied to the proceedings in the magistrates court. The judgment records that UNIC submitted that having regard to the judgments in the French courts, which had been registered in this jurisdiction, the magistrates court acting in the exercise of its civil jurisdiction, was not entitled to make an order for forfeiture of the jeans. The argument as to whether the jurisdiction under S.97 was civil or criminal was advanced for both sides by reference to the character of the proceedings before the magistrates. The judgment of the court, having recited the arguments advanced and the provisions which it had to consider, concluded:

"In our view once proceedings have been brought the order by the magistrates was an order which they were entitled to make within their powers under S.97(2)(a) and being made on application by the respondents in court on the basis that the agreement between the parties to the criminal proceedings, it was made within the criminal jurisdiction of the court. In view of our finding we do not need to go on to consider the many interesting questions which might have arisen under the Convention, but would have to go on to consider in the course of a rehearing the evidence on other issues which may be outstanding."

6. With respect, the agreement reached between the Local Authority and Kilfol was irrelevant to the issue, which has to be determined by reference to the l982 Act and the Convention.
7. Mr Alan Tyrrell, QC, who appears for UNIC in this court and who appeared below, asked the court to adjourn the hearing so that the judgment could be tested in the High Court.
8. Although Mr Tyrrell was minded to argue on this application that should the court be satisfied that within the meaning of the Convention the forfeiture proceedings in the Crown Court were civil, it should also rule as to what effect the French judgments should have in the proceedings in the Crown Court, he ultimately accepted in the face of the combined opposition of the court and Mr Mehigan, QC, that such a course was not open to him. The Crown Court decided only one point. If UNIC succeed in this application the matter must go back to the Crown Court for the Crown Court to consider, along with all the other material in the case, which the parties wish to place before the court, what effect the judgments have on the issues which the court must determine. If follows that the only question which arises on this application is whether the proceedings in the Crown Court are civil or not, within the meaning of the 1982 Act and the Convention.
9. The proceedings in the Crown Court
10. Section 97 of the Trademarks Act l994 provides as follows:

"97(1)In England and Wales or Northern Ireland where there has come into the possession of any person in connection with the investigation or prosecution of a relevant offence -

(a)goods which, or the packaging of which, bears a sign identical to or likely to be mistaken for a registered trademark,

(b)material bearing such a sign intended to be used for labelling or packaging goods, as a business paper in relation to goods, or advertising goods, or

(c)articles specifically designed or adapted for making copies of such a sign, that person may apply under this section for an order for the forfeiture of the goods, material or articles.

(2)Application under this section may be made -

(a)where proceedings have been brought in any court for a relevant offence relating some or all of the goods, material or articles, to that court;

(b)where no application for the forfeiture of goods, material or articles has been made under paragraph (a), by way of complaint to a magistrates court.

(3)On an application under this section the court shall make an order for the forfeiture of any goods, material or articles only if it is satisfied that a relevant offence has been committed in relation to the goods, material or articles.

(4)A court may infer for the purposes of this section that such an offence has been committed in relation to any goods, material or articles, if it is satisfied that such an offence has been committed in relation to goods, material or articles which are representative of them (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

(5)Any person aggrieved by an order made under this section by a magistrates court, or by a decision of such a court not to make such an order, may appeal against that order or decision -

(a)in England and Wales, to the Crown Court;

(b)in Northern Ireland, to the county court;....

(6)Subject to sub-section 7, where any goods, material or articles are forfeited under this section they shall be destroyed in accordance with such directions as the court may give.

(7)On making an order under this section the court may, if it considers it appropriate to do so, direct that the goods, material or articles to which the order relates shall (instead of being destroyed) be released, to such person as the court may specify, on condition that that person -

(a)causes the offending sign to be erased, removed or obliterated and,

(b)complies with any order to pay costs which may be made against him in the proceedings for the order for forfeiture.

(8)For the purposes of this section a "relevant offence" means an offence under S.92 above (unauthorised use of trademark, etc. in relation to goods) or under the Trade Descriptions Act l968 or any offence involving dishonesty or deception."

