Neutral Citation Number: [2008] EWHC 2224 (Admin)

CO/3693/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 14 August 2008

B e f o r e:

MR CMG OCKELTON
(Sitting as a Deputy High Court Judge)
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Between:
THE QUEEN ON THE APPLICATION OF MATTHEW PROUD
Claimant

v

BUCKINGHAM PUBWATCH SCHEME
Defendant
MR TONY DISTON
Interested Party
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Mr Adam Clemens (instructed by Radcliffes LeBrasseur) appeared on behalf of the Claimant
Mr Stephen Walsh (instructed by Poppleston Allen) appeared on
behalf of the Interested Party
The Defendant did not appear and was not represented
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J U D G M E N T
1.	DEPUTY JUDGE:  This is a renewed application for permission to apply for judicial review following refusal on the papers by Simon J.  The decision under appeal is said to be a decision of the Buckingham Pubwatch Scheme made on 4 March 2008.  It followed an incident on 22 April 2007, when in and outside a public house in Buckingham, the claimant was or is said to have been involved in an incident.  Following that incident, it is said that publicans in the Buckinghamshire area under the auspices of the Buckingham Pubwatch Scheme made a decision which was initially to ban the claimant from their pubs for life.  Subsequently, that decision was apparently changed and transmuted into a decision that he be banned from pubs in the area of the scheme for a period of three years; that period apparently to be automatically renewed in the case of any further reported incident.  
2.	The Buckingham Pubwatch Scheme itself, although named as defendant, is not represented before me.  Instead, Mr Walsh appears on behalf of Mr Diston, who is currently, as he is described, the person who chairs any meetings of the members of the Scheme when those meetings take place.  Mr Walsh has made submissions on behalf of Mr Diston, but disavows any representation of the Scheme itself.  
3.	Mr Clemens, who has made submissions in support of the application, recognises that he has to deal with two issues as identified by Simon J in the previous refusal of permission.  The principal one to which he has directed most attention is whether this is a case in which the court has jurisdiction to review the decision which I have identified.  He has submitted, firstly, that the Pubwatch Scheme is, in essence, a person ‑‑ an unincorporated organisation of licensees ‑‑ who act as a unit in making decisions, and thus can be regarded both as an authority whose decisions are judicially reviewable, and as a person having functions partly of a public nature for the purposes of section 6 of the Human Rights Act 1998.  He has gone on to submit that the functions of the Pubwatch Scheme are public in nature because they have an effect which derives from a collective responsibility of publicans in the area to ensure that licensed premises are run in such a way as to fulfil the primary objectives under the Licensing Act 2003.  
4.	He has also indicated that the decision made in this case, applying as it does not merely to one public house but to many, is of itself of wider importance and so of a public nature.  
5.	Further, he says that the decision is one which is not effectively challengeable in private law, and that therefore the claimant has no remedy at all, in effect, if this court will not allow him to bring proceedings either on traditional judicial review grounds or under the Human Rights Act.  
6.	The starting point, as it seems to me, must be the starting point identified by Mr Walsh, which is that public houses, despite their name, are private premises.  Every public house is private premises, and the licensee has the licence as permission to sell intoxicating liquor on those premises.  Licensees have obligations under the Licensing Acts, and there are certain criminal offences which may be committed by licensees in certain circumstances.  I refer in particular to the offences identified by sections 140 to 142 of the 2003 Act, which include offences of allowing, as a licensee, intoxicating liquor to be sold to a person who is drunk, and so on.  Licensees as licensees have individual rights over their premises and whom to admit to them, and individual obligations in relation to what goes on in the premises in question.  Those are, as it seems to me, individual rights, and there is no evidence at all that licensees as such have a collective interest in maintaining the objectives of the Licensing Acts, to any greater extent than any members of the public have an interest in securing the general maintenance of law and order.  
7.	It seems to me unarguable but that licensees are entitled to make decisions from time to time as to who they admit and whom they serve intoxicating liquor to, provided of course that there is no unlawful discrimination.  They are required in practice to make decisions ensuring that their own premises are kept and run in an orderly and lawful way.  
