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 WC2A 2LL
		6th May 2008

1. MR JUSTICE MITTING: By this claim Westminster City Council, as licensing authority for its area, seeks permission to challenge the decision of District Judge Roscoe, given on 9th February 2007, allowing the appeal of Marc Merran against the deemed refusal of an extension of operating hours for three licensable activities at the nightclub known as Movida, 8-9 Argyll Street, London W1.
2. When the Licensing Act 2003 came into force the licence under which the nightclub was operated permitted music and dancing to occur between 9.00 a.m. to 3.00 a.m. on every day of the week. The late night refreshment activity was permitted from 11.00 p.m. until 3.30 a.m. Monday to Saturday and from 11.00 p.m. until 3.00 a.m. Sunday and the sale of alcohol was permitted from 10.00 a.m. until 3.00 a.m. Monday to Saturday and 12 noon to 3.00 a.m. on Sundays. The variation requested by the appellant was as regards music and dancing from 9.00 a.m. until 7.00 a.m., for late night refreshment from 11.00 p.m. until 7.00 a.m., and for the sale of alcohol from 10.00 a.m. to 5.00 a.m. Monday to Saturdays and 12 noon until 5.00 a.m. Sundays.
3. Westminster were deemed to have granted the licence under the new Act on the original terms by dint of their failing to respond at all to the application and to have refused the extension for the same reason. Accordingly, Mr Merran appealed to the Magistrates' Court, hence the appeal before Judge Roscoe. There was no disagreement about the legal test which she had to apply. The three licensable activities were those which I have identified. She, like the licensing authority, was required by section 4 to carry out her functions under the Act "with a view to promoting the licensing objectives", of which the three in issue were the prevention of crime and disorder, public safety and the prevention of public nuisance. She acknowledged that in exercising her functions she, like Westminster, had to have regard to Westminster's licensing statement: section 4(3)(a).
4. The application to vary the premises' licence was made under section 35. The principles to be applied were set out in subsections (3) and (4):

"(3) Where relevant representations are made, the authority must --

...

(b) having regard to the representations, take such steps mentioned in subsection (4 (if any) as it considers necessary for the promotion of the licensing objectives.

(4) The steps are --

(a) to modify the conditions of the licence;

(b) to reject the whole or part of the application;

and for this purpose the conditions of the licence are modified if any of them is altered or omitted or any new condition is added."

5. Section 181(2) provides that on an appeal against the decision deemed or actual of the licensing authority a Magistrates' Court may:

"(b) substitute for the decision appealed against any other decision which could have been made by the licensing authority."

6. The test which the district judge was required to apply, and did apply, can be shortly stated in words very similar to those used by her: would the modification of the licence sought by Mr Merran promote the three licensing objectives which I have identified?
7. The district judge concluded that with the conditions which she proposed to impose the answer was affirmative. The conditions which she proposed to impose were as follows:

"1) Substantial refreshment will be provided at the premises throughout all trading hours, and will be actively promoted by the high visibility of menus throughout the restaurant and at the bars.

2) No drinks promotions save for the provision of free soft drinks in certain circumstances.

3)No food or drinks to be consumed outside the premises.

4) No new entries (other than staff) after 2.15 a.m.

5) The present rules as to entry to remain in force i.e. no entry unless a member and his guest; or entry has been pre-booked at least by 6.00 p.m. that day, giving full details and a guest list.

6) The entry charge to be not less than 20 per cent of the Thursday night minimum spend per person for ordinary club tables.

7) All customers awaiting their car to be brought by a valet to be encouraged to wait within the premises.

8) All customers, or staff, waiting for a cab or other lift, to be encouraged to wait within the premises.

9) On any evening that the premises trade beyond 3.00 a.m., at least one bar will remain open until 5.00 a.m. and there will be a wind down period of at least one and a half hours, this winding down period is part of the trading hours for the purposes of condition 1.

10) During the winding down period the temp of the music played and its volume to be reduced substantially to the extent that for the last half hour it is possible throughout the premises to have a spoken conversation with another at normal speech level.