11. Thus S.97 entitles any person to apply for forfeiture where that person has come into the possession of goods in connection with the investigation or prosecution of a relevant offence. There does not have to have been a prosecution to conviction, nor even an existing prosecution. An investigation will be sufficient if combined with possession. The right to apply for forfeiture conferred by S.97 is obviously of particular value to the trading standards service of a local authority, for it will, in a variety of circumstances, be a person coming into possession of goods in the circumstances envisaged by the section. Important though the power may be to a local authority it is nevertheless capable of being exercised by any person, for example the registered trademark proprietor or the licensee of the trademark, so long as the qualifying circumstances set out by the section exist.
12. Sections l6, l7, l8 and l9 of the Trademarks Act l994 confer specific rights upon the proprietor of a registered trademark to apply to the court for similar relief. Section l9(1) provides:

"(1)Where infringing goods, material or articles have been delivered up in pursuance of an order under S.l6, an application may be made to the court -

(a)for an order that they may be destroyed or forfeited to such person as the court may think fit or

(b)for a decision that no such order should be made.

Sub-section (3) provides:

"(3)Provision shall be made by rules of court of the service of notice

of persons having an interest in the goods, material or articles, and any such person is entitled -

(a)to appear in proceedings for an order under this section, whether or not it was served with notice, and

(b)to appeal against any order made, whether or not he appeared; ..... "

It follows that relief by way of forfeiture can be obtained by a registered trademark proprietor or licensee, according to his choice, in proceedings commenced in the High Court, S.16-19, or in the magistrates court (S.97).

The l968 Brussels Convention, in company with other Conventions, was incorporated into English law by S.2 of the Civil Judgments and Jurisdiction Act l982. S.3 of the l982 Act provides:-

"3(1)Any question as to the meaning or effect of any provision of the conventions shall, if not referred to the European Court in accordance with the l97l Protocol, be determined in accordance with the principles laid down by and any relevant decision of, the European Court.

(2)Judicial notice shall be taken of any decision of or expression of opinion by, the European Court on any such question.

(3)Without prejudice to the generality of sub-section (1), the following reports (which are reproduced in the official journal of the Communities) namely -

(a)the report by Mr P Jenard on the 1968 Convention and the l971 Protocol; and

(b)the report by Professor Peter Schlosser on the Accession Convention,

may be considered in ascertaining the meaning or effect of any provision of the Convention and shall be given such weight as is appropriate in the circumstances."

13. In this case the meaning and effect of Article l of the Brussels Convention is in issue. Article l provides:

"This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters. The Convention shall not apply to ....... "

