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
		25 November 2008

1. MR JUSTICE CHARLES: I have before me an appeal by way of case stated against decisions reached by the North East Suffolk Magistrates' Court.
2. The errors of law alleged to have been made relate, in broad terms, firstly to matters which were treated by both parties and the magistrates as a preliminary issue or issues, and secondly as to the conclusion of the magistrates on to costs. I say now, so that the parties do not have to listen trying to guess the result, that I am going to dismiss this appeal.
3. The background to the proceedings before the magistrates was a notice served under section 80 of the Environmental Protection Act 1990 in respect of an asserted noise nuisance. That notice is dated 3 September 2007 and was served on a company called Witham Oil & Plant Limited at an address, Outer Circle Road, Lincoln, LN4 HL. That, as I understand it on the evidence, is the correct company name of the holding company within the Witham group of companies. It has a number of subsidiary companies, and the subsidiary company I am concerned with is a 100 per cent owned subsidiary company which is called Witham Oil and Paint (Lowestoft) Limited.
4. The matters to which the notice relates concern factory premises in Lowestoft, which are occupied by the subsidiary company as the tenant of the holding company. The holding company being the freehold owner of that land. As I understand it, the registered office of the subsidiary company, albeit not its trading address, is also the address in Lincoln rather than its trading address in Lowestoft. These are private companies run by two families, and members of certainly the Bottom family, who have put in evidence, are directors of both companies. The trading company is the subsidiary company or the tenant, and I shall refer to it in that way or as Lowestoft, and the landholding company is the parent company, and I shall refer to it in that way or as Lincoln.
5. The factory is in an industrial area. There was some dispute before me as to precisely the proper description of that area and how close, for example, to the docks the factory was -- a surprising dispute given the ease by which that could be identified. But, in any event, it is not in the heart of the countryside.
6. The background information makes it clear that the Council, acting in performance of their statutory duties, were prompted by complaints by people in the neighbourhood, and investigated the noise emanating from the paint factory, which needs to work a 24-hour day to enable it to produce its product. Therefore, noise continued day and night. The premises are not modern premises, and there is potential for alterations to be made to them to abate noise.
7. The notice required the recipient of it to cease using the paint mixing mills between the hours of 10.30pm and 7.30am, or to take other steps as may be necessary to reduce the noise level to what I understand to be a low noise level during night time hours. This notice was posted to the Lincoln address which is the registered office of both companies. There was evidence before the magistrates that the notice was also handed to officers of the subsidiary company at the premises of the subsidiary company. There can be no issue that, through that process and indeed through the very fact of the group structure and the overlap between the officers of the group, and the close interest that the holding company must inevitably have in the trading of the subsidiary company, that the relevant directors of both companies knew all about the notice. That is quite clear from the evidence they put in before the magistrates, and there was an area of common cause between the companies to, if I can put it this way, fight the notice.
8. Equally, looking at the background, there is potential for different issues to arise from the perspective of the trading company as the tenant as to what it would be empowered to do to the property, and the holding company as the landlord as to what it could do or might be compelled to do to the property. In many ways, distinctions between landlord and tenant in the context of these companies are artificial given the fact that the tenant is a 100 per cent owned subsidiary of the landlord. That is demonstrated in the evidence by, for example, a rent holiday given to the tenant by the landlord as part of its trading history. But just looked at generally, there is certainly, in my view, the potential for issues relating to the notice, and perhaps in particular as to what can be done about it and the economics of abating it and liability for its breach arising for both freeholder and tenant. It is also clear as a matter of background that the trading company is the tenant, and it is the tenant as that corporate legal entity which would be responsible for making the noise. The board of the subsidiary is responsible for its management but ultimate control can be said to vest in the parent because of its ability to change the board, and thereby procure that the subsidiary acts in a particular way. Whether this ultimate control was relevant was not raised before me or as I understood it the magistrates.
9. Following the receipt of the notice, it is clear, on the evidence before the magistrates, that discussions took place between representatives of the Council and representatives of the tenant company. It is also clear that at an early stage, as the magistrates found, and at the latest, it seems to me, by the time of effectively a directions hearing, the point had been flagged up that the company identified in the notice was the parent and not the subsidiary.
10. The parent company issued the summons, being the company named in the notice, so the combination of those matters indicate that the confusion and potential for confusion as to which company is being named in the notice and which company is being served is flagged up. So issues arose as to service and who is the company named in the notice, and thus who is the company potentially criminally liable under the relevant provisions of section 80, rather than in respect of knowledge on notice. The stance taken by the Council was not: "Well, everybody knew that we were serving the tenant", and therefore the subsidiary should have issued the summons and the notice should be construed as one to the subsidiary albeit that it clearly relates to the premises in Lowestoft, not premises anywhere else.
11. The additional grounds, headed: "Further particulars of grounds of appeal" have four grounds in them, headed:

"Ground 1 - the abatement notice is not justified by S80 EPA.

