England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		4 June 2009

1. LORD JUSTICE PILL: This is an appeal by way of case stated from the Bromley Magistrates Court. It is brought by Thames Water Utilities ("the appellant").
2. The appellants first seek an extension of time in which to present their case. The appeal is against the decision of District Judge AP Carr, dated 26 June 2008, to convict them on information laid by the London Borough of Bromley, alleging a breach of section 55(5) of the Roads and Street Works Act 1991, in respect of a failure to issue a notice in respect of urgent works at 24 to 26 Park Road, Bromley. A fine of £200 was imposed, and they were ordered to pay prosecution costs of £14,730, which included £850 in respect of costs thrown away in relation to a hearing on 12 May 2008. The costs order also covered 14 other informations to which the appellant had pleaded guilty.
3. While we deal at this stage only with the application for an extension of time, it is appropriate to spell out the questions posed by the judge for the opinion of this court:
4. 1) Where a notice has been served under section 73 of the 1991 Act, that the works have been permanently reinstated and a closing notice sent, is the undertaker nevertheless permitted to continue working on the site without the necessity to serve a further notice under section 55(1), an opening notice, where such works involve breaking up or opening the street?
5. If the answer to question one is no:
6. 2) Does the position differ where the section 70(3)closing notice was erroneously sent, and that error had been communicated to the Street Works Authority?
7. 3) Was I entitled to find on the evidence before me that on or after 7 February 2007 the appellant undertook work at that site which required a further notice under section 55(1)?
8. 4) Was I entitled to make the order for costs payable by the appellant to the respondent in the sum specified?
9. It is to be noted that the first of those questions does raise, and the District Judge accepted it raised, a point of law on statutory construction. While he was prepared to state a case on the other grounds, question 2 refers specifically to the circumstances of the particular case where a notice was erroneously sent, which it is to be hoped is not common and not to be repeated. Question 3 involves a challenge to a finding of fact of the District Judge, it being contended that the finding was perverse on the evidence before him. The fourth question relates to costs, where of course a District Judge, like any other trial court, has a very broad discretion with which this court is unwilling and unlikely to interfere. That has particular force when the appeal can only be on a point of law for which the case stated procedure provides.
10. The case was heard by the District Judge at hearings on 10 January, 12 May, 4 June and 26 June 2008. He gave judgment on the last of those dates. It was a reasoned judgment, carefully considered, if I may say so, and resulted in the defendant company being found guilty in respect of Park Road, that is the information to which I have referred, and acquitted on an alleged offence in respect of Osgood Avenue. The application to state the case was made within the time limit of 21 days imposed by section 111 of the Magistrates Court Act 1980. There were then discussions about the nature of the case, as is not uncommon.
11. The delay was in subsequently failing to lodge the case with the Administrative Court, to which court of course, as part of the High Court, the appeal was made. That was for a period of 2 months, and an extension of that time is sought.
12. The appellants are represented by Miss Levett, who was also involved in the preparation of the case stated. She has provided a full statement to the court in which she frankly and fulsomely accepts responsibility for the delay. At that time Miss Levett had personal preoccupations of an entirely praiseworthy kind. Solicitors also were acting for the appellants, and Miss Levett accepts that they acted, or failed to act, on the basis of her advice. In that context Miss Levett invites us to have regard to the check list contained within CPR 3.9 as to whether relief by way of extension of time should be granted in civil proceedings. The application of that rule was considered in the Court of Appeal in Sayers v Clarke Walker, [2002] EWCA Civil 645, Brooke LJ giving the leading judgment.
13. What in her written and oral submissions Miss Levett has done is to take the court through the civil check list in CPR 3.9 and made submissions as to how it relates to the circumstances of this case. She submits that the court, applying those principles, should be prepared to grant the extension, which is of course a substantial one, in terms of, and what is in effect, a lodging of the application and holding of an appeal in the High Court. Her central submission is that the District Judge has raised questions of significant importance to street works authorities and undertakers throughout England and Wales, and that it is in the interests of justice for those questions to be determined, notwithstanding the delay. She submits that it is not merely in the interests of a company such as the appellant's, or of a public authority, it is in the interests of justice. It is not in the interests of justice for a conviction, which the appellants submit is made in error of law, to stand.
14. Miss Levett refers to the dates involved; the finalized case was received by the appellant's solicitor on 15 September 2008, and the appellant's notice was sent on 20 November 2008, which she accepts is 8 weeks late. It was issued on 24 November.
15. It is submitted and accepted that the failure to comply with the rule as to time was not intentional. Until the error had been discovered the appellants were under the misapprehension that an appeal had been lodged. It is of course basic that on an appeal to the Administrative Court the papers must be lodged in that court. As to whether there is a good explanation for the failure, I have referred to the frankness of Miss Levett's explanation and to the substantial personal mitigating factors. She accepts that it is an explanation, not necessarily a good explanation. She seeks to defend the solicitor involved, stating that, she having told him what the procedure was, he had no need to conduct his own research. As to the appellants, they had accepted the advice of legal advisers, and had no reason to go behind that or check it.
16. As to whether the party seeking indulgence has complied with other rules etc, Miss Levett submits that there has been no other default in this case. She replies to allegations made on behalf of the respondents that there were delays at a later stage. Reference is made to the fact that not only was the present application made, but an application was made in relation to the sentence imposed. That was made to this court because of the rule that one can not go to the Crown Court, where of course one would normally challenge a sentence if one wished to do so, when there is an extant appeal by way of case stated, to the High Court.
17. The District Judge refused to state a case on that ground. It appears to me to have been a hopeless application, bearing in mind that the sentence has to be very wrong before its imposition can amount to an error of law. The application to this court to direct the District Judge to state a case has been refused.
18. Mr Albutt, for the respondents, has referred to the delays which have been occasioned by the attempt to pursue that other and different remedy. As to whether the failure to comply was caused by the party or its legal representative, that is succinctly stated by Miss Levett as failure by the appellants' counsel. As to whether the trial date can still be met if relief is granted, no trial date was fixed of course pending the lodging of the application, as there has not been any need to alter a trial date. Of course an earlier date was very likely to have been fixed had the notice been lodged as it should have been.
19. As to the effects of the failure to comply on the parties, Miss Levett submits that there is no prejudice to the respondents; at no stage have they been lulled into a false sense of security that the appeal was not being pursued. The application to state a case was made within the 21 days allowed.
20. Miss Levett submits, and it relates to her general point when considering the effect that granting of relief would have on each party, that it would greatly clarify the law in relation to the duration of works and the need for opening notices at various stages of the works. It would enable the training of staff on both sides in any procedure to be followed. It would benefit local council tax payers if a clear procedure is now directed by this court. Utility companies would also have the benefit of laying down their procedures on the basis of a judgment of this court.
21. In his submissions in reply Mr Albutt submits that the questions posed are not of general public importance, and there is no evidence of any other street authority or undertaker being concerned as to the outcome of the case stated. There is no evidence of other outstanding appeals. Miss Levett believed that there were such outstanding appeals, but that, on instructions, Mr Albutt says is not the case.
22. He referred to the fixed penalty notice procedure, which has been introduced since May of 2008, that will minimise costs and the need for court appearances. I say now that I do not regard that consideration as crucial. One hopes, of course, that the fixed penalty procedure will lead to a reduction in costs incurred by public authorities and public utilities, and will encourage cooperation between them in an effort to introduce and implement sound procedures, but I am not able to hold that the introduction of a fixed penalty notice has any major effect on the need, if there be any, to construe a statute. Question 1 at any rate does relate to that.
23. Mr Albutt doubts the interest of the public utilities and practitioners in the outcome of this case. He submits that was decided primarily on its particular facts, that there is a clear finding of fact by the District Judge which there is no real expectation of reversing, and that the delay should be treated as fatal to pursuing the case. He makes the point that it is surprising in his submission that Miss Levett's instructing solicitor did not understand the need to take action, and he, as well as counsel, should have been alert to it.
24. Mr Albutt refers to a letter written by his instructing solicitor to the appellants' solicitors, on the 12 November 2008, headed with the title of this action:

"Further to these matters we would be grateful if you could advise us as to whether you have heard anything further from the Administrative Court with regards to Thames Water's appeal by way of case stated. We look forward to hearing from you."

25. Thus, submits Mr Albutt, the knowledge that it was the Administrative Court where the papers had to be lodged was in the mind of the respondent's solicitors, as, he submits, it should have been in the minds of others. The application to lodge was made within a few days of that but he is not suggesting, and I would not be prepared to find, that it was the receipt of that letter which brought action on the appellants' behalf.
26. This is not a case, submits Mr Albutt, in which there is any real prospect that the costs issue would be determined in the appellants' favour upon a case stated to this court.
27. It is right to say that court is seized of the matter and is in a position to proceed now with hearing the substantive appeal if the extension of time is granted.
28. I bear in mind the check list to which counsel have referred. I have come to the conclusion that this is not a case in which an extension of time should be granted. In reaching that conclusion I have regard primarily to the circumstances of the particular case. The stated case, like the judgment, has been prepared by District Judge Carr with great care. It is, if I may say so, conscientious and entirely fair minded, the submissions of the parties are set out. It is clear in my judgment that his decision depends very much on the facts of the case. The judge referred in detail to the evidence given and to the timetable. He expressed his conclusions as to whether work undertaken after 7 May had to be new works for the purposes of section 55(5), and held that they did. He stated at page 21:

"The respondent contended that it was necessary to look at each stage of the legislation; that there were clearly defined stages, and once the permanent reinstatement stage had been reached there was a move to another stage altogether, that is the stages of inspection by the Street Works Authority and rectification. In effect the service of the closing notice under section 70(3) had ended the notice cycle for those works."