14. Under the heading "Recognition and Enforcement" the Convention provides:
15. "Article 25:For the purposes of this Convention, "judgment" means any judgment given by a court or tribunal of a contracting state, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.
16. RECOGNITION
17. Article 26:A judgment given in a contracting state shall be recognised in the other contracting states without any special procedure being required.
18. Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in sections 2 and 3 of this title, apply for a decision that the judgment be recognised.
19. Article 29:Under no circumstances may a foreign judgment be reviewed as to its substance."
20. The provisions of the Convention relating to civil and commercial matters extend so as to require, where necessary, consideration to be given to the character of the judgment in respect of which enforcement may be sought and to the character of the proceedings in which enforcement may be required. No issue arises in respect of the two judgments which, as I have stated, have been duly registered under the l982 Act. The issue arises as to whether Convention applies to the proceedings in the Crown Court. Case law exists in connection with the characterisation of judgments but no case has been brought to my attention where specific consideration has been given to the character of the proceedings in which enforcement is sought. The point, though drawn to my attention, can have no bearing on the approach, nor suggest differing approaches must be adopted, when interpreting the same words in the same Article.
21. Before I turn to consider the material which has been placed before me, which includes the reports specified in Section 3, sub-section 3 of the l982 Act, I should set out the hallmarks of proceedings by way of forfeiture under S.97 of the l994 Act. The scheme and purpose of the forfeiture provisions (including S.16-19) of the Trademarks Act is to prevent infringing articles entering into circulation in the market to the prejudice of the registered trademark proprietor and to the prejudice of traders and consumers, who may be induced to deal with the counterfeit items. It is common for there to be contractual complexity underlying the sale of goods in the market and as a result a number of persons may acquire an interest in the goods and a right to be heard before an order for forfeiture is made or, if made, upheld on appeal. Although for the magistrates to have jurisdiction under Section 97 the person in possession must be in possession for the purposes of prosecution or investigation into a relevant offence, the forfeiture order cannot be regarded as a penalty or an essential part of the prosecution of the criminal offence. The forfeiture process comprises a court procedure for working out the consequences of the commission of a criminal offence in connection with goods, having regard to the commercial and proprietary interests of persons who have entered into transactions in connection with the goods in question. Section 97 of the Act provides a means whereby persons can apply to the court to protect their private interests. Additionally, it avails local authorities in the conduct of their functions. Section 93 of the Trademarks Act l994 imposes a duty on every local weights and measures authority to enforce the provisions of S.92. In the discharge of that duty the authority will regularly come into the possession of infringing goods in the course of the investigation or prosecution of a relevant offence. But the local authority have a duty to prosecute, and do not have a duty to apply for forfeiture, although it is plainly a great convenience for them to be able to do so, in order to avoid being in possession of an enormous number of infringing objects.
22. Further, it must be said that a local authority has a public interest, which it can serve by making an application for forfeiture, namely the protection of many individuals who may be prejudiced should the infringing articles enter into the market. Although properly regarded as a public interest, it represents a right and power to act in the public interest by bringing proceedings to protect the collective body of private interests, too numerous and unidentified for it to be practical to envisage proceedings being taken by them. That said, the circumstances of possession are not unique to the local authority, and the form of relief by way of forfeiture has no specific public authority character.
23. European Law
24. Both sides drew my attention to the case of Eurocontrol l976 ECR 1541. Mr Mehigan QC in addition drew my attention to the case of Rüffer 1980 ECR 3807 and Bavaria Fluggesellschaft Schwabe & Co. KG and another v Eurocontrol 1977 ECR 1517. In the 1976 Eurocontrol judgment, a German company, LTU Lufttransportunternehmen GmbH & Co. KG, asserted that charges claimed by Eurocontrol, namely the European Organisation for the Safety of Air Navigation, in respect of which an order for payment had been obtained in the Belgian courts, were charges claimed by public law. The Belgian court declared that it had jurisdiction on the ground that the payment of the charges in the dispute arose out of an activity of the defendant which was deemed to be commercial and it ordered LTU to pay the sum plus interest. Eurocontrol sought to enforce the judgment through the Dusseldorf court and the European Court of Justice was requested to give a preliminary ruling on the question "whether in the interpretation of the concept 'civil and commercial matters' within the meaning of the first paragraph of Article l of the Convention .... the law to be applied is the law of the state in which judgment was given, in this instance Belgium, or the law of the state in which the order for enforcement is to be issued." The judgment in its material part states as follows:

"As Article l serves to indicate the area of application of the Convention it is necessary, in order to ensure, as far as possible, that the rights and obligations which derive from it for the contracting states and the persons to whom it applies are equal and uniform, that the terms of that provision should not be interpreted as a mere reference to the internal law of one or other of the states concerned.

By providing that the Convention shall apply 'whatever the nature of the court or tribunal' Article l shows that the concept 'civil and commercial matters' cannot be interpreted solely in the light of the division of jurisdiction between the various types of courts existing in certain states.

The concept in question must therefore be regarded as independent and must be interpreted by reference, first, to the objectives and scheme of the Convention and, secondly, to the general principles which stem from the corpus of the national legal systems.

If the interpretation of the concept is approached in this way, in particular for the purpose of applying the provisions of Title III of the Convention, certain types of judicial decision must be regarded as excluded form the area of application of the Convention, either by reason of the legal relationships between the parties to the action or of the subject matter of the action.

Although certain judgments given in actions between a public authority and a person governed by private law may fall within the area of application of the Convention, this is not so where the public authority acts in the exercise of its powers.

Such is the case in a dispute which, like that between the parties to the main action, concerns the recovery of charges payable by a person governed by private law to a national or international body governed by public law for the use of equipment and services provided by such body, in particular where such use is obligatory and exclusive.

This applies in particular where the rate of charges, the methods of calculation and the procedures for collection are fixed unilaterally in relation to the users, as is the position in the present case, where the body in question unilaterally fixed the place of performance of the obligation at its registered office and selected the national courts with jurisdiction to adjudicate upon the performance of the obligation."

