England and Wales High Court (Administrative Court) Decisions

R (ON THE APPLICATION OF CHORION PLC) v. WESTMINSTER CITY COUNCIL [2001] EWHC Admin 754 (5th October, 2001)

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		CO/3423/2000 Royal Courts of Justice Strand London WC2A 2LL
		5th october 2001

JACK BEATSON Q.C.:-

1. INTRODUCTION: By C.P.R 38.6(1) “[u]nless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom he discontinues incurred on or before the date on which notice of discontinuance was served on him”.

2. Chorion plc has applied for permission to discontinue judicial review proceedings against Westminster City Council and for an order that Westminster should pay its costs. Westminster resists the application that it pay Chorion’s costs and submits that the appropriate order is that Chorion pay Westminster’s costs.

3. In the judicial review proceedings Chorion, a company operating a number of bar nightclubs in London’s West End, challenged Westminster’s policy, adopted on 20 June 2000, for the grant, renewal and variation of public entertainment and night café licences. The proceedings were issued on 20 September 2000 and Richards J granted permission on 1 November. Chorion wishes to discontinue the proceedings because on 20 March 2001 the Council made changes to the Policy concerning variations of license which Chorion submits are fundamental and amount to a complete concession of its primary case in the judicial review proceedings. Its application for costs is made on the ground that the changes to the Policy made in March 2001 gave it the principal relief which it sought and that it is accordingly proper for the Court to reflect this in its order for costs. On behalf of Westminster, Mr Gouriet submits there is no reason to depart from the general rule in CPR 38.6(1), and good reason to apply it. The submissions concerned the nature of Chorion’s “primary” case -- was it the application of the Policy to variations of licenses or was this only part of a wider challenge to the Policy as a whole --, and the conduct of the parties, both before and after proceedings were issued.

4. THE BACKGROUND: Westminster’s new policy, entitled “Entertainment and Night Café Licensing Policy Guidelines”, was adopted following a consultation exercise in the last three months of 1999. The Council’s concern was to balance its role as an entertainment centre and a residential community. The material parts of the introduction and of chapter 6, which was the subject of the challenge by way of judicial review, state:-

“Introduction

1.1 This document sets out the policy framework within which we (Westminster City Council) will consider applications for public entertainment and night café licences. The aim is to provide guidance to applicants and objectors on the general approach.

…

1.7 We recognise that each licensing application must be considered on its individual merits. However, it is helpful for all parties to know the policy context within which applications are considered. Whilst an application is unlikely to be refused on policy grounds alone the relevant policy will be a consideration which we will take into account when determining applications.

…

6 Location of Premises and Prevention of Nuisance

A. Location of Premises

Inside the Central Activities Zone (CAZ)

6.1 For the avoidance of doubt, throughout this chapter any reference to a new license includes variations of licences, except those of a purely technical nature such as changing the number of cloakroom attendants.

…

6.6 …[I]n mixed commercial/residential areas such as Soho and Covent Garden residential amenity is under such severe pressure that the areas have been designated by the Council as the “West End Stress Area”. In this stress area it is considered that new licences should not be granted beyond 1 am unless the applicant can demonstrate that there would be no harm to residential amenity or local environmental quality.

…

6.8 With these factors in mind the Council has approved the following policy statements:

The preferred location for entertainment premises or for premises providing late night refreshment is generally within the Central Activities Zone. Applications for licences outside this Zone will require a higher level of justification.

Within the CAZ there will be a policy presumption against granting new licences for entertainment premises or night cafés, (particularly those with a proposed terminal hour beyond 1 am), in areas which are almost entirely residential or in areas which are already saturated with late night entertainment and refreshment uses.”

5. Westminster adopted the Policy on 20 June 2000 and Ms Anderson, Chorion’s development manager, learned of this the next day, when she received a copy of a press release issued by the Council. The press release stated that “the plan includes earlier closing times for new establishments” and on 29 June Chorion sought confirmation from Poppleston Allen, it’s licensing solicitors, that the Policy only applied to applicants for new licences. A copy of the Policy was sent by Poppleston Allen to Chorion on 1 August with a letter in which they advised that the policy document made it clear that applications for variations of licences would be treated as applications for new licences and thus subject to the presumption of a terminal hour of 1 am. Ms Anderson states that she was astonished when she saw the new Policy as it had fundamentally changed from the draft policy upon which Chorion had been consulted, in particular by the replacement of a “Quiet Enclaves/ACE routes” scheme with the policy against granting licenses beyond 1 am within the West End Stress Area, and the application of the Policy to variations of licences. Ms Anderson states that Chorion sought further advice from Poppleston Allen as to the precise position in relation to applications to vary licences. As a result of that advice Mr Tamblyn, Chorion’s Group Managing Director, wrote to Councillor Hooper, the Chair of Westminster’s Planning and Licensing Committee. The material parts of that letter state:

“Of course, I realise that there has already been a period of consultation prior to the new policy being adopted and I am not therefore seeking any further consultation or input into the policy itself.