Ground 2 - the authority refused unreasonably to accept compliance with alternative requirements or that the requirements of the Abatement Notice are otherwise unreasonable in character or extent or are unnecessary.

Ground 3 - where the nuisance to which the notice relates is a nuisance falling within S79(1)(g) that the best practicable means were used to prevent, or to counteract the effects of the nuisance."

Ground 3, on its face, goes back to a statutory ground and to a point I have already mentioned as to economic and practical means of dealing with the alleged nuisance.

12. The fourth ground is the point as to the identity of the company served:

"Ground 4 - the Abatement Notice should have been served on some other person than the appellant, being the person responsible for the nuisance."

It is relevant and important to consider the Regulations. These are the Statutory Nuisance (Appeals) Regulations 1995 (SI No. 2644). Paragraph 2 deals with appeals under section 80(3) of the 1990 Act, which is in terms that a person served with an abatement notice may appeal against the notice to a Magistrates' Court, and a period is given. The corporate person who issued that summons was the parent company, indicating that the notice was being treated as a notice served upon it. As I have indicated, its name was used in the notice.

13. Regulation 2 provides for grounds of appeal, including sub-paragraph (e), which refers to the best practical means used to prevent or to counteract the effects of the nuisance. Sub-paragraph (h) is in the following terms:

"(h) that the abatement notice should have been served on some person instead of the appellant, being—

(i) the person responsible for the nuisance ..."

14. Then there is ground (i):

"(i) that the abatement notice might lawfully have been served on some person instead of the appellant being—

(i) in the case where the appellant is the owner of the premises, the occupier of the premises ..."

15. Then the final paragraph of that is:

"and that it would have been equitable for it to have been so served."

16. It seems to me that grounds of appeal in this case could have been put under sub-paragraph (h) or sub-paragraph (i), the effect would have been much the same. I was told that in an initial letter relating to the appeal, it was categorised under sub-paragraph (i). Later it seems that it was looked at as being under sub-paragraph (h).
17. Regulation 2(3) provides:

"(3) If and so far as an appeal is based on the ground of some informality, defect or error in, or in connection with, the abatement notice, or in, or in connection with, any copy of the notice served under section 80A(3), the court shall dismiss the appeal if it is satisfied that the informality, defect or error was not a material one."

Regulation 2(4) provides:

"(4) Where the grounds upon which an appeal is brought include a ground specified in paragraph (2)(i) or (j) above, the appellant shall serve a copy of his notice of appeal on any other person referred to, and in the case of any appeal to which these regulations apply he may serve a copy of his notice of appeal on any other person having an estate or interest in the premises, vehicle, machinery or equipment in question."

Sub-paragraph (5) provides:

"(5) On the hearing of the appeal the court may—

(a) quash the abatement notice to which the appeal relates, or

(b) vary the abatement notice in favour of the appellant in such manner as it thinks fit, or

(c) dismiss the appeal;

and an abatement notice that is varied under sub-paragraph (b) above shall be final and shall otherwise have effect, as so varied, as if it had been so made by the local authority."

18. Following the preliminary hearing I have referred to, evidence was put in by both sides. That included evidence from officers of the companies, evidence from officers of the local authority, and expert evidence. The preliminary hearing identified that there was a need for a five-day contested hearing. It is completely apparent from that that both parties were then proceeding on the basis that there was going to be a fight on the merits at the relevant hearing. It is also clear that, at that time, it was flagged up that a point would be being raised that the notice had been served upon the landlord rather than the tenant, who was the trading company. Those were the battle lines in the quasi pleadings that existed between the parties relating to the appeal.
19. Both parties were represented by counsel before the magistrates. The magistrates were invited, and agreed, to deal with some points as preliminary issues. They record in the case stated that, prior to the hearing, they had read the documents provided to them. The preliminary issues that they addressed were: (a) whether the abatement notice was incorrectly addressed; (b) whether the abatement notice had been served on Lowestoft as opposed to Lincoln; (c) whether such defects in the abatement notice and service of it was such as to constitute material defects. They answered that in the following way:

"(a) Yes. The notice was incorrectly directed to [Lincoln];

(b) No. The notice had not been served on the correct company.