11) Throughout the night the doorstaff of the club to endeavour to assist the street sweeper and street flusher by encouraging customers to stay inside the club and out of their way and also ensuring that valet parked cars and legal minicabs are moved from Argyll Street and Little Argyll Street as far as possible.

12) For the period between 2.30m and 3.45 a.m. and the period an hour before the premises closes until at least half an hour after, two members of security wearing high visibility jackets to provide a presence in Argyll Street and Little Argyll Street.

13) When the premises close a member of staff will be employed to carry out a litter patrol of Argyll Street and Little Argyll Street and clear them of all litter and detritus."

8. Westminster challenged the decision of the district judge to allow the appeal on those conditions on two grounds. First, it is contended that the conditions are, for a variety of reasons, unenforceable and so ineffective or void. In consequence it is asserted that the basis upon which the appeal was allowed falls away, leading to the conclusion that the decision should be quashed and the whole matter remitted to the district judge for re-hearing. Secondly, it is contended that she did not give Westminster adequate opportunity to address the details of the conditions before she spelt them out.
9. Whether or not that omission on the part of the district judge so vitiates her decision as to permit it to be challenged by judicial review proceedings, it should be stated that where a district judge or Magistrates' Court is considering imposing conditions on the grant or variation of a licence it will almost always be good practice for the conditions under consideration to be outlined for debate by the parties. In that way errors of drafting can be identified, as can improvements, as can, most important, consideration of the underlying propositions behind the conditions themselves. It is unfortunate that that course was not adopted in this case. I say that without any hint of criticism of the district judge, because she was confronted over the course of some 11 days with a changing battle of principle between Mr Merran and Westminster which rightly attracted most of the attention paid to the dispute by the district judge in her decision.
10. As Mr Gouriet for Mr Merran concedes, many of the conditions which are criticised can readily be improved and made clearer and more coherent by redrafting. I will indicate in the course of this judgment suggestions for redrafting that may ultimately find favour with the parties and with the district judge, but before I do that it is necessary to analyse the underlying principles upon which this application must proceed.
11. First of all, permission is required. I grant it. Secondly, before the decision of the district judge to allow the appeal on the basis of conditions can be quashed and the matter remitted to her for reconsideration afresh as a whole, I must be persuaded that the excision or redrafting of the conditions is so fundamental that I would be satisfied that the decision of the district judge to allow the appeal might have been different.
12. I draw that proposition from the words of Mann J in R v North Hertfordshire District Council ex parte Cobbold [1985] 3 All ER 486, as cited by Steyn LJ in R v Inner London Crown Court ex parte Sitki, 20th October 1993 page 9:

"If that which is excised is fundamental ... then it would seem to me to follow that the character of the rest of it would be altered by excision. If excision would alter the substance ... then excision is not permissible."

13. Steyn LJ observed that in applying that test, as restated in somewhat different words by Professor Wade in the sixth edition of his book on administrative law, "cases will be found on both sides of the line." The question here is, on which side of the line do these conditions fall?
14. Two issues were uppermost in the contentions of the parties and in the decision of the district judge. First, the difficulty caused to those cleaning the streets outside the nightclub by the presence of people and cars at the time when the cleaning operations were performed, together with such other nuisance as might be caused by the collection of people and cars there in the early hours of the morning. Secondly, crime and disorder within and immediately outside the club.
15. The district judge noted in paragraph 32 of her decision the respects in which the club was well run and well served by transport links and by the staff within the club. In paragraph 31 of her decision she correctly posed the question whether the licensing objective in respect of crime and disorder would be promoted or undermined by the granting of the appeal. She concluded that the extension of the time during which the late night refreshment was served would by itself promote the objective, a decision which is not the subject of this application and could not be. She went on to conclude, as regards the extension of the time for dancing and music and for the service of alcohol, that the licensing objective would not be harmed by either, but would, coupled with the imposition of conditions, be promoted. Indeed, in one sentence she observed that the extension of the period allowing the sale of alcohol would itself promote that licensing objective.
16. In paragraph 34 she identified the factors, including conditions, which would assist in promoting the licensing objectives. First, later closing, together with the provision of a registered cab service, would permit the staggered dispersal of the clientele rather than the concentrated dispersal at or soon after 3.00 a.m. with the consequence of large-scale attendance of vehicles at that time. Secondly, and for present purposes most important:

"The imposition of a last entry time, together with the existing booking restrictions will give the management greater control over their customers, and, I hope, ensure that they exercise that control fully to reduce drunkenness and bad behaviour without restricting their profits. It will also restrict the possibility of people coming on to this club after other clubs have shut."

That passage referred to the interlocking conditions numbers 4, 5 and 6.

17. The thrust of her decision was that with the imposition of the conditions that she proposed, the licensing objectives would be promoted. She did not in terms identify, nor can her decision be read so as to identify, that any one condition, or any group of conditions, would be relied on principally to promote licensing objectives. They were an interlocking set. Some of them are clearly more important than others. Some are either more precisely identified, or capable of being more precisely defined, than others. But it would be a mistake in my judgment to read the district judge's decision so that the striking down or drastic alteration of any one condition would result in the undermining of her reasoning. She clearly thought, and decided, that the extension of the hours requested, together with conditions of the kind that she proposed, would promote the licensing objectives.
18. In those circumstances, a careful textual analysis of each condition, calculated to result in a conclusion that at a minimum it could be better worded and at a maximum it is not capable of enforcement, would not give fair effect to her decision. On the contrary, it seems to me that to give fair effect to her decision and to uphold the proper concerns of Westminster and the need for conditions to be certain so that the licensee knows what he must and must not do, the conditions should be scrutinised with care and, where necessary, redrafted, but not struck down.
19. I turn, therefore, to the individual conditions themselves. The yardstick to be applied is that set out in the judgment of Scott Baker LJ in Crawley Borough Council v Attenborough [2006] EWHC 1278 Admin at paragraph 7:

"The terms of a licence and its conditions may of course be the subject of enforcement. Breach carries criminal sanction. Everyone must know where they stand from the terms of the document. It must be apparent from reading the document what the licence and its conditions mean."

20. Mr Gouriet in his oral submissions did not attempt to persuade me that which was canvassed in his written skeleton, that the looser test applied to by-laws should apply to licensing conditions. The looser test is to be found in Fawcett Properties Limited v Buckingham County Council [1961] AC 636, in particular in the speech of Lord Denning at page 677 in which he observed:

"I can well understand that a by-law will be held void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning. But if the uncertainty stems only from the fact that the words of the by-laws are ambiguous, it is well settled that it must, if possible, be given such a meaning as to make it reasonable and valid, rather than unreasonable and invalid."

21. The reason is straightforward. The breach of by-laws is punishable by modest fines. Breach of the conditions of a licence is punishable by a substantial fine or six months' imprisonment, or both: see section 136(4). This is ultimately a statute imposing criminal penalties. Conventional and Article 7 jurisprudence requires that it must, as far as possible, be reasonably certain. As Scott Baker LJ observed:

"Everyone must know where they stand from the terms of the document."

22. That observation applies both to the licence holder, to those charged with enforcing the terms of the licence, and, in appropriate cases, to other people who may be affected by it, such as neighbours.
23. Applying that standard, many of the conditions proposed by the district judge fall short. The first and 13th are not criticised and I say no more about them.
24. The second, which prohibits "drinks promotions", is, in my judgment, insufficiently precise. It is easily capable of being reworded by words such as the following:

"No promotional sales of alcohol at a price lower than that at which the same or similar alcoholic drinks are sold on the premises."

Thus redrafted the condition would be certain and capable of ready enforcement.

25. The third condition requires a modest addition for the avoidance of doubt so that it reads:

"No food or drinks supplied on the premises are to be consumed in the vicinity of the premises."