However, it seems to me that the method of implementation of this policy is causing unnecessary friction within the community and that Westminster and its licensees and residents should be working together in partnership to try to achieve something of what each wants.

…

I would welcome your views and would be delighted to be able to discuss the matters with you either formally or on a completely ‘off the record’ basis.”

6. By 31 August, Chorion, with its solicitors, Paisner & Co, now Berwin Leighton, Paisner, were considering judicial review proceedings. On 1 September Mr Tamblyn’s secretary contacted Councillor Hooper’s office to confirm that the letter of 18 August had been received. She was told that the Councillor was on holiday, but had seen the letter and had indicated that the Council intended to hold a seminar in the autumn to allow parties to express concerns about the new policy. On 7 September Paisner & Co inquired as to the first available date for a conference with counsel; instructions were delivered on 12 September and a conference took place on Friday 15 September. On the same day, in the light of counsel’s advice Paisner & Co wrote to Councillor Hooper. This letter stated that in the absence of any response before Wednesday 20 September judicial review proceedings would be commenced and invited the Council to reconsider the Policy. The significance of 20 September was that it was the last day of the three month time limit for applications for judicial review.

7. The principal grounds for Chorion’s challenge were stated to be lack of consultation on significant parts of the Policy, in particular the treatment of applications to vary existing licenses. The letter stated:-

“The Policy states that applications to vary licenses will be treated as applications for new licences. This means that licence holders such as our client will have to place their existing licences in jeopardy if they wish to improve or alter their venues.”

Paisner & Co also stated that Chorion considered that the treatment of applications to vary existing licenses as new applications was arbitrary, and unreasonable, and contrary to the European Convention on Human Rights.

8. The letter was passed to Mr Large, Westminster’s Assistant Director of Legal Services, on Monday 18th September. The Council replied on 20 September stating that it did not accept that the Council was under a legal obligation to consult Chorion before adopting a Licensing Policy, that it was not the case that a consequence of the Policy was that licence holders

“have to place their existing licences in jeopardy if they wish to improve or alter their venues. That is not what the policy says and it is not how the policy has been applied in practice. The Council’s powers when considering a variation application do not extend to revocation in any event”.

9. That letter crossed with one also dated 20 September from Paisner & Co enclosing a copy of the application for permission to move for judicial review Chorion had filed on that day.

10. The grounds of challenge went beyond Chorion’s concerns about the operation of the Policy with respect to applications to vary existing licences contained in its letter of 15 September. There was also a challenge to the Policy against post 1 am licences in the West End itself (which Chorion described as a “blanket ban”) on the ground of procedural unfairness, irrationality and inconsistency, and breach of Human Rights.

11. On 19 October, after considering the grounds for judicial review and the evidence in support, the Council wrote to Chorion stating that it considered that in two key respects the application was based upon a fundamental misapprehension as to the nature and effect of the Policy. The Council stated that as it understood the evidence of Mr Tamblyn and Ms Anderson, and comments made to the press, Chorion’s concern was that the Council had adopted a policy which provided for “a blanket ban” on 3.00 am licences in the West End, and that in particular holders of existing licences were caught by the Policy because it applied to variation applications as well as new applications, so that any necessary application to vary the licence as a result of worthwhile improvements to premises would result in the permitted hours being cut back. It noted that in the application for judicial review this was expressed as a concern that the Council would use the Policy as a basis for rescinding the licence altogether on a variation application, although, as the Council’s earlier letter had pointed out, the Council had no power to do this. It was stated that:

“…[T]he Council’s policy does not (and cannot) operate as a “blanket ban”, nor does its policy on variation applications have the effect feared by your clients.”

To illustrate this point reference was made to the applications to vary a public entertainment licence in the West End stress area since 20 June. It is stated that:

“…in none of the cases where the application was granted did the question of “cutting back” the permitted hours even arise as an issue. This is because the Council’s Policy contains no reference to cutting back permitted hours.”

12. The letter concludes that, to the extent that Chorion’s application was motivated by a fear that the Council will apply a blanket ban, or will cut back the existing permitted hours, the writer hopes he has demonstrated that such fears are unfounded.

13. On 24 October Paisner & Co replied, noting that the Council’s letter focused on variation applications, accepting that “part” of Chorion’s application focuses on the council’s Policy for such application, asking questions about the terms and application of sections 6.1, 6.6 and 6.8 of the Policy, and commenting on the examples referred to in the Council’s letter.

14. The letters of 15 September and 19 and 24 October were before Richards J. when he was considering the grant of permission. Permission was granted on 1 November.