8.	It seems to me in those circumstances that it is by no means surprising if licensees in an area want to exchange information.  It is not surprising if they want to take a view that a person excluded from licensed premises by another licensee should be excluded by themselves individually as licensees.  The exchange of information leading up to such a decision does not make an individual decision into a public function.  It affects neither the role of the licensees in making the decision, nor does it affect the decision itself.  The decision itself, however expressed, is one made by individual licensees in each case to exclude an individual from their premises.  It seems to me that, for the reasons given by Mr Walsh, that is unarguably the position.  
9.	The question then is whether, as Mr Clemens submitted, the support or the active intervention of the police authority, the police force or any individual police officers makes any difference.  In my judgment, it is clear that it does not.  First of all, the police are entitled to give support and advice as they think appropriate in the maintenance of public order and the reduction of crime.  Secondly, police have a particular interest in the maintenance of order relating to licensed premises.  It should not be forgotten, for example, that under section 143 of the 2003 Act a constable, if asked, is obliged to assist in the ejection of a disorderly person from licensed premises.  In any event, the support of the police to licensees in making decisions for which, as it seems to me, each individual licensee remains responsible, cannot even arguably convert those individual decisions into decisions of a public nature.  
10.	Both parties before me have referred to YL v Birmingham City Council and others [2007] UKHL 27.  In paragraph 26 of the speeches in that case, Lord Scott, attempting to summarise some of the considerations which would push a decision‑making process over the line from the private to the public, said this about a residential home: 
"My Lords, on both the issues to which I have referred I have reached the same conclusion for much the same reasons as my noble and learned friends, Lord Mance and Lord Neuberger. To express in summary terms my reason for so concluding, Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti‑discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors."
It seems to me that it is appropriate to apply the same views to individual licensees operating public houses in the area of Buckingham, or indeed anywhere else.  
11.	The question of the identification of the proper defendant to these proceedings goes to giving the same answer.  Without wanting to reach a concluded view on whether Buckingham Pubwatch is a person for the purposes of section 6 of the Human Rights Act 1998, it seems to me in the highest degree unlikely that an entity which has, and this is according to the evidence of Mr Diston, no constitution, no finances, no fixed membership, no rules and whose decisions are binding on its members only to the extent that they treat them as binding, on which again there are no rules ‑‑ that an entity of that sort can be amenable to judicial review or can be a person exercising public functions under section 6 of the Human Rights Act.  Not only is there no evidence of a collective responsibility imposed on licensees, but there is, in truth, no collective capable of being described as a decision‑making body, whatever the appearance may be in terms of the documents that emanate from individuals acting apparently on behalf of the Scheme.  
12.	Mr Clemens pressed the point that no private law remedy is effectively available to the claimant, and that if this decision is not justiciable under either traditional principles of judicial review or under the Human Rights Act, then the claimant has no effective remedy.  That may be so: but if it is so, it does not mean that it is justiciable under either traditional judicial review principles or the Human Rights Act.  It may fall, and I consider that this decision unarguably does fall, into an area of life with which the courts do not interfere.  Individuals making individual decisions in relation to their own rights and duties and future conducts are not subject to the Human Rights Act or liable to judicial review, even if they make those decisions together with others.  
13.	For those reasons, I regard the claim as presented as unarguable.  
14.	Mr Clemens did not address the merits, for the reasons I have given, but he did indicate that he took the view that, if I had thought that this was a claim which was amenable to judicial review or to a claim under the Human Rights Act, on the merits the claim was clearly arguable.  On that, I need only say that, given the material now provided in relation to the facts and the availability to the claimant of challenges and about the decision‑making process, I am very far from being persuaded that the merits would indeed be arguable on either of the bases identified by Mr Clemens.  But given my decision as to justiciability, I do not need to reach a concluded view on that.