25. The court therefore concluded that having regard to these criteria the judgment given in the action was excluded from the area of application of the Convention.
26. Netherlands State v Reinhold Rüffer
27. In the above case a vessel belonging to Reinhold Rüffer collided with another vessel in the Bight of Watum and sank. According to the terms of a treaty between the Kingdom of the Netherlands and the Federal Republic of Germany, it was provided that the Netherlands should be responsible for the administration of the waterways in the Bight of Watum, which involved the removal of wrecks. The Netherlands State removed the wreck. After selling the wreck there remained a balance of florins which the Dutch State claimed. The court held that the concept of "civil and commercial" matters within the meaning of the first paragraph of Article l of the Convention did not include actions brought by the agent responsible for administering public waterways against the person having liability in law to recover the costs incurred in the removal of a wreck carried out by, or at the instigation of, the administering agent in the exercise of its public authority. The court placed no weight upon the distinction relied upon, namely that the recovery was sought in the civil courts and not in some form of administrative process. The court concluded that the claim was outside the application of the Convention. The second Eurocontrol case was brought to my attention as confirming the jurisprudence of the first, and it was in fact relied upon in Rüffer as an accurate statement of the jurisprudence in the European Court.
28. The Reports of Mr Jenard and Professor Schlosser
29. Counsel observed that the reports and the cases reflect consideration of the character of a judgment for the purposes of the Convention where enforcement is concerned as opposed to the character of the proceedings in which enforcement may be claimed. The observation is apt, but has no bearing, in my judgment, upon the approach the court must adopt, which must be identical whichever aspect of the Convention is under consideration. Mr Jenard points out in his report:

"The Committee did not specify what is meant by civil and commercial matters, nor did it point to a solution of the problem of classification by determining the law according to which that expression should be interpreted."

30. He goes on to state:

" ... it follows from the text of the Convention that civil and commercial matters are to be classified as such according to their nature, irrespective of the character of the court or tribunal which is seized of the proceedings or which has given judgment. This emerges from Article l, which provides that the Convention shall apply to civil and commercial matters 'whatever the nature of the court or tribunal'. The Convention also applies irrespective of whether the proceedings are contentious or non-contentious. ... The Convention covers civil proceedings brought before criminal courts, both as regards decisions relating to the jurisdiction and also as regards the recognition and enforcement of judgments given by criminal courts in such proceedings."

31. A little later in the report, Mr Jenard observes:

"The convention also applies to civil or commercial matters brought before administrative tribunals".

32. Mr Jenard sets out in his report a formula adopted by a committee to the Convention which was as follows:

"The expression 'civil or commercial matters' is very wide and does not include only those matters which fall within the jurisdiction of civil tribunals and commercial tribunals in countries where administrative tribunals also exist. Otherwise there would be a wholly unjustifiable inequality between contracting states: service abroad of judicial instruments could take place on a wider scale of countries which do not have administrative tribunals than for countries which have them. In brief, the Convention is applicable from the moment when private interests become involved."

33. It is pointed out by Mr Jenard that the ideal solution would certainly have been to apply the Convention to all civil and commercial matters. However problems relating to the conflict of laws in respect of property rights gave rise to difficulties in that regard. He states:

"The solution adopted implies that all litigation and all judgments relating to contractual or non-contractual obligations which do not involve the status or legal capacity of natural persons, wills or succession, rights in property arising out of a matrimonial relationship, bankruptcy or social security, must fall within the scope of the Convention, and that in this respect the Convention should be interpreted as widely as possible."

34. Professor Schlosser
35. The report of Professor Schlosser in l978 was given to mark the accession of the Kingdom of Denmark, Ireland and the United Kingdom and Northern Ireland to the Convention. In paragraph 23 of his report the Professor states:

"The distinction between civil and commercial matters on the one hand and matters of public law on the other is well recognised in the legal systems of the original member states and is, in spite of some important differences, on the whole arrived at on the basis of similar criteria. Thus the term 'civil law' also includes certain important special subjects which are not public law, especially, for example, parts of labour law. For this reason the draughtsmen of the original text of the l968 Convention, and the Jenard Report, did not include a definition of civil and commercial matters and merely stated that the l968 Convention also applies to decisions of criminal and administrative tribunals, provided they are given in a civil or commercial matter, which occasionally happens. In this last respect, the accession of three new member states presents no additional problems, but as regards the main distinction referred to earlier, considerable difficulties arise."