(c) Yes. The incorrect identification of the 'responsible person for the nuisance in the notice was a material defect invalidating it'."

20. In reaching that conclusion, they set out the facts which they found. In that context in the case stated I should refer to the following of those:

"(B) It was accepted that the notice served by the Council was served on [Lincoln] and not on [Lowestoft].

(C) No notice was served upon [Lowestoft] until 12 May 2008 four days before the hearing of [Lincoln's] appeal and that notice was not the subject matter of these proceedings. [The Council] chose, by issuing a second notice against [Lowestoft], to cause fresh proceedings to be instigated in which it and [Lowestoft] are the only parties.

(D) Lincoln own the premises ...

(E) Any alleged nuisance that may have been caused was caused by [Lowestoft].

(F) Section 80(2)(a) requires that, except in limited exceptions, any abatement notice [is] to be served on the person responsible for the nuisance.

(G) None of the exceptions applied and the notice should therefore have been served on [Lowestoft].

(H) [And importantly in the context of the argument] We had no power under the Environmental Protection Act 1980 or the Statutory Nuisance (Appeals) Regulations 1995 to amend the abatement notice.

(I) It was not argued before the court that the abatement notice was without defects or that defects were not material. The Council's barrister conceded that the abatement notice being appealed was defective because it named the wrong party and that unless he was able somehow to amend it to substitute [Lowestoft] the appeal must succeed. He therefore accepted that there was a material defect in the abatement notice. We found that the defect was material in that the wrong legal entity had been served. [The Council] at this stage in the proceeding withdrew and the case was adjourned until 19 May ..."

I should say that the first day was on 16 May, which was a Friday; 19 May was a Monday.

"(J) On 19 May 2008 all of the appellant (Witham's) evidence was heard. It was accepted by the Council's counsel as being admitted before the court. Counsel for Waveney District Council helpfully on 16 May 2008 put into writing that it did not oppose the admission of the appellant's evidence. Waveney District Council chose not to call any evidence. On that basis, findings of fact were properly made by the court on the unchallenged evidence of Witham's witnesses. The abatement notice was quashed.

(K) On 20 May 2008 we considered an application for costs. Both parties were present. The Council did not oppose (in principle) the application for costs in favour of [Lincoln] [and then reasons are given relating to costs]."

21. To my mind, in considering whether a Magistrates' Court have erred in law, it is important to have regard to the issues that were placed before it. I was referred to a passage noted in the CPR from a judgment of May LJ relating to an approach in civil proceedings, that the parties are to identify the issues. But on an appeal, it is certainly open to an appellate court to permit other issues to be argued. Whether it does so or not is an aspect of procedural fairness and thus whether or not it is fair to do so in all the circumstances. Fairness is a two-way street. The issue must be looked at through the eyes of both parties.
22. Returning to the Regulations, it seems to me that Regulation 2(3) is directed to a ground of appeal raised, and if that ground is not substantiated on the basis that the informality, defect or area is material, the court dismisses the appeal and the notice stands. It is not, as a freestanding regulation, capable of adding a party or person to the relevant notice. It is certainly not capable of adding a claimant to the proceedings, it being pointed out to me that proceedings are started by the recipient of the notice as the claimant.
23. Sub-paragraph (4) refers expressly only to (2)(i) and (j) and not (h). As I have indicated, in my judgment (i) could apply to this case and, as I understand it, was initially so identified -- possibly by typing error. Whether or not that procedural requirement applied in this case, it is quite apparent that both landlord and tenant knew all about these proceedings, and no effective prejudice would be suffered by the tenant in being joined into the proceedings at an appropriate stage. The companies were speaking essentially with common voice on the issue relating to the merits.
24. Sub-paragraph (5), to my mind, is directed to an issue which arises at the end of the process, in other words after the court has heard the relevant appeal. This is because it is directed to the final order that the court makes on that appeal. It reflects the result: either the abatement notice will, for example, be quashed or the appeal will be dismissed and the abatement notice will simply stand, or the abatement notice will be varied and will take effect in that varied form. It is plain that that power to vary would relate to the requirements set out in the notice. The question is whether or not it would enable the notice to take effect as if it had been originally served on somebody else in substitution for the person named in it, or on somebody else in addition to the person named in it. To my mind, as a matter of language, the Regulation is capable of having that width. It seems to me also that, read within the context of the Regulations, and in particular sub-paragraph (4), it should be so construed, because if the person brought into the appeal under (i), as might have been the case here, is the tenant, it is that route which it seems to me the Regulations provide to enable both landlord and tenant to be the subject of the final notice, or just one of them. If the correct analysis is that it is under sub-paragraph (h), then issues of procedural fairness would arise to ensure that, before a notice was varied so as to render a third party criminally liable for its breach, that party has had a full and proper opportunity to be heard.
25. The question posed in the statement of case, it seems to me, emanates from the matters raised by the Council, and in form is limited to the following questions:

"Did we err in law in concluding that we had no power to allow the amendment of an abatement notice under Regulation 2(3)?

Did we err in law in concluding that the defect in notice was a material one?

Did we err in law in making a costs order in the terms we did?"

26. Looking first at the second of those questions, in the way in which this case was presented and given the concessions made by the Council, it seems to me that the magistrates did not err in their conclusion that the error was a material one. This is because the argument was not being presented in a way in which it was being asserted that everybody always proceeded on the basis that the notice was in fact served on the tenant. That was not the way in which it was put. The way in which it was put is: "We need to change the notice to include either in addition to the landlord or in substitution for the landlord (and that seems to have been the approach taken) the tenant". That is, as was accepted by counsel before the magistrates, a change that was needed because of a material defect in the notice as drafted and served.
27. The next question is: "Did we err in law in concluding that we had no power to allow the amendment of an abatement notice under Regulation 2(3)?" Looked at as a freestanding question, to my mind it is plain that that would not be an error. There is no power, looking at Regulation 2(3) on its own, to do that. It would seem that that is the way in which the matter was put to the magistrates because of their cross-references to the relevant Regulations and statutory provisions. Although the statement of case was amended, no point has been put that the argument that has been advanced before me was advanced before the magistrates.
28. However, in their findings they say under (H) that:

"We had no power under the Environmental Protection Act 1980 or the Statutory Nuisance (Appeals) Regulations 1995 to amend the abatement notice."

It is said that that is an error, following the line that I have just referred to, in construing the Regulations. But to my mind, in the context of this appeal, it has to be remembered that this was being put by both sides as a preliminary point. My conclusion is that, at the end of a full hearing, there would be that power, not as a preliminary point, because as a preliminary point by definition you are not making a final order unless you confine it to the issue relating to the identity of the company served, and that certainly was not the position of the parties at that stage.

