England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		19th March 2004

Friday, 19th March 2004

1. MR JUSTICE GAGE: This is a claim by the Chief Constable of Lancashire Constabulary for an order quashing a decision of the Reedley Magistrates' Court awarding costs to the interested party, a Mr Cairns, against the Chief Constable in a licensing application. The magistrates have not appeared today. The interested party has not appeared but has put in a statement seeking to resist an order quashing the order for costs. In the alternative, the claimant claims an order directing the magistrates to state a case in respect of the order for costs.
2. The history of the matter can be shortly stated. The hearing before the magistrates concerned an application by the interested party for a justices' on-licence in respect of the Netherfield Club. On 9th April 2003 the Chief Constable (as I shall refer to him throughout) filed an objection to the application on grounds that the applicant was not a fit and proper person. On 8th May 2003 the application was heard before the licensing justices.
3. At the hearing the objection was put on two bases. First, evidence was given by a police officer that when the interested party was interviewed he was evasive, hesitant and appeared to make up answers as he went along and gave limited information specifically relating to the purpose and management of the business. That officer was of the opinion that he had been lying. The second basis for the objection was that he was a front man for the previous licensee, a woman called Mrs Rankin, whom the magistrates found during the course of the hearing was not a fit and proper person to hold a licence, nor indeed was her husband, Mr Rankin.
4. The magistrates, having considered all the evidence in the matter, came to the conclusion, as their reasons show, that whilst they accepted that the police officer's perception of the interested party was that he was hesitant, evasive and lying, there was no substantiated evidence for them to confirm that perception. They also concluded that they had heard nothing to suggest that he had not complied with his responsibilities under the licensing laws in the past and that he was connected in any way with the Rankins. Accordingly, the objections were rejected and the licence granted.
5. At the end of the hearing solicitors acting on behalf of the interested party asked for an order for costs. That was granted, the magistrates expressing their reasons in the following terms:

"In reaching our decision, we have taken account of the fact that the application has been determined in Mr Cairns's favour. Our attention was drawn to the case R-v-TOTNES Licensing Justices (1990). However, we are satisfied in this case that the Police had only limited evidence, based on the perceptions of the Police Officer during interview, to support their objections with regard to whether Mr Cairns was fit and proper in himself and their objection based on the fact that he was a 'front man' was brought despite there being a lack of substantive evidence."

They went on to state that they concluded that he should not have to bear his costs and made an order against the Chief Constable.

6. The Chief Constable sought to appeal that order to the Crown Court, but it was pointed out to him that an appeal did not lie to the Crown Court. Accordingly, further representations were made to the licensing justices when they assessed the costs and made an order that the Chief Constable pay the full sum claimed, namely £2,015.56.
7. On 2nd July 2003 the Chief Constable applied to the licensing justices to state a case. On 17th July the justices refused to state a case. Their reasons for doing so were that the application was frivolous and vexatious on the ground that the Chief Constable should have applied for judicial review on the Wednesbury principle of the order for costs, and that that was the appropriate remedy. Accordingly, in view of that refusal to state a case, the application for judicial review was made by the Chief Constable on the two bases to which I have referred. It proceeds now by permission of the single judge.
8. The interested party, in a witness statement filed by his solicitor, makes a number of points which go to the merits of the order for costs, but it starts with a statement that the time for applying for a case stated has passed. The basis for that submission is that the Magistrates' Court Act 1980 requires an application for case stated to be made within 21 days from the decision. That appears in section 111(2) of the Magistrates' Court Act 1980.
9. Accordingly, the first point which Mr Sandiford has dealt with before me is whether or not the application for a case stated was in time. His submission is that time runs from the date of the final determination in respect of costs, namely the date upon which the magistrates assessed costs. In making that submission, he relies on a number of decisions. It is necessary for me only to refer to one of them, that is the decision of Blustarling Ltd v Westminster City Council, a decision of McCullough J reported in the Times Law Reports for 1996, 24th July, at page 457. The judge in that case is reported as saying:

"Any valid order for costs was in two stages since quantification followed the making of the primary decision that an order for costs would be made. In the period between the two decisions the order for payment of costs was not bad but merely incomplete and for the time being ineffective."

He went on to state that the question of whether or not the order was a final order was a question for the court to decide. At the top of page 457 it is recorded that the judge said:

"When such questions arose it was always for the court to decide as a matter of fact in all the circumstances whether or not it had reached a final adjudication."

By that he was obviously referring to the court which had made the order.