15. On 10th November the Council wrote again to Paisner & Co, re-iterating and expanding its previous explanation, and reaffirming that “the Council’s policy will only bite on ‘upwards variations’”, and that “there is no presumption that the existing licence will be cut back”. This was reaffirmed in a further letter on 14 November in response to a request by Paisner & Co for clarification of the Council’s policy by reference to a hypothetical case. On 20 November Paisner & Co suggested an amendment to section 6.1.

16. The Council replied on 29 November stating while it did not accept its policy document was unclear or that it did not accurately reflect the Council’s policy in relation to applications for the variation of a licence, it was prepared to amend the Policy to clarify it, provided that results in the withdrawal of the judicial review proceedings. The Council enclosed its proposed amendments to sections 6.1, 6.8 and 6.12. Sections 6.1 and 6.8 (with the amendments underlined) would provide:-

6.1 For the avoidance of doubt throughout this chapter any reference to the extension of an existing licence means the variation of a licence, so as to increase the terminal hour, increase the capacity, or otherwise vary a condition attached to the licence so as to alter the nature of the operation in a way which might adversely affect residential amenity.

6.8 The preferred location for entertainment premises or for premises providing late night refreshment is generally within the Central Activities Zone. Applications for licences outside this Zone will require a higher level of justification.

Within the CAZ there will be a policy presumption against the grant of new licences for entertainment premises or night cafés, (particularly those with a proposed terminal hour beyond 1 am), and against the extension of existing licences, in areas which are almost entirely residential or in areas which are already saturated with late night entertainment and refreshment uses.”

17. After obtaining confirmation on one matter, Paisner & Co replied on 21 December confirming that it is “satisfied that the proposed amendments … meet its concerns in relation to the possible ‘cutting back’ of licences” and that Chorion “will, in due course, apply for permission to amend its application to reflect this”. Early in January this year, after the case had come into the warned list, it was by consent stood out of the list until after 20 March when the proposed amendments were to be considered by the Council. In a letter dated 15 January concerning this Paisner & Co stated that once Chorion was notified whether the amendments had been adopted it would be in a position to determine both the nature of any amendments to its application and the future conduct of its application. On 20 March the Policy was amended.

18. THE SUBMISSIONS: Mr Hunter, on behalf of Chorion, submits that the changes made in March 2001 gave it the principal relief which it sought and that it is accordingly proper for the Court to reflect this in its order for costs. CPR 38.6 reflects the fact that as a general rule a claimant who discontinues is conceding that he has lost or cannot win. In Amoco (UK) Exploration Co. v British, American Offshore Ltd. (12 December 2000) Langley J. stated that where a claimant can show that he has won or would have won there is good reason for making a different order; one which fairly reflects the overall merits. Chorion’s case is that, by section 6.1 of Westminster’s published policy, policy statements applicable to new licences were deemed to apply to applications to vary existing licences. Accordingly the meaning of the published policy was that on applications for the variation of licences, they would be cut back to 1 am. Mr Hunter argued, that if, as Westminster stated, it did not intend the Policy to have this effect because it was too draconian, that in itself rendered the Policy subject to challenge by judicial review. It was unlawful or at any rate reviewable on familiar public law principles to publish a policy that meant something other than what was intended. The amended Policy meant that policy statements applicable to new licences did not apply to applications to vary existing licences and effected a fundamental change by adopting a less draconian policy of refusing variations which seek upwards extensions to terminal hour or capacity in particular areas. The amended Policy thus gave it the principal relief which it sought.

19. Chorion also relies on Westminster’s conduct before and after the proceedings were issued in support of its application for costs. It argues that it was forced to commence the proceedings by Westminster’s unreasonable conduct, in particular the fact that it did not take up Chorion’s invitation on 18 August that the Council meet to discuss its concerns and the Council’s failure to reply to Paisner & Co’s letter of 15 September before the deadline of 20 September. It also argues that the Council took an unreasonable position in opposing the granting of permission, and that it was only after permission had been granted that it became willing to concede that there should be an amendment to the Policy.

20. On behalf of Westminster, Mr Gouriet pressed for the application of the general rule in CPR 38.6(1). He argued that here there had been no effective letter before action. In R v. Horsham DC, ex p. Wenman [1994] 4 All ER 681, at 710 Brooke J. stated:

“… judicial review proceedings, in which the High Court is invited to supervise the way in which inferior bodies perform duties imposed on them by statute, should not ordinarily be embarked on before the inferior body has received a complaint and been given an opportunity to say whether or not it accepts it, and if it does not, to give its reasons for its stance.”