15.	MR WALSH:  My Lord, I am grateful.  My Lord, I am very conscious of the fact that this is of course a permission hearing, but nonetheless, I make an application for costs, which of course your Lordship would have to summarily assess if, in principle, your Lordship were minded to make the order.  In so doing, I would apply the principles in Mount Cook, which I can pass up to your Lordship.  I put the application for costs on two bases.  First of all, this was a claim ‑‑ I will not use the phrase "hopeless" as it is in Mount Cook, but it was a claim which was original.  It was originally put ‑‑ and I mean that in a respectful sense ‑‑ but it was one which, in my respectful submission, was unlikely to succeed.  It was one in which a very clear indication was given by Simon J of course, and one which was unlikely to succeed, and in those circumstances, under the principles of Mount Cook, I am entitled to ask for the costs on behalf of the interested party of these proceedings.  
16.	The second basis is that your Lordship has produced quite a detailed reasoned judgment, which touches upon the arguments in some detail, and I am just reading from Smith as to the fourth point set out in Mount Cook about costs in these circumstances: 
"whether, as a result of the deployment of full argument and documentary evidence by both sides [which has occurred here, in my submission] at the hearing of a contested application, the unsuccessful claimant has had, in effect, the advantage of an early substantive hearing of the claim."
17.	I am not saying that there has been a detailed consideration of the substantive claim, but nonetheless, the claimant has had the benefit of a very detailed reasoned judgment.
18.	DEPUTY JUDGE:  That is almost bound to be the case, is it not, or where the arguments are based on jurisdiction?  The permission hearing is bound to be, in essence, the hearing of the claim.
19.	MR WALSH:  So I put it on that basis.  Can I say that I do not apply for costs on behalf of the interested party for the acknowledgment of service, for he did not ‑‑ he was not the party who purported to acknowledge service.  He submitted a skeleton argument only after permission was refused and the application was renewed by the claimant.  So the costs schedule, which I will pass up now, which my learned friend has had ‑‑ the easiest way to look at it is the back of the page.  It is in relation to legal costs after permission was refused and after the application for renewal.  I say no more about it than that.  
20.	DEPUTY JUDGE:  Yes, thank you.  Mr Clemens, what do you say? 
21.	MR CLEMENS:  My Lord, can I deal with the point of principle first?
22.	DEPUTY JUDGE:  Yes.
23.	MR CLEMENS:  My Lord, in my submission the normal rules apply to defeat this application for costs, in particular because Mr Diston is an interested party.  He need not have attended, and the submissions that were made by Mr Walsh, eloquently as ever, have not really advanced the case from the defendant particularly.  The jurisdictional issue is one that I would have had to have dealt with come what may.  My Lord, the starting point is, is it not, and I will take you to the CPR if necessary, that the successful defendant or successful party at permission will not have anything but their acknowledgment of service costs unless there are exceptional circumstances.  That was reaffirmed in the latest practice note, Davey v Aylesbury Vale District Council [2008] 1 WLR 878, albeit that really deals with it from the back end of the conclusion of a case as to what order can be made on the resolution of the claim as a whole.  
24.	My Lord, in my submission, no exceptional circumstances arise.  This was a case, in my submission, properly pursued, and properly pursued in this sense: it would be very different if the claimant in the grounds had hidden and ignored the jurisdiction point, but you know that the claimant from the off was alive to the point.  It was argued closely, and the claimant was always aware of the need to get over the jurisdictional threshold.  So, in my submission, it is hardly a novel point, because as you rightly identified there are factors here where there has been an element of police involvement, albeit not sufficient to amount either to a factor or to one that would take it over the dividing line, but it could hardly be said to be a case brought without any prospect of success whatsoever.  
25.	My Lord, for those reasons, I will develop them if necessary, as it were, if you were strongly against me, but in my submission one goes back to first principles, and as an interested party, Mr Diston of course is, as it were, slightly lower down the scale than a defendant.
