England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand
		Friday 9 November 2001

Friday 9 November 2001

1. MR JUSTICE GIBBS: In this matter Mr Bhamjee, the claimant, applies for a large number of items of relief. I have read the written application for those forms of relief that Mr Bhamjee has submitted to the court and the documentation in support of it. It is sufficient for me to say that, regrettably, a large proportion of the material submitted, whether viewed from the point of view of arguments of law or assertions of fact, is unintelligible.

2. In so far as the applications are intelligible they either disclose no grounds at all upon which permission should properly be granted for a judicial review application to be made; alternatively they refer to applications and potential applications which are not susceptible to judicial review. I therefore agree with the assessment of Silber J when he considered the matter on paper that all applications for permission for judicial review should be refused.

3. I have considered carefully Mr Bhamjee's oral applications here today and oral submissions in relation to his written applications. It is clear that he has been personally seriously affected by the events that have led to these applications and I have done my best to consider one by one the items that he has placed before me.

4. Firstly he asks that I should commit members of the Bar who have been representing other parties to these proceedings to be dealt with for contempt of court under section 31. He does not suggest that they be sent to prison but he asks that I should find them in contempt and fine them. No sustainable basis has been put forward for that application and it is refused.

5. Secondly, Mr Bhamjee has argued that the Secretary of State and/or the Inspector, having had power to discharge the enforcement notice, should have done so; alternatively, the certificate of use should have been discharged. Mr Bhamjee asks me to give him permission to appeal under section 289 to the House of Lords. There is no jurisdiction for me to give permission to appeal against any relevant decision to the House of Lords; and even if there were, I see no ground for doing so.

6. Thirdly, Mr Bhamjee refers to the recent case decided in the House of Lords, in which the House of Lords made certain findings as to the compatibility of the planning appeal system with the European Convention on Human Rights - R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment [2001] 2 All ER 929. There is nothing in the House of Lords' decision which could justify me making a reference of this matter to the European Court of Human Rights, as I am requested to do by Mr Bhamjee. Indeed, rather the reverse is the case: it would in my judgment be inappropriate for this court to grant an application to refer the matter to the European Court of Human Rights either as a matter of law or on the facts of this particular case.

7. Fourthly, Mr Bhamjee relies upon the Deregulation and Contracting Out Act 1994 section 71(1)(b) and indicates that the actions of the authorities constitute an interference with his liberty within the meaning of that section and so the function of the officials concerned should be excluded. I see no basis in law to support any such argument.

8. Mr Bhamjee put forward various other applications which, as far as I understand them, include the following: an application for permission of the court to issue negligence proceedings against the council; an assertion that by virtue of a 1997 statutory instrument Mr Bhamjee did not need planning permission for the actions which he took and which have been the subject of repeated litigation in this matter; applications to amend various aspects of his claims with a view to them being served on a Minister of the Crown; and he asks for orders for costs. None of those applications, insofar as they are intelligible, have any merit.

9. Therefore, as to all the matters which have been advanced to me both orally and in writing by Mr Bhamjee, I refuse permission for judicial review proceedings to be brought.

10. However, there is one matter that Silber J identified as falling outside the applications for which permission is required, and that was the appeal under section 195. It is common ground that permission is not required for this appeal to be brought, but Silber J directed that the matter of striking out Mr Bhamjee's appeal should be dealt with by this court, and it is before this court today.

11. The activities carried out by Mr Bhamjee at his premises were thought by the planning authority to be contrary to planning law. Accordingly the possible grant of a certificate of lawful use in relation to the change of use constituted by Mr Bhamjee's activities was considered by the authority and refused. Mr Bhamjee appealed under section 191(1)(a) on the basis that any existing use of his buildings or other land was lawful. Such a use would be lawful if no enforcement action could be taken in respect of it, either because it did not require planning permission or did not involve development by the time the enforcement action had expired. There was no claim that the time had expired. The essential issues raised under the appeal were the same as for the enforcement notice; namely whether the use constituted development and/or whether planning permission was required for the change of use. The issue raised, in other words, was identical with the issue which had been raised in the enforcement notice procedure.