Mr Gouriet argued that Chorion had failed to do this. Although it was concerned about the application of the Policy to variations of licence at an early stage, it made no complaint to Westminster until 15 September, only five days before the expiry of the three month time limit for judicial review proceedings and the date proceedings were in fact instituted. The earlier letter of 18 August did not complain about the legality of the Policy or specify Chorion’s grievance about the effect of the Policy on applications to vary existing licenses. In that letter Chorion stated it was not seeking any further consultation or input into the Policy itself, but was concerned with the Council’s method of implementation of the Policy. With regard to the complaint in the letter of 15 September, Westminster had responded promptly. Chorion had left insufficient time for Westminster to consider its complaint and reply, and for Chorion then to assess the reasonableness of any answer received before the expiry of the time limit.

21. Mr Gouriet also submitted that Chorion’s application was not “bound to succeed on the merits”, and that the changes to the Policy made in March were confined to variations of licenses whereas the judicial review proceedings constituted a broad challenge to the entire policy. With regard to the merits of the claim, he submitted, as Westminster had repeatedly assured Chorion, that the Policy was not to “cut back” existing licences until 1 am when considering applications for their variation and that it had not worked this way in practice. Mr Gouriet submitted that the Policy had to be read in context and the context included sections 1.1 and 1.7 (set out above) which stated that applications were unlikely to be refused on policy grounds alone and that the relevant policy was a consideration the Council would take into account.

22. Westminster’s letter of 19 October 2000 stated that the Policy did not have the effect claimed by Chorion and sought to illustrate this by examples of how the Policy had worked since its introduction. There was no agreement between the parties as to whether the examples given in fact show that the application of the Policy did not involve “cut back” or threatened “cut back” in cases of variation of licences, and I am not able to resolve this matter in these proceedings.

23. CONCLUSIONS: The matter is one for my discretion.For the reasons given below, save in one respect I have concluded that Chorion’s submissions are to be preferred. I will first deal with the effect of the amendment, and will then turn to the conduct of the parties.

24. (a) Did the changes made in March 2001 give Chorion the principal relief which it sought? In my judgment the effect of the deeming provision in section 6.1 of the original Policy meant that the statement set out in section 6.6 applied to applications to vary licences. If, as the deeming provision required, the words “variation of licences” were substituted in the last sentence of section 6.6 , it would state:

“In [the West End Stress] area it is considered that variations of licences should not be granted beyond 1 am unless the applicant can demonstrate that there would be no harm to residential amenity or local environmental quality.”

Accordingly, I accept Mr Hunter’s submission that the meaning of the published document was that there was a policy in favour of a 1 am termination time in cases where a licensee applied for a variation of licence; i.e. a policy in favour of “cutting back” licences in such circumstances. I do not accept Mr Gouriet’s submission that the Policy did not have this effect because it had to be read in context, which included sections 1.1 and 1.7 (set out above) which stated that applications were unlikely to be refused on policy grounds alone and that the relevant policy was a consideration the Council would take into account. While it is undoubtedly the case that a policy does not and cannot tie the hands of the Council, it is the starting point for the consideration of, in this case, licensing matters. It would be lawful for the Council to apply the Policy provided it does not close its mind to the particular facts of a case. It follows that the changes made in March 2001 did give Chorion the relief which it sought in respect of variations.

25. I also accept Mr Hunter’s submission that publishing a policy that meant something other than what was intended rendered that policy susceptible to judicial review. Policies are a means if promoting consistency while not fettering the discretion of a public body (see e.g. H.T.V. v. Price Commission [1976] I.C.R. 170, 185) and are meant to afford guidance to those affected by them as to how public authorities will exercise their powers. In British Oxygen Co. Ltd v Ministry of Technology [1971] AC 610 Viscount Dilhorne stated (at p. ) that it was reasonable and right for a public authority to make known to those interested the policy it was going to follow: “[b]y doing so fruitless applications involving expense and expenditure of time might be avoided”. If a policy is not to be applied in accordance with its meaning, as would have been the case on the original wording of section 6.1 of the licensing policy, there can be no such guidance

26. Mr Gouriet argued that the amendments did not give Chorion the principal relief it sought. Chorion had a general concern over what it referred to as the blanket ban. The judicial review proceedings went beyond variations and challenged the Policy in cases of new applications. Moreover, Chorion did not say it would withdraw from the proceedings once the amendments were made. In my judgment, although there was concern about the Policy as a whole, the focus of the challenge was, as shown by Paisner & Co’s letter of 15 September, the application of the Policy to variations. Variations were the only matter mentioned in that letter. I conclude that the changes made in March 2001 gave Chorion the principal relief which it sought.

27. (b) The conduct of the parties before proceedings were issued: I do not accept that the Council’s response to the letter of 18 August was unreasonable. Chorion had identified that it had concerns about the application of the Policy to variations of licences by 1 August and had taken legal advice. But the letter of 18 August did not air a legal or other grievance about the Policy itself, nor indeed did it air any specific grievance. There was simply an expression of general concern about the implementation of the Policy and a request for a meeting. In view of the nature of this letter, the response that there was to be a seminar at which concerns could be discussed, first communicated to Chorion when Mr Tamblyn’s secretary contacted Councillor Hooper’s office on 1 September, was in my view entirely reasonable.