26. Condition 4 requires words to explain what is meant by "no new entries". The following is one form of words that would serve:

"No person may enter the club after 2.15 a.m., other than the staff, who has not already entered the premises that night prior to 2.15 a.m.."

27. Condition 5 requires substantial redrafting. To give effect to that which the district judge intended, the clause must, first of all, provide for the club to have written rules as to entry. Secondly, those written rules must provide that no person may be admitted save: (1) a member; (2) a member's guest; (3) a person who has booked entry before 6.00 p.m. on the night of entry; (4) a guest of the manager or proprietor whose name is entered on a written list kept by the club. I believe that a clause thus drafted would give effect to that which the district judge intended in her differently worded condition.
28. The sixth clause is clear enough as drafted, but it could be made even clearer by providing that the entry charge is to be not less than 20 per cent of the Thursday night minimum spend current on the day of entry, or £20, whichever the greater.
29. Conditions 7 and 8 are perfectly clear and require no redrafting.
30. Condition 9 should be divided into two. The first part, providing for the keeping open of one bar until 5.00 a.m. on any evening on which the premises trades beyond 3.00 a.m, at first puzzled me. But Mr Gouriet has drawn my attention to the sentence in paragraph 31, which I have already set out, in which the district judge expressed the view that the extension of the period allowing for the sale of alcohol would itself promote the licensing objectives.
31. Mr Matthias submits that that provision goes against the grain of advice in the statutory guidance given by the Secretary of State under section 182, to the effect that no licence holder should be required to keep open his premises for the sale of alcohol for the full length of the permitted hours. But, as Mr Gouriet correctly observes, that is guidance which can, in appropriate circumstances, be departed from. The district judged concluded in these circumstances that it should be departed from and I would not suggest that her decision was in that respect irrational. Accordingly, the first part of condition 9, which is perfectly capable of enforcement, is clear and lawful and not irrationally imposed.
32. The provisions for the winding down period, which appear in the second part of condition 9 and in condition 10, are necessarily somewhat vague. It would be possible to provide for precise limits by reference to decibel levels measured at particular places in the club, or, should a lighting condition be attached, by reference to light measurements taken at particular points by a light meter, but that is not the only way, nor necessarily the best way, of stipulating elements of a winding down period.
33. The winding down period itself is recommended in paragraph 2.3.6 of Westminster's own non-statutory guidance. It is clearly an useful concept, which, if conscientiously applied, is likely to result in a lessening of the excitement of those attending the club and in the moderation of their voices on leaving. Accordingly, although it is impossible to provide in precise terms for winding down provisions so that enforcement may be difficult, it is nonetheless desirable that a winding down provision should be included, and that it is so is accepted on all sides. When, as I intend should occur, the matter is remitted to the district judge, she may find it sensible to invite further representations about what should be included in the winding down provision, but the condition which she has drafted, combining the second part of paragraph 9 and paragraph 10, is not so ambiguous as to be worthless or incapable ultimately of enforcement in the case of flagrant breaches.
34. Condition 11 requires modest rewording to make it clear that no obligation is imposed on the licensee which is beyond his powers. The use of the word "ensuring" in the second part of the condition might on a literal reading be thought to require the licensee to do that which he has no power to do, to ensure that cars are moved away from Argyll Street and Little Argyll Street. That possible interpretation arises only from the placing of the phrase "as far as possible" at the end of the sentence and not immediately after "ensuring". A simpler and better answer may simply be to substitute for "ensuring ... as far as possible" the word used in the early part of the condition "encouraging".