36. The Professor here had in mind the fact that in the United Kingdom and Ireland the distinction commonly made in the original member states between private and public law was hardly known. Under the heading "Civil and criminal law" in paragraph 29 the Professor stated as follows:

"The Working Party considered it obvious that criminal proceedings and criminal judgments of all kinds are excluded from the scope of the l968 Convention, and that this matter needed, therefore, no clarification in the revised text (see paragraph l7). This applies not only to criminal proceedings stricto sensu. Other proceedings imposing sanctions for breaches of orders or prohibitions intended to safeguard the public interest also fall outside the scope of civil law. Certain difficulties may arise in some cases in classifying private penalties known to some legal systems, like contractual penalty clauses, penalties imposed by associations, etc. Since in many legal systems criminal proceedings may be brought by a private plaintiff, a distinction cannot be made by reference to the party which instituted the proceedings. The decisive factor is whether the penalty is for the benefit of the private plaintiff or some other private individual. Thus the decisions of the Danish industrial courts imposing fines, which are for the benefit of the plaintiff or some other aggrieved party, certainly fall within the scope of the l968 Convention."

37. The Argument
38. Mr Mehigan QC for the Local Authority submitted that the proceedings in the Crown Court were either (a) administrative or (b) criminal and were therefore outside the scope of the Convention. As to the administrative character of the proceedings he submitted that they were taken by a public authority acting in the exercise of its public authority powers and, on the basis of the jurisprudence in Europe to which I have referred, the answer was clear. As to the criminal character of the proceedings, having regard to the requirement that there be the investigation or prosecution of a relevant offence, and the requirement that there can only be a forfeiture order made if the court is satisfied that the relevant offence has been committed, it should be concluded that they are criminal proceedings. Additionally, he prays in aid, the observation made by the editors of the Current Law Statutes that Section 97 represents the criminal counterpart to the civil powers conferred under Sections l6-20 of the Trademarks Act. He also argues that the action has been taken by the Local Authority in support of the public interest to prevent counterfeit articles entering into the market.
39. In my judgment the cases of Rüffer and Eurocontrol do not support the argument he advances. Those cases involve actions taken by public authorities, which were peculiarly the power of the public authority to take by virtue of their status as a public authority and in respect of matters governed by their public authority duties. Although a local authority is bound to prosecute, or has a duty to prosecute, it does not have a duty to bring forfeiture proceedings, nor does it have any exclusive status in bringing such proceedings. The relief it obtains enures to the benefit of the private interests of individuals. In my judgment the proceedings are predominantly concerned with private interests. Further, relief is granted according to the proper determination of private interests. Professor Schlosser gives by way of example the fines in the industrial court in Belgium as comprising a pointer to the character of the proceedings. Having considered the principles laid down by relevant decisions of the European Court and the reports of Mr Jenard and Professor Schlosser I am satisfied that the Crown Court proceedings are civil and not criminal or administrative.
40. I was treated to a limited survey of what the position might be under domestic law and such perusal was, insofar as it is a national law forming part of the corpus of national laws in the European Union, permissible. Suffice it to say that by closely similar reasoning to the above, I am satisfied that had the matter required a decision under domestic law, the proceedings by way of forfeiture would have been properly categorised as civil. There is a close parallel to the position which arises in interpleader proceedings and another parallel in the Customs & Excise Act provisions. It follows that in my judgment the correct answer to the preliminary point which has been argued before me is that the forfeiture proceedings pursuant to Section 97 of the Trademarks Act l994 and an appeal by way of an aggrieved person to the Crown Court in respect of a forfeiture order are proceedings to which the Convention applies being proceedings in a civil matter.
41. MR JUSTICE NEWMAN: For the reasons stated in the judgment which has been handed down, I have expressed the conclusion that the proceedings in the Crown Court are proceedings to which the Brussels Convention applies. Does anybody here now want to make any representations to me about the form of relief that they want?