28. I also reject the argument that the Council’s failure to answer the letter of 15 September until after the deadline expired was unreasonable. The letter was sent on a Friday, I know not when. It was not addressed to the legal department but to Councillor Hooper. It is stamped as received on Monday 18 September and reached Mr Large in the Department of Legal Services on that day. The Council’s reply was faxed to Paisner & Co at 5.30 pm on 20 September. There is absolutely no foundation for the view that the Council, in replying within three working days of the first intimation of a complaint, acted unreasonably.

29. I have referred to the fact that by 31 August Chorion’s solicitors were actively considering judicial review. Mr Hunter submitted that notwithstanding the fact that it had obtained legal advice at the beginning of August and was considering the possibility of judicial review by 31 August, Chorion could not have been expected to have raised its legal concerns earlier than 15 September even in general terms. Nevertheless Chorion argue that the Council’s excuse that it did not have enough time to reply to the letter of 15 September was a poor excuse and that the Council need only have stated that it would reconsider or that it needed more time. Against the background of events from the time Chorion was informed of the contents of the Policy on 1 August, while I accept the need for further advice, given the approach of the end of the three month time limit and the need for a letter before action, I consider that it should have aired its grievance before 15 September, albeit perhaps not as specifically as after it had taken counsel’s opinion.

30. (c) The conduct of the parties after the proceedings were issued: By 19 October the Council had a full opportunity of considering both the letter before action and the grounds and evidence in the judicial review proceedings. In its letter of that date the Council did not accept its policy meant something different to that intended by it. It opposed the granting of permission, primarily on the ground that Chorion had misconstrued the original section 6.1, stating that “the effect of the Council’s policy is that there is a presumption against the grant of applications to extend permitted terminal hours or to increase the capacity of licensed premises in the West End stress area”. In the light of my conclusion about the proper construction of sections 6.1 and 6.6, this was wrong. It was only after Richards J, who had considered all the Council’s correspondence, granted permission that the Council became willing to concede that there should be an amendment to section 6.1 of the Policy. The Council’s conduct after the proceedings were issued can thus be characterised as open to question and unreasonable in view of the merits of Chorion’s case with regard to variations of licence.

31. Although, Chorion obtained the principal relief which it sought, and notwithstanding the Council’s conduct after the proceedings were issued, there remains the fact that Chorion’s conduct before proceedings were issued was in my view open to question for the reasons I have given. I have considered whether this justifies me either refusing to make the Order Chorion seeks, or only granting it a proportion of its costs. I have, however, concluded that in the circumstances of this case a costs order which, in Langley J’s words, fairly reflects the overall merits of the case does not require either a deduction or a denial of costs. This is because the Council’s reply after having had a month to consider the grievance and the challenge to the Policy was to reject the complaint and in view of the particular nature of judicial review proceedings with a permission stage, the Council was in all probability not in fact in a worse position than it would have been if the letter before action had left sufficient time for it to reply and for Chorion to consider the reply before issuing proceedings (on which see, by analogy para 2.4 of the Practice Direction on Protocols).

32. Accordingly I grant Chorion permission to discontinue the judicial review proceedings and I award costs against the Council. I shall hear the parties on assessment and payment on account.

********** (This transcript has been prepared without the assistance of documents)

MR BROMLEY-MARTIN: My Lord, I appear this morning on behalf of the Westminster City Council and, as your Lordship knows, Mr Hunter appears on behalf of the applicant, Chorion Plc.

JACK BEATSON QC: Yes. You all know the time constraints this morning and, until I received your skeleton argument quite late yesterday evening, I had understood that my clerk had made it clear that we had half an hour. Are we going to be able to deal with this in half an hour? I have read the skeleton arguments. I am, of course, willing to hear you, but are there substantial points that are not in the skeleton which relate to why I should not hand down the draft judgment?

MR BROMLEY-MARTIN: My Lord, there are one or two, but I would only ask for the opportunity to address your Lordship at this stage on whether or not there should be argument on the meaning of sections 6.8 and 6.12 in the future. As your Lordship knows, I was not here on 20th September, but I understand that on that date there was not any argument, or any substantial argument, on the meaning of sections 6.8 and 6.12. My Lord, I would be very happy merely to argue this morning why there should, at some future date, be argument on that question, or those questions, and that would therefore not take up the time this morning.

JACK BEATSON QC: Well, let me hear you because I have come to hand down the judgment and you are seeking to persuade me that I should not hand it down and that I should hear argument. I have read your skeleton argument with care. I have also read Miss Muriel's submissions on the draft judgment, and I hope that everyone has all these documents.