35. Condition 12 is the condition which has caused me most difficulty. I am simply not equipped, sitting in the Administrative Court, to determine the debate canvassed in the witness statements and in argument before me as to whether or not the stationing of doormen in high visibility jackets outside the club at the hours stipulated is or is not likely to encourage public order rather than to create difficulties for the police. The police, indeed, appear not to have spoken with one voice about this matter. Two officers have expressed concern about that wording, but one of them wrote a letter expressing satisfaction with the manner in which the premises operated on 8th November 2007, a manner which included fulfilment of condition 12.
36. Accordingly, when the matter is remitted to the district judge, it would be advisable for her to receive submissions from the interested parties, including, necessarily, the police, about that condition, first, as to whether or not it should be included at all, and, secondly, if so, in what form. There are clearly difficult issues of public order which are encompassed in that condition, and, as I have stated, I am not qualified to determine them finally.
37. Applying the tests which I have indicated, this is not a case in which the decision of the district judge should be quashed with the consequence that the hours for licensable activities would revert to their previous levels, but one in which by reason of the shortcomings in the wording of the conditions which I have identified, and the need for further consideration of two of them, winding down and the presence outside the club of highly visible doormen, should be remitted to the district judge for her to determine finally what conditions should attach to the modified licence. In short, her conclusion that the licensing objectives would be promoted by conditions very similar to those which she imposed is unassailable but the conditions themselves require to be re-examined.
38. Accordingly, the outcome of this judicial review is that the conditions upon which the licence modification was granted should be remitted for reconsideration to the district judge.
39. MR GOURIET: My Lord, there is an application for costs. May I give way to Mr de la Mare to make that application? My experience lies more in resisting applications.
40. MR DE LA MARE: My Lord, before I come to the question of costs, there is one minor matter of consequential relief. In the circumstances may I suggest it would be appropriate to stay the quashing of the conditions until such time as the conditions --
41. MR JUSTICE MITTING: I have not quashed them. All I have done is to remit them for further consideration. For the avoidance of doubt, these premises do not operate as from now free of conditions. They are subject to the existing conditions, but I hope in fairly short order they will be remitted for the reconsideration of the district judge.
42. MR DE LA MARE: That is precisely what I was hoping for.
43. As with respect to costs, my Lord, our submission is really simply this. We are the substantial winners and as such are entitled to the presumption that we should obtain our costs. Your Lordship has granted some limited relief, but it is relief entirely consistent with what our clients have been consistently offering, namely a negotiation and discussion as to how the terms, or phraseology --
44. MR JUSTICE MITTING: Where is your letter of 17th May?
45. MR DE LA MARE: Indeed.
46. MR JUSTICE MITTING: Where is it?
47. MR DE LA MARE: Tab 2 -- bundle 2, tab 16. (Pause). 15.
48. MR JUSTICE MITTING: 15.
49. MR DE LA MARE: Bundle 2, tab 15. (Pause). The nub of it is in the second paragraph.
50. MR JUSTICE MITTING: Hold on, my bundle has come apart. (Pause). Yes.
51. MR DE LA MARE: As you can see, my clients suggested that these matters, effectively matters of drafting, could be resolved through discussion between the parties and subsequent application to Westminster City Council for the grant of new premises licence with the agreed conditions included in that application. And they invited Westminster to consider immediately the pursuit of that alternative remedy. Westminster's response is over the page, 21st May 2007. It is a flat refusal. The City Council's position is that the matter could not be resolved by discussion between the parties in an attempt to make those conditions enforceable, because -- as a result of the set of conditions as proposed by the district judge. They were the basis for her decision and in the light of those conditions they are not satisfied that the district judge would allow the appeal. That is the position that has been maintained even up until my learned friend's skeleton argument and until today. If we look at paragraph 19 --
52. MR JUSTICE MITTING: No. There has never been any doubt about Westminster's case. It is that absent the conditions this grant of appeal fails and the matter should be redetermined.