29. In my judgment, given the way in which this matter progressed, it would be unfair to allow the introduction of a new argument at this stage in the context of a preliminary point. On my construction of the Regulations, as a preliminary point, the magistrates did not have power, and certainly not a power that was properly exercisable at that stage to amend or vary the notice. To my mind, they did have the potential for varying or amending the notice at the end of the hearing.
30. In this context, it is important, in my judgment, to remember the progress of events at the hearing. Surprisingly, there was some debate before me as to whether or not the Council attended through counsel on days 2 and 3 of the hearing. I was informed by counsel who appeared for the companies, and certainly have no reason to doubt what he says, that his recollection is that the Council were present, as was their counsel. Counsel for the local authority was not present below and did not have instructions today as to whether or not the Council were present. However, what is abundantly clear from the case stated is that, albeit the preliminary point had gone against the Council, the magistrates were minded to go on to consider the full grounds in the amended particulars, and thus to go on and consider the underlying merits.
31. As I have indicated, looked at from both sides of the street -- that is from the company perspective and that of the Council -- the merits were the merits. They had both put in their evidence as to whether or not there was a nuisance by way of noise, as to whether or not it should be properly abated, et cetera. It is quite clear that the process and procedure adopted by the magistrates was that they would deal with those merits, and they did so, with the Council taking no objection to that course and taking no part in that process.
32. Thus, as recorded in the case stated, evidence was considered by the magistrates over the ensuing day and a half relating to noise level, et cetera. In that context, the Council put up no fight but did not formally give up. The landlord company was the company then proceeding. It clearly, to my mind, had an interest in proceedings, albeit not the company actually committing the alleged nuisance, both from its interest in its subsidiary, but also and importantly because it was the freehold owner of the premises and might be one of the parties who would have to expend money in putting the premises in a state so as to avoid a continuing nuisance.
33. In that context, I accept the submission made by counsel for the companies that the potential gap in the legislative scheme, which focuses attention on whether or not there was a nuisance at the date of the notice in cases which have complications can sensibly and practically be filled by having evidence focused upon that inevitably historical date, and evidence focused at a time which takes account of any changes that have been made by the relevant persons in the abatement of the nuisance, because that goes to variations which could be made in the abatement notice following the hearing before the magistrates. Thus, for example, if magistrates were to conclude that the noise level set in this notice for the period of the night was too low, that could be altered, both in the context of whether or not there was a nuisance, and in the context as to economic and practical steps to deal with noise and in the context of changes since the service of the notice.
34. This is relevant, it seems to me, because the Council, as recorded by the magistrates, very shortly before the hearing saw fit to serve another notice on the tenant. That related to a date on 12 May 2008, and therefore was based on up-to-date evidence. The expert relied on by the company dealt with the up-to-date position by way of an addendum to his report, so I was told and so I accept. It was pointed out to me by the present counsel for the Council that there was risk in having regard to matters not put into the statement of case, but it is apparent from the statement of case that the magistrates felt able to make a finding of fact, which they did make, that there was no nuisance being committed as at May 2008, and it is therefore quite apparent that they had evidence upon which they considered they could reach that view and the contrary is not being asserted.
35. Therefore, what the local Council must have been aware of was that the magistrates were proceeding to determine the underlying merits set down for a five-day hearing on contested evidence as to whether or not there was a nuisance. There were the other issues I have mentioned, and for reasons of their own, the Local Council simply decided to take no active part in that exercise. It is submitted, eloquently and doggedly on behalf of counsel for the local Council today, that the essential reasoning for that was the preliminary conclusion reached and the point that the Council were alert to the fact that the tenant was the company responsible for the nuisance. He argued that the preliminary point really put an end to everything so far as the Council were concerned, and therefore there was effectively little or no point in them continuing to take part.
36. I would not dispute that that was no doubt a factor in the reasoning of the local Council and its advisers, but what it did not lead them to do was simply to say: "As against the landlord, we will not be taking these points and it is pointless for the court to consider and determine them". Nor did it seek an adjournment, on payment of the costs wasted thereby, or otherwise, to enable the points to be considered in respect of both notices.