42. MR BENNETT: I will wait to hear how it is put by the applicant.
43. MR JUSTICE NEWMAN: You are here for?
44. MR BENNETT: I am here for -- Harrow Crown Court were not represented; the Trading Standards Department of Harrow and Brent were, and Mr Mehigan and I appear on their behalf. May I come on to some minor amendments in a moment?
45. It is clearly going to have to go back to the Crown Court for combination of factors: one, for the material to be produced before the court to establish under section 97 that there was an offence within the jurisdiction; and two, in the light of your Lordship's judgment, for the Crown Court to consider whether or not the res judicata issue arises, bearing in mind the nature and the substance of the French judgment. It was adjourned, as your Lordship will recall --
46. MR JUSTICE NEWMAN: It was adjourned, yes. Then it is simply remitted by me to the Crown Court for the hearing to continue in the light of the judgment.
47. MR BENNETT: I am happy with that.
48. MR JUSTICE NEWMAN: That is the order I make. So far as costs are concerned?
49. MS SPARROW: My Lord, we apply for an assessment of the costs in this court and the court below.
50. MR JUSTICE NEWMAN: You want an assessment by me; or do you want a detailed assessment?
51. MS SPARROW: A detailed assessment.
52. MR JUSTICE NEWMAN: You cannot really resist the order for costs, can you Mr Bennett?
53. MR BENNETT: With respect, I am going to try. The reasons are as follows. We say -- first of all, I have asked the Associate to check the file. I was concerned about whether or not, in any event, the applicants had submitted their detailed cost schedule 24 hours before the hearing.
54. MR JUSTICE NEWMAN: I think they had.
55. MR BENNETT: The only reason I say that, is because we did not get it until the morning. If they have, then my first point, I concede, falls by the wayside.
56. The reality here, we suggest, is -- your Lordship will recall and it is dealt with at page 4 of your Lordship's judgment -- originally, Mr Tyrrell was anxious to pursue two points, both were as detailed as each other and both required significant research and significant expense. It had always been Mr Tyrrell's intention, and he contended it before your Lordship to start with, that he should be allowed relief in relation to point two.
57. Your Lordship saw both skeleton arguments. Your Lordship saw the authorities and the material we put together, which were divided between work on point one, namely, were the proceedings criminal or civil; and point two, please can this court take effect of the judgment. Your Lordship, as it says in the judgment, says: as a result of combined opposition from both Mr Mehigan and the court, it was a matter which was not pursued. So trying to assess costs is always going to be very difficult.
58. We would ask that the costs actually be reserved to the conclusion of the hearing at the Crown Court. There have been costs in relation to that hearing already. There has been no determination as yet, because there was taken as a preliminary point, and it would not be right, in our submission -- and I can go through the Civil Procedure book if necessary as to why we contend that it is better sorted out at the end. If your Lordship is against me on that, then we would apply for detailed assessment of our costs in relation to point two.
59. MR JUSTICE NEWMAN: Or the compromise is that I accede to your application in principle -- that you should not be forced to pay the costs that they have incurred pursuing the point that I dealt with in a summary way -- and merely make an assessment on a broad basis as to how much I deduct for that. It saves everybody an awful lot of time and expense, and arguing the detailed issues out on a summary assessment.
60. MR BENNETT: This is why it may be better dealt by the Crown Court below --
61. MR JUSTICE NEWMAN: The difficulty about that, Mr Bennett, is that the matter had to come here.
62. MR BENNETT: I agree with that.
63. MR JUSTICE NEWMAN: It has come here. It has been resolved one way, and it has been resolved, in principle, in favour of the applicant. On normal principles, I can see no reason why they should not have their cost in so far as they succeeded in this court. Therefore, the costs of the application for judicial review, it seems to me, in principle ought to be theirs. You have a perfectly valid point in so far as they did pursue and, therefore, to a certain extent put you at expense, on a point which I considered was a complete non-starter. That, I think, is a matter for which you should be accommodated.
64. I do not think, even in principle, the Crown Court should be dealing with the costs before this court. This court must deal with the costs before it. The Crown Court is not qualified to do it. So, I think that is the way it must be dealt with.