53. MR DE LA MARE: It is actually two stages. Absent the conditions the appeal would fail and the meaning of these clauses is not sufficiently ascertainable for there to be any point in seeking to clarify, so they say, simply put, the conditions cannot be improved so as to be certain. It is that second stage that was abandoned this morning and really has been the fundamental bar to any resolution of the case by means of an alternative dispute resolution process.
54. With the greatest will in the world, while Westminster may think these matters of great importance, and whilst indeed they are, it is axiomatic, both as a principle of licensing law and as a matter of judicial review, that disputes of this kind could and should be resolved in a proportionate fashion, and seeking to improve the drafting by all the expense of judicial review claim forms is not a sensible way to go about this in circumstances where the licensed party has done everything in its power to indicate its amenability to improvements of the conditions. It is simply over the top to bring an application for judicial review in those circumstances. The interested party has indicated a number of procedural routes by which the result your Lordship has arrived at could have been arrived at, by variation review --
55. MR JUSTICE MITTING: Yes, I think some of them were more inventive than others and not all could have succeeded.
56. MR DE LA MARE: Yes, that may well be correct, but the basic position is if the parties had met and had sought to agree workable conditions, those conditions could have been given effect. They could have been negotiated between the parties and they would have been accepted and endorsed by the court by one means or another.
57. MR JUSTICE MITTING: If I were to be with you on this argument, are you inviting me to assess costs this afternoon?
58. MR DE LA MARE: No, my Lord. I am most certainly not inviting you to do that.
59. MR JUSTICE MITTING: I am relieved to hear that. It was actually set down for two days and so does not fall within the one day estimate.
60. MR DE LA MARE: All I invite your Lordship to do is to say that my clients should have their costs and they should be assessed on the standard basis and if not agreed then there should be a detailed assessment of those costs.
61. MR JUSTICE MITTING: Thank you. Mr Matthias.
62. MR MATTHIAS: My Lord, true it is that we have not secured all the relief that we sought, but the suggestion that this could have been negotiated away is sadly very short of the mark. The reality is we instigated judicial review, a consideration of this oral submission, you granted permission and you have afforded us a measure of relief, so that, by dint of the order you will make, this matter will be formally remitted to the learned district judge to reconsider the wording of the conditions and to rework entirely at least two of them.
63. Now, the scheme of the legislation bestows on the Magistrates' Court the task of determining a licensing appeal. It is not open to the parties, after the event when the decision has been handed down, to go away and alter it, and it is certainly not open to Westminster in the light of the decision of the magistrate to go away and alter that decision. That is what has been proposed. This is a difficulty with the various measures that were being proposed. For example, one of the things that is being said is, look, let us agree to some different terms and then we, the operator, will make an application to vary the licence in accordance with the agreed terms. But, of course, once they make an application to vary the licence, the whole panoply of the legislation comes into force and anyone who objects to the variations, or any aspect of the licence, can make representations and then there has to be a hearing and that is a hearing that can be subject to the possibility of an appeal.
64. The fact is it is a statutory system and all the parties are bound by it. The effect of the judgment you have handed down this afternoon, that in fact does -- I am not pretending it is what Westminster wanted ideally, but you have given the parties a real way forward that will resolve -- at least it will resolve some of the concerns that Westminster have regarding these conditions and at least it will leave this licence with tolerably clear and enforceable conditions.
65. Where we failed, my Lord, we failed to persuade you that these conditions were not severable from the decision itself, but we have persuaded you about the problem with the conditions and we have persuaded you that those conditions need attention and you have answered our concerns by saying they should be remitted.
66. With every respect to my learned friend, there is not really a realistic alternative. But they say, well, we, looking at the letter --