29. He expressed that as the respondents' submissions, with which he agreed.
30. He referred to further arguments on behalf of the appellants and, near the end of his stated case, he stated, at page 17 of 18:

"In the present proceedings I was dealing with litigation extending over a number of days where the issues were complex and difficult, and contested at every point. The law was technical but important for the parties. At one point early in the proceedings I intimated that the points were novel and I hoped the issues would not recur. There was an obvious remedy to such litigation in the future. That is not to say that the prosecution was unreasonable, indeed as the evidence unfolded I was concerned at the lack of effective provision made by the appellant for the administration of notices which were the subject of the trial, and felt that a fine was justified on conviction. I concluded that the overall claims for costs of litigation of this nature were reasonable and should be apportioned between the parties equally."

31. Earlier in his judgment, having carefully considered the evidence given on each side, the judge preferred the evidence of the respondents. The appellants, if the case were to proceed, would have an up-hill task to show perversity in those findings.
32. However, I return to the central point that I am not persuaded, by Miss Levett that there is any public mischief in failing to determine the legal point which has, amongst other points, arisen in this case. If section 55 and section 70 are to be construed, this is not from the appellant's point of view the best case in which to do so, having regard to their conduct as found by the judge. On his findings of fact it would be extremely difficult either to disturb them or to reach a conclusion on the statutory scheme which is favourable to the appellants. That involves a provisional view as to the merits of the case, and we have heard Miss Levett address us on that point.
33. In my judgment it is far from clear that any injustice has been done, but, more relevant, it is not a case where there is a substantial public interest in a legal ruling being given upon the two sections involved. Errors were plainly made by the appellants, the judge has referred to those, and my judgment can not be aggrieved if, in all the circumstances, the extension of time is not granted.
34. As to costs, it was put to Miss Levett that is extremely difficult on an appeal on a point of law to challenge the finding of a judge as to costs. She makes the point that there is no other remedy; that one cannot take a costs appeal to the Crown Court, and the District Judge, in effect, unless there is an application for a case stated, such as the present, his word is the last word. Nevertheless, in my judgment there would have to be an order which was wholly out of proportion to what would be a proper sum to give any merit to this claim. The District Judge on this, as on the findings of fact, was prepared to entertain that a point of law was potentially involved, but this court, in viewing the overall position in relation to the application for an extension, must form its own view about that, with the assistance of the submissions of counsel.
35. I am not persuaded that there is a prima facie case that the costs were so excessive in this case as to amount to an error of law.
36. This court must do justice to both sides. Finality is an aspect of the proper administration of justice. Where counsel has accepted the responsibility, as she has, though in my judgment more than she need have done in the circumstances, one is tempted to grant the extension sought, even one as long as 2 months. That period of course must be seen in the context of a jurisdiction in which the application for the case must be made within 21 days. It must also be seen in the context of the present approach to timely applications to appeal and the need for timely steps in an appeal procedure, at any rate when one is considering applications in this context, an alleged failure by a public utilty.
37. The prospects of success, had we heard the case, are in my judgment poor. I do express serious doubts about whether the appellants have lost anything by not being able to pursue this appeal, especially having regard to their own conduct at the time which would have been difficult for this court to find was not relevant and blameworthy.
38. Thus, while I am not impressed by the point that the whole issue is made redundant by the introduction of a fixed penalty procedure, in my judgment the interests of justice require that the application for any extension of time is refused, and for the reasons I have given, I would refuse it.
39. MR JUSTICE CRANSTON: I agree. I would simply add a few words about the procedural law relating to the case stated. It is somewhat of a maze, as my Lord has said, it is based on section 111 of the Magistrates Court Act 1980, but a second source of the procedural law is in the Criminal Procedure Rules 2005, rule 64. A third source however is in the CPR, in particular in the practice direction at CPR 52, 52PD.83 and the following provisions. There may well be a case for collecting these different procedural provisions together, located as they are in three places, into the one easily accessible place.
40. LORD JUSTICE PILL: Are there any applications?
41. MR ALBUTT: There are my Lord. The court has already been sent the summary statement of costs, do either of your Lordships have it?
42. LORD JUSTICE PILL: No, we do not I am afraid.