MR BROMLEY-MARTIN: My Lord, I can deal with this swiftly because I do not propose to argue before your Lordship what the meaning of sections 6.8 and 6.12 are.

JACK BEATSON QC: Yes.

MR BROMLEY-MARTIN: Your Lordship can see what Mr Gourier said about that, and indeed what I briefly said about it in my skeleton of yesterday's date. My Lord, my principal submission this morning is this. The principal issue in the judicial review proceedings brought by Chorion was the meaning of the policy in relation to the policy statements obtained within the policy, or sometimes referred to as guidelines, and that it would be, in my respectful submission, inconceivable that a case which turned upon the meaning of the policy, and therefore the policy statements, could pass by without there being any argument about the meaning of the relevant policy statements and, even more, that there should be no reference to the policy statements in the judgment.

JACK BEATSON QC: There is reference, just not in the conclusions section.

MR BROMLEY-MARTIN: My Lord, your Lordship is quite right, there is no reference or judgment upon the policy statements in the conclusions.

My Lord, could I start by taking your Lordship to something which is not referred to in my skeleton argument, which is the form 86A, the claim form of the applicant, at page 25 of bundle A. Your Lordship can see at (2) on that page that the complaint made by the applicants was made in relation to the policies set out in bold in section 6 of the document with which we are concerned. My Lord, looking at the actual document itself, which your Lordship knows is item 3 in that same bundle.

JACK BEATSON QC: Yes.

MR BROMLEY-MARTIN: Your Lordship knows that the document is headed and entitled "Guidelines and Guidance to Applicants and Objectors". Then turning to section 6, which is at page 109, your Lordship will see, and knows, that the first part up to paragraph 6.7 is all in ordinary type, and it is paragraph 6.8 which is specifically designating the policy statements with the words "The Council has approved the following policy statements", that is in 6.8, then in 6.12 "these issues are set out in the following approved policy statements". Then, my Lord, those policy statements are set out in bold and are clearly the wording to which the form 86A was directed.

JACK BEATSON QC: Yes.

MR BROMLEY-MARTIN: My Lord, I am aware that Mr Gourier at one point argued for a meaning of section 6.6 by asking your Lordship to consider other paragraphs, in particular section 1.7, and your Lordship in the draft judgment rejected the submission made by Mr Gourier that section 6.6 should be looked at, so to speak, in the light of other sections, including section 1.7. My Lord, I would invite you therefore to take up your Lordship's decision or conclusion in relation to that, therefore arguing the opposite direction from Mr Gourier, and I would submit that if that is the position in relation to the meaning of 6.6, then in relation to 6.8 and 6.12, it is equally not possible to look to the meaning of 6.8 by reference to 6.6 or 6.1. Having said that, my Lord, can I say at once that 6.8 and 6.12, in my submission, do bear only one meaning; it is not the meaning contended for by Chorion and it is a different meaning to your Lordship's draft conclusion in relation to section 6.6, but that once one has concluded what the meaning of 6.8 and 6.12 are, one finds that in fact 6.6 is not inconsistent with that meaning.

My Lord, as I understand it, as I think I have mentioned, although I was not here as your Lordship knows, 6.8 and 6.12 were simply not the subject of argument.

JACK BEATSON QC: Mr Gourier refers to them and read out one of them, I think, I can check my notes, substituting the words "variations in".

MR BROMLEY-MARTIN: My Lord, I obviously bow to your Lordship's superior knowledge because I have not seen a transcript of what did occur, but I understand that in Mr Hunter's reply there was reference only to 6.6 and 6.1, and that at that stage Mr Gourier did not, so to speak, bring the court, and your Lordship in particular, back to what ought to have been the sections under consideration, being the policy statements in 6.8 and 6.12. My Lord, in my submission, any decision in this case, and I obviously say this with great respect, needs to address the meaning of sections 6.8 and 6.12. I know that there has been a suggestion that the absence of reference to 6.8 and 6.12 could be dealt with by removing the word "policy" from line 3 of paragraph 24 of the draft judgment.

JACK BEATSON QC: Yes. I have seen what you say in your skeleton about that.

MR BROMLEY-MARTIN: My Lord, in my respectful submission, that simply would not deal with the problem, which is the absence of conclusion in relation to 6.8 and 6.12.

Can I emphasise, without wishing merely to ingratiate myself, that it is quite plain that the absence of reference to 6.8 and 6.12 is no failing on the part of the judgment, I say this about both counsel who appeared on the last occasion. If there are matters of significant importance, which I say sections 6.8 and 6.12 are, and it is not made clear to the judge by either party sufficiently strongly that those are the two sections which must be construed and not 6.6 by reference to 6.1, then, my Lord, the fault for that lies with both counsel, and I say that without passing any suggestion of blame or impropriety, let alone impropriety. My Lord, it is plain that for your Lordship to be in a position to pass judgment your Lordship must be directed to the proper sections. In my submission, it is perfectly plain that your Lordship has been misled or misdirected, not of course deliberately at all, to the wrong section for construction. I promised that I would not go into the question of --

JACK BEATSON QC: Well, I am looking at the clock.