12. A number of courts and bodies have decided the merits of that matter, including Sullivan J on 23 January 2001. In the course of a lengthy and considered judgment, he said at paragraph 7:

"I pause there to note that in that respect the inspector was entirely correct. It is perfectly obvious that given the existence of the condition, planning permission was required for the development proposed. The references by Mr Bhamjee to various statutory instruments do not alter that position."

13. So the matter has been considered not only by the Inspector but by Sullivan J. In reality this appeal is simply an attempt to reopen yet again an issue which is plainly without merit and has been determined by a competent court on a previous occasion.

14. It has been responsibly drawn to my attention by counsel for the defendant that there are circumstances in which human rights issues, particularly the issue of the right to a fair trial, can arise on strike out applications. The basis for such issues arising is that upon a strike out application the person whose claim is being struck out may be prevented from a fair hearing of the matter on the merits. That cannot possibly apply in the case of this appeal, because the merits of the matter have been considered at least twice before. The only conclusion to which I am driven is that the pursuit of the appeal is in fact not only without merit but an abuse of the process of the court. Accordingly, the appeal is struck out.

15. MR JUSTICE GIBBS: I think that deals with all the issues which are raised before me today.

16. MR FORSDYKE: I believe it has, my Lord. There is an application for costs on behalf of the Secretary of State. This matter has, as you can imagine, been a matter that has taken up a huge amount of time for the Secretary of State, responding to various letters and correspondence and so on. Before Carnwath J a year or so ago the Secretary of State asked for costs and was awarded a minimal amount on the basis that the Secretary of State need not get involved in these matters. The position here of course is different because permission was not required for section 195. The Secretary of State came before my Lord on this application today in order to save Mr Bhamjee the cost of a full day's representation on the merits of the section 195 application.

17. MR JUSTICE GIBBS: It would have been bound to fail.

18. MR FORSDYKE: But, my Lord, we would have had to turn up.

19. MR JUSTICE GIBBS: What is the nature of the order for costs you are asking for?

20. MR FORSDYKE: Summary assessment in the sum of £5,860.75 which is largely taken up with a huge amount of solicitor's time in attendance on the opponent and on the opponent's documents.

21. MR JUSTICE GIBBS: Do you have any application for costs, Mr Walton?

22. MR WALTON: My Lord, we also have an application for summary assessment. Have you seen a schedule?

23. MR JUSTICE GIBBS: No.

24. MR WALTON: In the sum of £1,353.50. (Handed)

25. MR JUSTICE GIBBS: Have copies of these summary assessment forms been served upon Mr Bhamjee?

26. MR WALTON: Certainly in the council's case, yes.

27. MR FORSDYKE: Yes.

28. MR WALTON: It is the council's position as second respondent that there is a discretion for costs. Sometimes a second respondent should get their costs. Here we have the section 289 application for permission to appeal under the guise of a judicial review, and that is different from judicial review. There is the entitlement to turn up at the court hearing, and the general rule is that costs follow the event of the proceedings, accepting the discretion of the court. On the section 288 hearing, the one that you struck out, my Lord, there was of course the direction that all parties attend.

29. MR JUSTICE GIBBS: Of course.

30. MR WALTON: The real reason we have turned up, I suppose, is that Mr Bhamjee indicated he was going to challenge the Inspector's decision on costs. Those costs remain unpaid and they are obviously of importance to the council.

31. MR JUSTICE GIBBS: Have I been handed a copy of your schedule?

32. MR FORSDYKE: I apologise, my Lord. (Handed)

33. MR JUSTICE GIBBS: Mr Bhamjee, you have been unsuccessful in this hearing and the defendants are applying for their costs. Is there anything you want to say about that?