43. MR ALBUTT: We have brought copies, as always, just in case.
44. LORD JUSTICE PILL: Thank you.
45. MR ALBUTT: Which has been served, my Lords, of course, on the appellants, and we in turn received from them their costs.
46. Your Lordships will be aware of the fact that of course the way that the matter has been listed, as my learned friend said in opening, is to list for this day both the application for the extension of time and of course, if that had been successful, the substantive hearing. Therefore there has been full preparation for both and, of course, as your Lordships will also be aware, because of the factors in the check list which relates obviously to analysing prospects of success in relation to the points of law also, it is really a full preparation when matters are listed together. The claim for costs which is set out by my instructing solicitor, including VAT claimed on solicitor's and counsel's fees, is £16,818.75. My Lords, if it assists, the claim made by the appellants, had this matter gone on for a full hearing, in other words the costs of the hearing for 4 June, their claim would have been £18,014.85.
47. LORD JUSTICE PILL: We have not had that either.
48. MR ALBUTT: You have not seen that?
49. LORD JUSTICE PILL: No.
50. MR ALBUTT: So my Lord, that is the application, for the sums set out in the schedule.
51. MISS LEVETT: My Lord, in relation to the application for costs we would prefer to seek a detailed assessment of the costs that were raised by the respondents. The summary that has been provided does not give sufficient information upon which representations to this court can be made by the appellants, and therefore, given the large amount of those sums, we do seek a detailed assessment. By way of comparison the costs that we sought of course involved those costs for the application to amend as well, and therefore they would have been greater than the costs incurred by the respondents. That is my response in relation to the application for costs. We accept in principle, of course, that having lost the appeal costs do follow the event.
52. My Lord, I am instructed to ask for permission to appeal against the ruling refusing the application to apply for an extension of time, so I do formally make that application before your Lordships.
53. LORD JUSTICE PILL: Yes. What is your response to a detailed assessment?
54. MR ALBUTT: Well my Lord, fundamentally you have it before you; the hours are set out and the rates. If your Lordships feel that they are unable to make that order on the information that is there then of course we do not resist a detailed assessment.
55. LORD JUSTICE PILL: Permission to appeal?
56. MR ALBUTT: My Lords, again, I would say that from your Lordship's judgment you did regard the position as being quite clear in a number of aspects, with no real prospect of success in relation to the case stated. I say no more than that my Lords, but in the light of both your judgments it would seem to me to follow that if permission is required that perhaps the appellant should make that to the Court of Appeal.
57. LORD JUSTICE PILL: Yes. Miss Levett anything in reply on that point?
58. MISS LEVETT: My Lord, purely in relation to that latter point: the merits have clearly been referred to by your Lordship, in relation particularly to the legal aspects, question 1 I think is the most important, and of course a detailed consideration of the merits of the case were not explored by myself, it was merely whether it was in the interests of justice to pursue it and the check list matters.
59. LORD JUSTICE PILL: Yes. But we were referred at an earlier stage to the District Judge's view which I cited in the judgment. Did that not raise the question of merits when one sees the terms in which he has made his judgment? And that would, it seems to me, relate to the passage of time, the extension of time.
60. MISS LEVETT: My Lord, yes. In considering the merits however, as to whether or not there was a realistic prospect of success, that was not addressed by myself. Certainly the authorities, the National Grid case that is contained within my skeleton argument, indicates a complete contrary indication of the law compared to that reached by the learned District Judge, and it is those merits that have not been explored before your Lordship, because the issue is whether it was in the interests of justice to pursue that appeal. It may well have been an error on my part by not drawing your Lordship's attention to the National Grid case and the fact that that seems to completely contradict the learned District Judge's ruling on the law, but not withstanding that, as the appellant does believe that there is good merit, certainly in relation to question 1, and it is on that basis, and certainly the issue of costs, that we would seek permission on which to appeal further.
61. LORD JUSTICE PILL: Yes.
62. No we are not prepared to grant permission Miss Levett, you will need to go to the Court of Appeal. We do not consider there are real prospects of success.
63. MISS LEVETT: Thank you.
64. LORD JUSTICE PILL: But we are very grateful to you for your helpful submissions. Anything else arise?
65. MR ALBUTT: My Lord, just the question of costs.
66. LORD JUSTICE PILL: Sorry, yes, we did not ask for any further comment from Miss Levett because we think that this should go for detailed assessment.
67. MR ALBUTT: I am grateful, my Lord.
68. LORD JUSTICE PILL: So the respondents will have their costs subject to detailed assessment unless agreed.
69. MR ALBUTT: I am grateful my Lord.