37. The Council were fully aware that the court were continuing to deal with the merits against the background of the preliminary conclusion it had reached as to amendment of the notice, which is the way in which the preliminary issue was put. That course was a litigation decision which they took which they must take responsibility for. The result of it was, as I have indicated, that on the basis of the five-day estimate for the determination of the merits the court heard the evidence. The Council had a full opportunity, if they had exercised it, to argue the underlying merits, but chose not to do so, and lost on all fronts on the underlying merits.
38. If at that stage one then returns to the exercise of the discretion under the Regulations as I have found it to exist, the boot would be likely to have been on the other foot, namely the companies would have invited the magistrates to amend the abatement notice to include the tenant and then to quash the notice. That would be an end of the matter.
39. In those circumstances, in my judgment, it would be unfair to take the approach that is now urged on me by the Council, to say that, due in large measure to deficiencies in the way in which the argument was put to the magistrates on behalf of the Council, in making the generalised assertion I have referred to in sub-paragraph (H) of the findings, they erred in law. Rather, in my judgment, the fair course is to look at the issue that was actually before the magistrates at that stage and ask and answer the question: did they err in law on the issues put to them? For the reasons I have given, my answer to that is no, they did not.
40. I am not asked to send matters back to the magistrates in the context of an error at the end of the day. That is understandable so far as the Council is concerned because any such amendment would, it seems to me, make the proceedings relating to the later notice an abuse of the process. There are also real difficulties so far as those later proceedings are concerned given the findings of fact that were made in the proceedings between the holding company and the Council that there simply was no nuisance. Although the subsidiary was not a party to those proceedings, it and the holding company had overlapping interests and were effectively before the court, and the Council had every opportunity to argue those points in those proceedings and chose not to do so.
41. There is a further issue I should raise at this stage. The Council in these proceedings sought to add to the errors asserted by including an irrationality argument. It is said that the conclusion of the magistrates that no notice was served on Lowestoft is irrational. The finding is not that Lowestoft did not know about the notice. Such a finding would be irrational because it is directly contrary to the evidence. The finding that the notice was not served, to my mind, although in some circumstances a technical distinction, is a real one here because the relevant document never had the name of that company on it. What would be relied on for service is the handing of the notice to officers of the subsidiary at the subsidiary's trading premises. But there was no evidence that I have been taken to which treated that as being service upon the subsidiary company. Even if it might have been the case that this was intended, the matter was clarified and the underlying potential for confusion recognised by the stance taken by the companies, at least by the time of the preliminary hearing.
42. Also, it is rather hard to say that a Magistrates' Court has reached an irrational finding which is precisely in line with the concession made to it by the Council. In certain circumstances again I can see that the fact that a Tribunal has been misled by one side could be said to be something that could be ignored in dealing with an irrationality conclusion. But to my mind, here it cannot, because the concession was based on a perfectly rational line of thought, namely that this notice was never properly addressed to the subsidiary company and therefore was never in a formal sense served on it, albeit that it was posted to its registered office, which was the registered office of both companies, and was placed in the hands of officers of the subsidiary company.
43. I repeat what I have said: there was never any point in this case that the subsidiary company was not fully aware of what the Council were doing. The point was a formal one -- potentially a technical one, but also one with substance because the relevant notice, if upheld, raises the potential for criminal penalties, and also the point that it should be served on the company that is creating the nuisance.
44. Also, and I am repeating myself, but it must be remembered that the argument before the magistrates was not that this document should always be construed as a notice to the tenant, and one which was and should always be treated as being a notice to the tenant, because for example there was a typing error.
45. I now turn to the question of costs. In this context, the starting point is section 64 of the Magistrates' Court Act. That is referred to in paragraph 24 of the decision in City of Bradford Metropolitan District Council v Booth CO/3219/1999; [2000] WL 571211. That paragraph goes on to identify some principles which apply to costs in proceedings of this type, and in particular costs of proceedings brought by a public authority in performance of its statutory duties. Paragraph 24 reads:

"24 1. Section 64(1) confers a discretion upon a magistrates' court to make such order as to costs as it thinks just and reasonable. That provision applies both to the quantum of the costs (if any) to be paid, but also as to the party (if any) which should pay them.

25 2. What the court will think just and reasonable will depend on all the relevant facts and circumstances of the case before the court. The court may think it just and reasonable that costs should follow the event, but need not think so in all cases covered by the subsection.

26 3. Where a complainant has successfully challenged before justices an administrative decision made by a police or regulatory authority acting honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both (i) the financial prejudice to the particular complainant in the particular circumstances if an order for costs is not made in his favour; and (ii) the need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged."

46. Here, in their handwritten reasons, the magistrates refer to imposing costs on an indemnity basis. In the case stated, I do not think they refer to any particular basis of assessment that was in their mind. What they do, however, say is that, in their view, the costs were reasonable and proportionate, they having looked at the costs. It was asserted that that was irrational. I agree with the submission made on behalf of the companies that it is very surprising that, in making that submission, the schedule has not been put before the court with an identification of particular costs which are said to be so outrageous that to conclude that they are reasonable and proportionate would be irrational.
47. There is a twofold attack on the approach taken by the magistrates to the costs issue. The first is that they fail to have proper regard essentially to the guidance in the Bradford case. To my mind, that is not made out by reference to the case stated. They refer to the Bradford case. They refer to the duty of the local authority. They refer to prejudice to the companies. It is then said, in dealing with prejudice to the companies, they did not have sufficient evidence upon which to base their conclusions. That, to my mind, flies in the face of the evidence that was put in to the court by the companies as part of their main case, both as to the preservation of jobs and the difficulties including trading difficulties that the companies have had over the years.
48. It is then said that they failed to have proper regard to the guidance given to magistrates as to costs. I accept that they do not expressly refer to that. But, in my judgment, one goes back then to the overarching test: what is just and reasonable? It is inherently a matter for discretion for the deciding court, and one remembers the position the deciding court had been in, or been put in, through the conduct of this hearing. What had happened was that a five-day case had been set down on a hotly contested basis as to the underlying facts, and in the result the Council had effectively not completely thrown their hand in, but just stood back and taken no active day-to-day part. The court had therefore proceeded to look at the evidence and had reached conclusions contrary to the Council.
49. It seems to me, that far from being irrational, one can well understand the thought process of the magistrates in those circumstances. They recognise that the Council had a public duty. It is apparent from their reasoning that they thought that it took a very strange approach to performing a public duty by its approach to the underlying dispute of fact concerning whether or not there was a nuisance being created on this site. The magistrates had proceeded on the basis that the evidence should be dealt with. The Council had put up no effective resistance to that but had not given up. That is litigation conduct which, to my mind, merits criticism, and that criticism, it seems to me, is properly reflected in the approach that the magistrates took to assessing costs, which is what they did. They did not send the costs off for assessment by somebody else identifying a basis for assessment; they assessed them themselves. They reached a conclusion that the costs were reasonable and proportionate and made the order.
50. So for the reasons I have given, I dismiss this appeal.
51. MR PIPE: I am grateful, my Lord. Mr Buck will address your Lordship on costs.
52. MR BUCK: My Lord, in respect of the issue of costs, the interested party seeks its costs of this appeal. My Lord, I do not know whether you have had sight of a statement of costs. I can pass it up. The statement of costs was provided to the Council yesterday afternoon just to assist my learned friend --
53. MR JUSTICE CHARLES: Thank you. Do you have any submissions you want to make on costs?
54. MR MCNIFF: My Lord, the general practice in this court is to not make orders for an interested party's costs. The reality here is we have an interested party making an application, and I invite the court not to depart from the usual process in relation to interested parties.
55. MR JUSTICE CHARLES: We do not have interested parties making an application, do we? We have the original claimant.
56. MR MCNIFF: My Lord, to these proceedings they are an interested party.
57. MR JUSTICE CHARLES: Why?
58. MR MCNIFF: In terms of how the proceedings have evolved, and, my Lord, we can see by virtue of how they have presented themselves in terms of their approach to the court, in terms of lodging the documents and the like, that they are in fact an interested party.
59. MR JUSTICE CHARLES: I had not understood that at all. They are the holding company who were the party to the proceedings.
60. MR MCNIFF: My Lord, I can only make representations on the basis that the general practice is not to award interested parties costs. If your Lordship concludes that is not what they are, then your Lordship will make such an order.
61. MR JUSTICE CHARLES: Even if it was the general practice, this is a case which has been fought out between two sides, and the practice is, if the defendant drops out, quite regularly the interested party gets its costs.
62. MR MCNIFF: There is nothing more I can add.
63. MR JUSTICE CHARLES: Thank you. Anything on quantum?
64. MR MCNIFF: My Lord, the court will take such view as it feels is appropriate. The only observation I can make is one wonders why it requires two counsel in these circumstances to present this particular matter.
65. MR JUSTICE CHARLES: Yes.
66. MR BUCK: My Lord, dealing with the issue of two counsel in respect of the interested party, my learned friend, Mr Pipe, was counsel at first instance in this matter, and thus has first-hand knowledge in respect of proceedings below, and, my Lord, in respect of the submission that the court has heard this morning, I would submit that that knowledge was relevant in respect of the determination of this appeal.
67. MR JUSTICE CHARLES: Yes, I do not think it is a criticism that he should be here; I think it is you.
68. MR BUCK: My Lord, the explanation as to why I am here is my learned friend, Mr Pipe, dealt with a five-day trial in the Chancery Division commencing a week last Monday, and was also involved in a three-week trial in the Chancery Division commencing a week on Monday --
69. MR JUSTICE CHARLES: So he was a busy man and wanted a back-up, I see.
70. MR BUCK: He was not able to deal with this -- specifically to deal with the skeleton argument that my Lord will see that I drafted, and also for myself to deal with those instructed in order to prepare the interested party's response to this appeal.
71. MR JUSTICE CHARLES: I am going to take a rough and ready approach, and I am going to give you your costs in the sum of £10,000, to include VAT. Thank you very much.