26.	DEPUTY JUDGE:  My difficulty with accepting those submissions in the way in which one might be inclined to accept them in a different case is that much of the difficulty which you have had in this case, and which, I think it is fair to say, you and those instructing you knew you were going to have, is identifying a proper defendant.  It seems to me that if a defendant of substance had been originally identified, there would probably have been a substantive acknowledgment of service containing much of the material that I have heard today.  The truth of the matter is that the interested party in this claim has provided argument and information which I do not suppose you would want to say has not assisted me.  These proceedings were brought on the basis of the risk of costs if they were unsuccessful, and what essentially you may be asking for is a windfall on costs on the basis that you chose, in what I acknowledge was a perfectly reasonable choice, a defendant, who actually was itself not capable of defending, and that therefore the responsibility fell, as I think I would have to say in my judgment it was bound to do, on an individual who was able to emerge to do something about responding to the claim.
27.	MR CLEMENS:  My Lord, I am not certain that I really see the analysis on that basis.  If the defendant is properly identified, then it is rather like the sort of affiliation cases that one sees ‑‑ the FA is a classic example of this: you have a named person against whom a judgment or an order may be enforced against a named officer, but the claim is properly brought against the affiliate body.  On the face of the evidence that we had until Mr Distin's statement of a few days ago, or whenever it was, the evidence is that it is a collective body that has a affiliation, for instance, with Aylesbury Vale.  So the defendant, in my submission, is properly identified.  It is whether, in those circumstances as it were, Mr Diston, as the person who chairs the meetings ‑‑ I used Mr Walsh's phrase ‑‑ does not, as it were, achieve any greater status above and beyond an interested party than he otherwise would, and in those circumstances, my Lord, it seems to me that one ought to be even slower to make an order in principle for costs in his favour.  But I come back to my primary submission, which is that the starting point is that the defendant will only get their costs of what are now called, as a result of Davey v Aylesbury Vale, when Sedley LJ distinguishes between acknowledgment costs and preparation costs, and there would have to be very good reasons shown at the end of the case and now, given the way that you have ruled on it, exceptional circumstances to justify a costs order being made in favour of the defendant.  I do not go so far ‑‑ of course, it would be churlish to say that Mr Walsh has not been of any assistance to the court, but in the way that your Lordship framed the judgment and took me to task on the jurisdictional issue, that is something I have known I have had to meet anyway.  It is something that you were bound to discuss with me and press me on, and on that issue, I am not certain that anything that he has contributed has materially affected that.  
28.	DEPUTY JUDGE:  Mr Walsh, do you want to add anything? 
29.	MR WALSH:  Only two very brief points: one is on the question of whether it is right to award costs for an interested party in these circumstances.  Of course, if the defendant had been a body which was either represented or capable of representation, and I was here making the same representations as that defendant, then no doubt your Lordship, even if you were minded to make an order for costs, would only have made one order: I might not get them.  But if the only party who is here, whether it be the defendant or the interested party, is the only party presenting submissions, then that party in general terms is entitled to the costs.  I will just say this: my learned friend mentions as a classic situation the Football Association, where you have to identify a person, but just looking at the headnote for the cases, divider 19, but I need not take your Lordship to it, both the Football Association and the Football League are limited companies, and as such are corporate persons and identifiable as such, but I have not ‑‑ 
30.	MR CLEMENS:  I do not mean to mislead, I was talking about ‑‑ you get county affiliates all around the country that are not an incorporated body.
31.	MR WALSH:  Forgive me.
32.	DEPUTY JUDGE:  Mr Walsh, I wonder whether you can assist me on this: who responds when things are sent to box 228 at Aylesbury? 
33.	MR WALSH:  I will take instructions. (pause)
34.	At present, Mr Diston does.
35.	DEPUTY JUDGE:  And before that, presumably the then Chairman of meetings of the Pubwatch? 
36.	MR WALSH:  Yes.  I have to say my instructions are that it is a police box, and what happens is that it gets passed on.  I was not going to mention it, but I have just received that instruction.
37.	DEPUTY JUDGE:  It is described as a Post Office box.
38.	MR WALSH:  I may need to take further instructions.
39.	DEPUTY JUDGE:  The point is simply this: you come here instructed by solicitors, I take it, acting for Mr Diston; you make submissions as an interested party.