10. In this case the point is not taken by the magistrates that the application for a case to be stated was out of time. It would appear that they accept that the final order was the order assessing costs, namely 12th June. If that is right, then the application for a case stated is in time.
11. There are other authorities which suggest that that is the right way of looking at the matter. Accordingly, in my judgment, in this particular case time does not begin to run in respect of the application for a case stated until the assessment of the order for costs, namely 12th June 2003.
12. Accordingly, I go on to deal with the main part of the submissions of the Chief Constable, which is that the court should quash the order for costs on the basis that it is Wednesbury unreasonable.
13. Mr Sandiford has drawn my attention to two decisions: one in this court, one in the Divisional Court. The first is the decision of R v Totnes Licensing Justices ex parte Chief Constable of Devon and Cornwall [1990] 156 JP 587. It is a decision of Roch J (as he then was), in which he stated at page 591 letter E:

"Where, as in this case, the objector the police authority who in good faith is discharging its function in relation to the proper conduct of licensed premises and the justices, as in this case, fully accept that the objection has been properly made, then the justices must take account of both these factors in deciding what order is just and reasonable."

A little earlier he stated the following as matters to be taken into account, at letter C on the same page:

"Such factors emphasise the importance of the police being able to discharge their functions with regard to the licensing laws fairly and properly. Of course, if the evidence indicated that an objection by a police authority to the renewal of the justices' on-licence was misconceived, that is without foundation or born of malice or some improper motive, then it would be just and reasonable for the police to be ordered to pay the costs of the successful licence."

14. That decision was considered by the Divisional Court, sitting on 2nd April 1998, in Chief Constable of Derbyshire v Mr Goodman and Mr Newton, of which the transcript is before me. May LJ, giving the leading judgment of the court, referred to the decision of Roch J in Totness Justices, citing it with approval. May LJ said at page 5 of the judgment:

"It is of course important to say that decisions as to costs are discretionary and that any court or tribunal exercising such discretion is obliged to take into account all relevant circumstances. One such relevant circumstance was that this was indeed a police authority performing a statutory licensing function. This will not be determinative of all cases, but it is important that the tribunal takes into account that, generally speaking, a costs order adverse to such an authority would not be made unless there was some good reason for doing so, which was more than the fact that the other party to the contest had succeeded.

Such an order may be made in the kind of circumstances alluded to by Mr Justice Roch in the Totness Justices case where the authority has not acted in good faith or has run a case which was without foundation or born of malice or of some improper motive."

15. Mr Sandiford submits that in this case the magistrates have erred because their reasons, both in respect of the order for costs and in respect of the decision to grant the licence, does not record anything that shows that the police officers who gave evidence were acting in bad faith or were not bringing a proper objection before the courts. He refers to the passage in the reasons to which I have referred earlier, namely the passage where it is stated that the magistrates accepted that Police Constable Sherratt perceived that the applicant was lying and/or being evasive. He submits it was therefore not open to them to deal with the matter of costs on the basis that there was no proper objection before them. He further submits that the evidence shows that there were a number of matters which might have led the court to believe, if so minded, that he was a front man for the previous licensee.
16. Having considered these submissions, and bearing in mind that the reasons given by the magistrates (at the end of what had obviously been a very long day for them - it appears that their decision in respect of costs was made at 7 o'clock) were necessarily short, in my judgment, it would be neither fair to the magistrates, nor to the interested party, to make a finding here and now that their decision was Wednesbury unreasonable. It does appear from the decision that there are at least grounds for arguing that they had not properly applied themselves to the principles to which I have just referred set out in Totness Licensing Justices and Chief Constable of Derbyshire in May LJ's judgment, but, as I have said, it does not seem to me that it would be fair to quash the order for costs without giving the magistrates a chance to state a case on a fuller basis so that the matter can be fully debated before this court.
17. Accordingly, I refuse to quash the order for costs, but I direct that the magistrates state a case to this court for the matter to be considered.
18. MR SANDIFORD: I am most grateful.
19. MR JUSTICE GAGE: As far as costs are concerned, they ought to be reserved, ought they not?
20. MR SANDIFORD: My Lord, yes.
21. MR JUSTICE GAGE: Very well.
22. MR SANDIFORD: My Lord, may I inquire as to whether there is a timetable for the stating of the case from today?
23. MR JUSTICE GAGE: Now, someone will have to help me. Is that normal? I suppose the answer to that is there ought to be a time. If I were to say 28 days, with liberty to apply for an extension if necessary. Presumably though the Magistrates' Court Rules state the length of the time, do they not?
24. MR SANDIFORD: My Lord, yes, I think it is within 21 days of receiving the invitation to state a case.
25. MR JUSTICE GAGE: I shall say within 21 days of today's date, unless they apply for an extension of time.
26. MR SANDIFORD: Most grateful, my Lord.
27. MR JUSTICE GAGE: Thank you very much.