67. MR JUSTICE MITTING: Isn't it always open to a licensing authority and a licence holder to agree altered terms, or is there a statutory procedure that has to be gone through before that can done?
68. MR MATTHIAS: To agree altered terms. No, there would have to be a variation.
69. MR JUSTICE MITTING: And that requires a hearing with representations and, if necessary, the convening of a hearing?
70. MR MATTHIAS: Yes. The licensing authority can't cook up a change in the licence with the licensee without reference to the world at large.
71. MR JUSTICE MITTING: Because it is a public function and --
72. MR MATTHIAS: Yes.
73. MR JUSTICE MITTING: -- other interested members of the public are entitled to make their views heard.
74. MR MATTHIAS: My Lord, yes. Still less can we cook up a change to conditions imposed by the learned district judge after hearing a lengthy and detailed licensing appeal.
75. MR JUSTICE MITTING: As the case in which Scott Baker LJ gave his judgment shows, on a judicial review application the parties can agree to vary terms imposed below, subject always and ultimately to the approval of the Administrative Court.
76. MR MATTHIAS: They did in that case. I don't know what mechanism was then adopted, whether that was -- those proposed changes were then remitted to the district --
77. MR JUSTICE MITTING: The mechanism does not matter. A consent order is probably the most straightforward way of doing it, which does, of course, require the approval of the Administrative Court, albeit that is now readily granted in a case such as this where wider considerations are not in play.
78. MR MATTHIAS: What has not been done in this case, for example, by the interested party, the interested party has not said, "We concede that there are difficulties with these conditions, can we propose these changes?"
79. MR JUSTICE MITTING: That is because you were launching a root and branch attack on the decision on which you have lost.
80. MR MATTHIAS: As to the main decision I have lost, yes. But it was open to them, if they truly conceded that the conditions needed to be changed, they could have made a variation application or they could -- that would be one course they could have adopted to be proactive in the matter, or they could have --
81. MR JUSTICE MITTING: That then leaves them open to a further counterattack by you, or by other interested people, saying that the variations are not good enough. They want to conduct --
82. MR MATTHIAS: Yes, it is very difficult. Now that my Lord has considered this matter objectively and determined what changes are required, the way ahead is tolerably clear, but it is fanciful to suppose that it would have been easy to have achieved any accommodation of that kind with a licensee who realistically had the benefit of some exceedingly vague and unforcible conditions. That was a large part of Westminster's concern: the bulk of the work done by the interested party. And, my Lord, you probably have not read all the evidence, but you have got the flavour of it.
83. MR JUSTICE MITTING: I am afraid I think there was a mass of irrelevant material in the documents that I was given.
84. MR MATTHIAS: A mass of work. I know we have filed evidence, but we have not filed anything like as much as they have filed.
85. MR JUSTICE MITTING: I think you are both in the greenhouse.
86. MR MATTHIAS: I am not asking for costs, my Lord, but my friend is asking for costs. A huge amount of the work that they did was directed at establishing that these conditions were certain and enforceable. The concession that my learned friend Mr Gouriet made when he rose to his feet is not a concession that is clear in the papers. This would have been a much simpler hearing. There would not have been any conceivable need for all this evidence if it had been conceded at an early stage that these conditions were uncertain in many respects, defective in certain respects and needed revision. I can readily take you to their evidence if --
87. MR JUSTICE MITTING: No, thank you. I am not going to read evidence that is irrelevant for the main purpose.
88. MR MATTHIAS: No ambiguity. Witness after witness goes through these conditions in a painstaking fashion, explaining why the condition is a fine condition. That is where a great amount of the costs appear on the schedule that you have seen.
89. MR JUSTICE MITTING: I haven't seen any schedule.
90. MR MATTHIAS: It is not being advanced anyway, but suffice it to say that is where a bulk of the work must have been undertaken.
91. MR JUSTICE MITTING: Is there in fact a schedule from which I can discern in a rough and ready way what has been spent on what?
92. MR MATTHIAS: Well, the total, my Lord, comes to some £81,000. £81,222. There is more on a third page. There is a further £7,500.