MR BROMLEY-MARTIN: There is obviously a different wording in 6.8 and 6.12 to 6.6. My Lord, we would very much appreciate your Lordship's judgment and construction of 6.8 and of 6.12, whichever way it eventually goes. In my submission, it is vital that your Lordship should bring your Lordship's judgment to the construction of 6.8 and of 6.12, and your Lordship can really only do that when your Lordship hears full argument on the subject. My Lord, those are my submissions.

JACK BEATSON QC: I am grateful.

MR HUNTER: My Lord, may I begin by taking your Lordship to paragraph 5 of my skeleton, what the Court of Appeal has said about these --

JACK BEATSON QC: Yes.

MR HUNTER: This is Royal Brompton Hospital NHS Trust v Hammond.

JACK BEATSON QC: Yes.

MR HUNTER: At paragraphs 6 to 11. This is exactly the sort of thing which the Court of Appeal are deemed to discourage in those paragraphs. They cite the Prudential Assurance case and, picking it up at paragraph 7:

"(reading to the words) alter its judgment before it was initially handed down."

JACK BEATSON QC: I have read this many times since I received it.

MR HUNTER: My Lord, I am grateful. The point is this. The Court of Appeal make it quite clear that once the judgment process has been initiated, that is the point at which extra argument would only be heard in exceptional circumstances. There are no exceptional circumstances in this case. What has happened is that the Council put forward one argument at the first hearing in front of your Lordship and it did not succeed on that, so now it has thought of another one. In fact, it is another one which is inconsistent with what is has said all the way through, and in particular what is said in its response to the form 86A. The position is one has a policy, it is called a policy by everyone throughout, and there is now thought to be a semantic distinction between the bits of it which are in bold and are expressly stated to be policy statements and the rest of it, which I think is described as policy guideline or guideline or whatever, but it does not matter. The fact is that the Council had in its policy document paragraph 6.6 to which we took objection.

JACK BEATSON QC: Yes. I do not want to stop you, but you are really only putting into different words what is manifest in your skeleton. Are there any other points that you would like me to consider?

MR HUNTER: My Lord, there are not. The only document I would take your Lordship to is the one --

JACK BEATSON QC: In bundle E.

MR HUNTER: The only other point is that it is, in my submission, obvious that -- I do not want to argue about the meaning of 6.8 itself, but since it says that the policy statement is adopted in light of what goes before, if 6.6 goes so must 6.8. Bearing these factors in mind, one of the factors which the Council had in mind has gone (inaudible) if it were relevant. I do not have any more submissions.

JACK BEATSON QC: I am grateful.

MR BROMLEY-MARTIN: Your Lordship knows the reference that I make in my skeleton argument to the arguments of Chorion. We maintain very strongly that we have not changed our position so far as this is concerned. It is obviously an oversight that these sections have not been looked at. That is not a change in stance. The reference to paragraph 6.6 in the reply at page 1011, in bundle E -- your Lordship has indicated that your Lordship has been there, so I do not take your Lordship to it -- in fact refers to paragraph 6.6 as a guideline. But, my Lord, this is all use of language. Everybody uses shorthand to refer to this whole document as a policy, and in fact it is headed "Guidelines".

JACK BEATSON QC: "Policy Guidelines".

MR BROMLEY-MARTIN: So, my Lord, the fact that people on some occasions refer to one paragraph as part of the guidelines or part of the policy is, in my respectful submission, really neither here nor there. The point that I am making is that there are two sections which are specifically set out as the policy statement, and all I say at this stage is that there must be a ruling on what they mean, and there must be, therefore, argument about they mean before the court can come to a conclusion about it. Really that is the beginning and the end of it.

JACK BEATSON QC: I am grateful.

Mr Bromley-Martin, on behalf of Westminster City Council, argues that the draft judgment that was sent out last week, and which I was proposing to hand down this morning, errs in not considering the actual words of policy statements in sections 6.8 and 6.12 of Westminster's Policy Guidelines and in expressly dealing in its concluding section only with the wording of section 6.6, which he submits was not a policy statement. This, he submits, has led to an error as to the meaning of the policy, or, at any rate, has led to the fact that the relevant policy statements, as he submits, are not dealt with in the judgment section. He seeks to persuade me to withdraw the draft judgment so that the matter can be reargued and a judgment formed which expressly addresses section 6.8 and section 6.12.