65. MR BENNETT: Are we entitled to pursue on assessment point two? Or is your order that the other side can have costs in relation to point one alone as assessed, and we cannot have anything.
66. MR JUSTICE NEWMAN: I must hear Ms Sparrow on this, and then I will come back to you. What do you want to say about this, Ms Sparrow?
67. MS SPARROW: The point about the second point is that this point was debated in the court below. We have heard what the other side is saying and basically that point -- part of the preparation will have to be reargued in the Crown Court, so not all that is wasted because it is still a very open matter which has not been decided yet. It may well be that we could come back to this court again on that particular point. So it is not, as such, a "gone out of the window" argument. It is an argument that is extremely likely going to be argued in the Crown Court and possibly, maybe, in this court again. So it is still alive.
68. MR JUSTICE NEWMAN: Not lost, you mean, for all time?
69. MS SPARROW: It is still very much alive. It is not something which has disappeared for good. It is a point which is extremely likely to be argued. Therefore, part of the preparation is exactly the same --
70. MR JUSTICE NEWMAN: I do not know whether Mr Mehigan or Mr Bennett will be employed or not, but what has happened is that counsel have prepared themselves for a hearing before me in order to deal with a point which really was a nonstarter and I think it is a question of how I reflect that in the order for costs.
71. Do you want to say anything to me about how I should do that? I have in mind, at the moment, that I give you your costs in this court, but not 100 per cent of them. Some reduced percentage to reflect the fact that you have raised and put the other side to costs in respect of something which was not pursued. That is how I propose to do it; do you want on say anything to me about how I should do it? It will be a broad based approach.
72. MS SPARROW: It is a discretional point as far as this court is concerned, but I ask you to bear in mind that it is an argument which was canvassed extensively already as far as preparation is concerned. It was already argued in previous courts, so it was not something which was absolutely thrown in and new to counsel. Also, of course, since it was not argued, there was not a lot of wasted time in court.
73. MR JUSTICE NEWMAN: No, it was not really argued in court. I did not give anybody the chance to do it.
74. MS SPARROW: This is also a live point. Not dismissed for good at all. It is very much a live issue to say the least.
75. MR JUSTICE NEWMAN: Thank you.
76. MR BENNETT: I concede it is entirely a matter for your Lordship's discretion. We urge, bearing in minding we are a local authority, that when deciding the percentage it is nearer to the 50 per cent mark than the 100 percent mark. Apart from that, anything else I say is going to be repetition.
77. MR JUSTICE NEWMAN: Thank you both very much indeed. The applicant must have their costs in this court which should be -- in the absence of agreement -- dealt with on a detailed assessment, but their total cost should be limited to 75 per cent of their costs in this court.
78. Thank you very much. Any other applications in that case?
79. MR BENNETT: No. It will now go back to the Crown Court.
80. Yes, sorry. Amendments: has your Lordship received them?
81. MR JUSTICE NEWMAN: All the amendments I received -- I received something from Mr Tyrrell. It was quite a long suggestion and in the end I thought, since it was really nothing other than a recitation of narrative, I thought the simplest thing to do was to take the paragraph out if it was going to be contentious. It seemed to me perfectly clear on the evidence, but I took it out.
82. MR BENNETT: Mr Mehigan did fax this, this morning, to your clerk.
83. MR JUSTICE NEWMAN: I think everything has been taken account of, Mr Bennett.
84. MR BENNETT: It was Mr Mehigan's suggestion that I mention it to you. Having lost I am happy not to appear in the judgment. It was not included. It was the fight to the death as it were --
85. MR JUSTICE NEWMAN: I cannot remember. You are certainly included on the cover sheet.
86. MR BENNETT: Oh well, there it is.
87. MR JUSTICE NEWMAN: Anything else.
88. MR BENNETT: The respondents, Mr Mehigan suggests, are in the incorrect order.
89. MR JUSTICE NEWMAN: That has been altered.
90. MR BENNETT: Thank you. The reference at page 2, four lines from the bottom, says section 11B.
91. MR JUSTICE NEWMAN: That has been altered. 11(1)(b). It becomes six now. So it is (b).
92. MR BENNETT: The final matter, paragraph 4 of the main paragraph. "Appeals" should read "application".
93. MR JUSTICE NEWMAN: That has been taken account of.
94. MR BENNETT: Kifol is K I F O L.
95. MR JUSTICE NEWMAN: Thank you very much