(Handed)

(Pause)

93. MR JUSTICE MITTING: The grand total is £129,000.
94. MR MATTHIAS: Yes, that third page is not something that had not found its way into my papers. The first two had.
95. MR JUSTICE MITTING: It is obvious there was a third page from the inconclusive ending of the second.
96. MR MATTHIAS: I might have guessed. But it is a large figure, my Lord, for a one day judicial review. If you were against me, in my respectful submission, for the reasons I have already outlined, the appropriate order would be no order as to costs. If you were against me though, I would urge you to limit the recoverable costs to the work involved in -- well, to delete from the recoverable costs, the work expended on establishing that the conditions were valid and were reasonable and certain. I am not sure if I have phrased that very eloquently.
97. MR JUSTICE MITTING: I am not going to set the costs judge a difficult task. I do think that the interested party is entitled to some costs because you have lost on the substance of the claim, albeit that it was in part arguably necessary and you have notionally succeeded on that part. At the moment, persuaded by your argument that the whole of the costs of preparing all of the many bundles of evidence that are contained here should not be recoverable anyway. I have it in mind to achieve those ends by a proportionate order.
98. MR MATTHIAS: So be it.
99. MR JUSTICE MITTING: Mr de la Mare.
100. MR DE LA MARE: Yes, my Lord. Can I address that point of the evidence, because my learned friend seeks to portray the evidence as all going to show that the conditions are absolutely tickety-boo.
101. MR JUSTICE MITTING: That bit you put in to oppose any interim order, staying the -- I am not sure how to put this, but, in effect, temporarily upsetting the outcome of the appeal so that you had to go back to the original licensing conditions before the judicial review was heard, that is legitimate.
102. MR DE LA MARE: Indeed, and that was the bulk of the work.
103. MR JUSTICE MITTING: I am not sure it is the bulk of the work. It is part of it.
104. MR DE LA MARE: What I will say about it is that you must also take account that the evidence performed two functions. The first was to argue the toss whether the conditions had sufficient clarity to be enforceable, but they also provided a backdrop to show what the object of the conditions were. So even if the conditions were insufficiently imprecise as to commend themselves to my Lord, at least you had the material to explain what they were intended to do so that your Lordship could approach the question of severance. You were persuaded by the evidence to the effect that there were good reasons for the imposition of the conditions in question, imperfect as they were.
105. MR JUSTICE MITTING: That is an assertion which is not well founded. I was persuaded by reading and thinking carefully about the district judge's judgment, which, in the end, is just about all that was necessary to decide this application.
106. MR DE LA MARE: I will not argue the point with my Lord. Can I mention that so far as my learned friend contends that the variation process would not work, it would. One needs only to look at the terms of section 31 to see that a variation could be made in writing, an application --
107. MR JUSTICE MITTING: You have shown yourself a willingness without expensive proceedings, without going through them fully fought, to agree to variations in the conditions to make them effective. That is to your credit and deserves to be reflected in the order for costs. But you have spent an awful lot of time and effort on things that are not actually relevant.
108. MR DE LA MARE: The last point I would make, my Lord, is, perhaps, an explanation for that. The beast with which we were faced initially, the quashing of the entire licence, was a serious one. It is a very different result that eventuates. Had we been presented with a claim narrowly formulated, targeted exclusively at the wording of the conditions, and effectively inviting a process whereby they would be reconsidered, I think it is reasonable to anticipate my client's response would have been a very different one as well.
109. MR JUSTICE MITTING: There would probably have been a consent order. There would have been judicial review proceedings but they would have cost, by comparison with the actual cost, next to nothing.
110. MR DE LA MARE: If there is a vice there, it is the numerous ways in which the relief sought by my learned friend has overreached itself.
111. MR JUSTICE MITTING: I order the claimant to pay 50 per cent of the interested party's costs of the judicial review, to be the subject of a detailed assessment if not agreed. I arrived at that somewhat arbitrary figure for two reasons. First, the claimant has in substance won the case. Although I have remitted it for the conditions to be reconsidered by the district judge, the licence is intact. That is what the claimant was seeking to challenge and the interested party to defend, and the interested party on that vital underlying issue has won.
112. Secondly, however, some form of judicial process was necessary before the conditions could be properly cast.
113. There is a third reason, a great deal of time and effort has been spent on the preparation of evidence which has no bearing on the outcome of the review.
114. Accordingly, and for those reasons, and doing the best I can, I arrive, somewhat out of the air, at the figure of 50 per cent. I suspect if I were to do a line by line costing I would arrive at a figure that was not that far out, but neither time nor inclination permits that to be done.
115. Any other matter?
116. MR MATTHIAS: My Lord, may I ask for permission to appeal?
117. MR JUSTICE MITTING: You don't ask me. It is a second appeal. This is wrong -- it was not an appeal by case stated; but I would have refused permission in any event. Thank you very much.