It is clear that there is jurisdiction to withdraw a draft judgment (Prudential Limited v Bains Cooper), but equally clear that that jurisdiction must be exercised sparingly if it is to be done in accordance with the overriding objective of the CPR.

In two Court of Appeal decisions, Stuart v Engel, and the recent case of Royal Brompton National Health Service Trust v Hammond, this is clear, and the outcome is that only in exceptional circumstances, states the Court of Appeal, is it proper to withdraw a draft judgment. I have in mind, in particular, paragraph 11 of the Royal Brompton National Health Service Trust decision, and the final penultimate sentence:

"It must be borne in mind that the practice of handing down judgments was not adopted to encourage or facilitate reopening of issues that were argued."

Mr Bromley-Martin's case is that, for one reason or another, the arguments did not focus on sections 6.8 and 6.12 and that the arguments were therefore not properly before me. Indeed, it was true that there was reference by Mr Gourier in his submissions to 6.8, but the focus of the argument by both counsel was on section 6 of the policy guidelines as a whole.

In the present case, first, the whole document was entitled "Policy Guidelines". Secondly, the policy in section 6 of the guidelines is determined by all its provisions, including section 6.6. It is not the case that only sections 6.8 and 6.12 contain the policy, although those are described as "policy statements" and are set out in bold. Thirdly, the meaning of the policy of the Council which was subject to challenge is to be determined by the actual words of the document, as Mr Bromley-Martin submits in his skeleton. The rejection of Westminster's argument in paragraph 24 of the draft judgment in relation to paragraphs 1.7 and 1.11 of the policy is not a rejection of the argument that the policy had to be read in context, but a rejection of Westminster's argument that the policy did not have the effect that Chorion submitted that it had. It was not argued at the hearing that the policy was only contained in sections 6.8 and 6.12, as I have stated; Westminster's argument was put on the basis that the relevant policy was contained in the whole of section 6 and that it simply did not have the effect that Chorion submitted. Even accepting that the conclusions section of the draft judgment does not deal with Westminster's argument on each subparagraph of section 6, I do not conclude that this justifies my withdrawing the draft judgment and allowing the matter to be reargued, and I point to paragraph 15 of the Court of Appeal's judgment in the Royal Brompton National Health Service Trust case. The fact that not every submission is dealt with in a judgment cannot amount to special circumstances which would require the court to allow the matter to be reopened. The fact that a particular submission is not emphasised as at the core of an argument in the original submissions, a fortiori, is not a special circumstance. If a case is put before the court on a basis, the court can only deal with it on that basis.

I have concluded that, for these reasons, the draft judgment was not looking at the wrong wording and does not construe the meaning of the policy without reference to actual words of the policy. I have made a conclusion as to the meaning of the policy as a whole in section 6 and I have exemplified it by showing how it works in relation to section 6.6.

For these reasons, I do not accept the invitation to exercise my jurisdiction to withdraw the draft judgment and I propose to hand the draft judgment down now.

I anticipate, looking at the time, that we shall not be able to deal with issues of costs today. We will have to adjourn this to another day because the court is, as you know, required at 10.30.

MR BROMLEY-MARTIN: Would your Lordship consider the simple question of leave to appeal?

JACK BEATSON QC: Leave to appeal against what? The judgment that I am about to hand down.

MR BROMLEY-MARTIN: Obviously that will have to be done after your Lordship has handed down the judgment.

JACK BEATSON QC: I will do that. I propose now to hand the judgment down. I have a copy for each of you.

For the reasons stated in the judgment that is being handed down, I grant Chorion permission to discontinue the judicial review proceedings and award costs against the Council. In view of the time this morning I cannot deal with the matters the subject of Mr Hunter's application concerning interim payment and summary assessment.

MR BROMLEY-MARTIN: My Lord, can I indicate, because this can be dealt with, that I do not oppose the application for costs of the application to discontinue.

JACK BEATSON QC: Yes.

MR BROMLEY-MARTIN: So I say nothing about that.

JACK BEATSON QC: In that case I will order that costs are to be paid by the defendant, to be assessed if not agreed.

MR BROMLEY-MARTIN: On the standard basis, my Lord, yes.

MR HUNTER: My Lord --

JACK BEATSON QC: If this is going to take time we will really have to adjourn it.

MR HUNTER: Your Lordship, there are submissions I would like to make about exactly the form of the order and it may be better to adjourn it for half an hour or another day.

JACK BEATSON QC: There is no court available. Was this not made clear to you? There is a shortage of courts.

MR HUNTER: Not in those terms.

JACK BEATSON QC: We had half an hour for this matter. I think we must adjourn this matter. In the circumstances I will also adjourn the matter of permission to appeal.

MR BROMLEY-MARTIN: If your Lordship pleases.

JACK BEATSON QC: Yes.