34. THE CLAIMANT: I wanted to work. They are preventing me from working hard so I cannot repay. Section 51(7)(b) of the Supreme Court Act 1981 applies and therefore I have the - because the normal procedures here are this, that I cannot just go straight away from the council straight away to the House of Lords or straight away from the council decision straight away to the European Court of Justice. There are normal procedures to be followed up and so on. So when I - I have come several time into court to ask for a hearing date out of so on or whatever it is. They have not been given us. So been trying to talk with them on a friendly manner, they do not want, so they are preventing me to working very hard and so on, so now the only course for me is to appeal to the House of Lords because my appeal is pending in the European Court of Justice ---

35. MR JUSTICE GIBBS: It is costs that I was asking about.

36. THE CLAIMANT: I am saying section 71(7)(b) says, because I cannot work and then the Secretary of State for the Environment says the employment and so on they could not take into consideration of that and therefore I have to appeal. Whether you grant me Administration of Justice Act 1960 applies section 1 that you may give me leave to appeal to the House of Lords on the question of that out or set out and so on because when somebody is trying to earn a living ... My Lord, I was not after their bread and butter, they have come after my bread and butter so now I have to go against them, their bread and butter.

37. MR JUSTICE GIBBS: Thank you. It seems to me to be appropriate and practical to adopt a summary assessment of the costs here. I have had an opportunity to consider the schedules of costs. Unfortunately it is in the nature of cases as widespread and protracted as this that costs of a substantial volume do build up. The costs in the case of each defendant represented today have to be born by the public. I make a summary assessment of costs in relation to the first respondent's costs, having looked at the schedule, of £5,000, in relation to the second defendant's costs of £1,100. For the avoidance of doubt, it seems to me that whilst it would be have been open to me to award the full amount claimed on an indemnity basis, because Mr Bhamjee is a litigant in person and because I have not specifically been asked for costs on an indemnity basis, I have assessed these costs on the standard basis and scaled them down somewhat as a consequence.

38. MR FORSDYKE: I am grateful, my Lord. There does remain one issue which I am slightly reluctant to raise with the court, but I think it is necessary in the circumstances, and that is the role of counsel in future applications.

39. MR JUSTICE GIBBS: Counsel?

40. MR FORSDYKE: Counsel - myself and my learned friend - before this court or the Court of Appeal on any renewed applications, simply because this matter has now come before Carnwath J, Silber J, Sullivan J and my Lord and the Court of Appeal, and the Secretary of State and no doubt the council incur significant additional costs and effort which is unnecessary.

41. MR JUSTICE GIBBS: Can I make a practical suggestion with regard to that? I am prepared to say this, that those legally advising any respondents to future applications may in their discretion decide not to attend on behalf of their clients. I approve that approach at any future applications and I direct that the attention of the court be drawn to what I have said in any future applications. Without binding the court in question or seeking in any way to bind the court in question, I would suggest that a helpful approach might be that if a court finds itself in difficulty as a result of the absence of representation from a respondent, then the case should be adjourned and the relevant respondent invited to attend.

42. MR FORSDYKE: I am grateful for that, my Lord.

43. MR JUSTICE GIBBS: Does that seem to be appropriate?

44. MR FORSDYKE: Exactly; and what my solicitors will do on future applications will simple be to record that in a letter to the court which is dealing with that application.

45. MR JUSTICE GIBBS: It may be that the court itself would be assisted by attendance on certain occasions. If that is the case then I would encourage representation to be minimal in terms of numbers.

46. MR FORSDYKE: Yes. I am grateful.

47. MR JUSTICE GIBBS: Would counsel be kind enough to draw an appropriate order to reflect that?

48. MR FORSDYKE: Of course.

49. MR JUSTICE GIBBS: Thank you, Mr Bhamjee.

50. THE CLAIMANT: I ask for ---

51. MR JUSTICE GIBBS: The case is now concluded.

52. THE CLAIMANT: I ask for a transcript of the judgment out of public funds.

53. MR JUSTICE GIBBS: No, that is refused. Thank you.