40.	MR WALSH:  Yes, my Lord.
41.	DEPUTY JUDGE:  In effect, you have been acting as the defendant, and although if my decision had been different, there might have been consequences as to exactly who the defendant was, in the circumstances of today's application, you have been defending it.
42.	MR WALSH:  Yes.
43.	DEPUTY JUDGE:  Now, if I were to take, as it were, to your advantage that role, I would then say, would I not, probably, that you could have the costs of the acknowledgment of service but no more? 
44.	MR WALSH:  Indeed so, my Lord.
45.	DEPUTY JUDGE:  And if I take that to your advantage on the basis that a person who was at any rate capable of responding was served with the claim, and that in the end it is exactly that person who defends it, I would surely apply the principles as to costs on exactly that basis ‑‑ omitting all difficulties about precisely who you are and why are you are here, saying if you are effectively the defendant, you were indeed served with the claim form, you could have had your costs of acknowledgment of service but no more.  Now, you do not seek costs of the acknowledgment of service, you only seek the more.  You did put in the document called "rider A", which gives the details of the incidents and a few other facts, but nothing much by way of response to the arguments put by the claimant.  If you were able to make an application for the costs of the acknowledgment of service, I might well be able to make an order for that, but as I understand it you are not because at that stage Mr Diston was acting in person, I take it, from the form of the documents.
46.	MR WALSH:  The acknowledgment of service was indeed Mr Diston at that material time.  Mr Diston at that time, or at least the time of the incident, was not the Chairman.
47.	DEPUTY JUDGE:  But at the time of the issuing of proceedings he was.
48.	MR WALSH:  That document was submitted to the court without legal assistance.
49.	DEPUTY JUDGE:  Yes, which is one quite good reason why it does not carry an application for costs.
50.	MR WALSH:  Yes.  I did not want to put myself in the position of defendant now, if your Lordship follows me, having argued prior to your Lordship's decision that I was not.  I did not want to take advantage of that just for costs purposes, but in effect those who appear on behalf of Mr Diston have stood in the shoes of ‑‑ 
51.	DEPUTY JUDGE:  Yes.  From the point of view of costs, your position is better if you are the defendant rather than the interested party.  It seems to me that even if I treat you in that better position, bearing in mind the acknowledgment of service position, you are not very well placed to seek the costs of attendance.  I see you reaching for commentary on Mount Cook again.
52.	MR WALSH:  All I seek to do is rely upon it.  I know that your Lordship is very familiar with it, but it might help because it is put in a much more eloquent way that I ever can.  Before your Lordship reads that, especially the footnote at 283, the reason why my application is made for the purposes of this hearing is that which is indicated as ground (d) as one of the exceptional circumstances, which of course includes the hearing itself and the resultant judgment from it.  So perhaps it is best if I leave your Lordship to read it.  (pause) 
53.	DEPUTY JUDGE:  The general principle is, as Mr Walsh recognises and as Mr Clemens insists, that costs are available in proceedings of this sort for the preparation of the acknowledgment of service, but not for appearance even in successful defence of a renewed permission application.  The reason for that is that matters should be dealt with as early as possible, as clearly as possible and as inexpensively as possible.  Mr Walsh reminds me that one of the exceptions to that principle is where there has been exceptionally full arguments with deployments of authorities and documents to the extent that the matter has been dealt with on the permission application almost as though or indeed as though it were the trial of the action.  As I remarked during the course of his submissions, that is likely to be the case where the issue is as to jurisdiction.  Nevertheless, the position as I see it is that the acknowledgment of service failed to deploy any of the arguments of substance which have been deployed before me today.  If those arguments had been deployed in writing with anything approaching the clarity with which Mr Walsh has deployed them today, then the course of these proceedings might well have been entirely different.  Mr Clemens has made his arguments, as he was entitled to do, without any substantive written response in advance at the acknowledgment of service stage.  
54.	For those reasons, I shall make no order as to costs, there being no application for costs for the preparation of the acknowledgment of service.  Thank you both very much indeed.