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
		26 January 2012

1. THE DEPUTY JUDGE: On this claim for judicial review the claimant, the London Borough of Newham (whom I shall refer to as "the council"), seeks to challenge a decision of the District Judge on a hearing of a licensing appeal in the Stratford Magistrates' Court to make an order for costs against the council.
2. The background to that decision is as follows. On 29 September 2009, Step Supermarket in Romford was granted a licence to sell alcohol subject to certain conditions. Those conditions were:

1. That the licencing hours during which sale of alcohol was permitted were 10.00 am to 10.00 pm Monday to Friday, 10.00 am to 9.00 pm on Saturdays, and 12.00 pm to 5.00 pm on Sundays and public holidays.

2. Beer and cider on sale was not to exceed 6 per cent of alcohol by volume.

3. Beer and cider were not to be sold in multiples fewer than four after 12.00 pm.

3. Mr Saron, the proprietor of Step Supermarket, had sought a 24-hour licence without conditions. Instead of appealing against the conditions imposed by the council, however, Mr Saron applied for another licence for the same premises, and on 20 November 2009 a second licence for those premises was granted which permitted the sale of alcohol from 8.00 am to 11.00 pm Monday to Saturday and from 8.00 am to 10.00 pm on Sundays and without any further conditions regarding sales of beer and cider.
4. Following an application made by the Metropolitan Police under section 53 of the Licencing Act 2003 in the light of breaches of the conditions of the second licence, both licences were the subject of a review by the council in February 2010. The outcome of that review was that the conditions of the second licence were changed to mirror those of the first licence and further conditions were imposed on both licences regarding the installation and maintenance of a CCTV system.
5. Mr Saron brought appeals to the Magistrates' Court against the conditions imposed on both licences apart from those relating to CCTV. The hearing of the appeals took place before District Judge Sims on 19 May 2010. The District Judge heard evidence from a number of witnesses called by the council and one witness for the appellant, Mr Saron. Mr Saron himself chose not to give evidence. The reason given by his legal representative, as the District Judge recorded in her judgment, was that in order to ensure that he was able to give evidence adequately he would need an interpreter which, so it was said, he could not afford.
6. The District Judge gave judgment orally at the conclusion of the hearing but subsequently handed down full written reasons for her decision. Those reasons run to 18 pages of single spaced typing. In those detailed reasons the District Judge recorded her conclusion that the council's licensing committee was wrong to impose the conditions that it had. However, she also did not accept Mr Saron's contention that he ought to be granted a 24-hour licence with no further conditions except as to CCTV. Instead she adopted an intermediate position and held that the following conditions were appropriate:
7. On Mondays to Saturdays alcohol could be sold between the hours of 8.00 am and 11.00 pm.
8. On Sundays and bank holidays sales were permitted between the hours of 10.00 am and 10.00 pm.
9. Beer, lager and cider could not be sold in multiples of less than four.
10. In the result, the District Judge imposed conditions which were more favourable to the appellant, Mr Saron, in terms of hours than those which the council had granted though substantially less than the 24-hour licensing conditions which he had sought. The District Judge also declined to uphold the condition imposed by the council as to the strength of beer, lager and cider that could be sold but imposed a condition prohibiting sales in multiples of less than four, which was in fact more restrictive than that applied by the council, in that it applied at all hours of the day.
11. At the end of hearing there was an argument about costs. The appellant, Mr Saron, sought an order for his costs to be paid by the council in the sum of £8,685. It was submitted on his behalf that he had virtually succeeded on the appeals and also that the court should conclude that the decision of the licensing committee had been made in bad faith. The council submitted that costs should not be ordered against it and further submitted that Mr Saron's conduct in applying for two concurrent licences had unnecessarily complicated proceedings and added to their costs. The council sought an order that it should be awarded 50 per cent of its costs, which in total amounted to £4,956.80. The council therefore asked for an order for costs in its favour in the sum of £2,478.40. The District Judge was referred to the case of City of Bradford Metropolitan District Council v Booth [2000] EWHC Admin 444, to which I will return.
12. The order that she made was that costs in the sum of £5,350 were to be paid by the council to Mr Saron. That sum represented the difference between the amount of costs claimed by Mr Saron and the amount of costs claimed by the council. In her written reasons, the District Judge referred to the submissions made on the question of costs and then identified certain respects in which Mr Saron's conduct in applying for two licences and seeking to have his appeal in relation to each of the licences separately dealt with had added to the costs of the proceedings. She concluded:

"In light of the above, I am satisfied that unnecessary work has been incurred due to the complicated way that these proceedings have evolved. I do not accept that the Appellant has virtually succeeded. I reject the submission on behalf of the Appellant that the Licensing Committee acted in bad faith but I do accept that the original decisions were wrong. As a consequence, I have taken the figure put forward on behalf of the Appellant and rather than make and award to the Respondents (in the figure I consider to be proportionate) in light of the unnecessary costs incurred and justification in respect of the conditions that have been imposed, I have made a reduction from the Appellant's costs. I therefore order costs in the sum of £5,350 to be paid by the Respondents to the Appellant."

13. The council did not seek to challenge the substantive decision reached on the licensing appeals but it took the view that the District Judge had erred in law in her approach to costs.
14. On 24 June 2010, the council issued an application to the justices to state a case for the opinion of the High Court on the following two questions:

"1. Was the learned District Judge wrong in law to order the Respondents to pay a proportion of the costs of the Appellant, in circumstances where the Respondent local authority was defending an administrative decision made in good faith.

2. Was the learned District Judge irrational not to order the payment of some of the Respondent's costs by the Appellant, having concluded in her judgment that the Appellant's conduct caused unnecessary duplication of effort by the Respondent."

15. The justices provided a response to the application to state a case on 20 August 2010, by which they refused to do so on the basis that District Judge Sims was of the opinion that the application was "frivolous". Her reasons were set out in a written response to the grounds in support of the application to state a case. This response included further justification for the order made as to costs, to which I will refer later.
16. The council maintained its position in a letter dated 21 September 2007, sent in accordance with the pre-action protocol, and invited the District Judge to reconsider her position and accede to the application to state a case.
17. On 13 October 2010, the council was informed by email that "District Judge Sims has considered the papers but will not take any action at this moment in time".
18. On 11 November 2010, this claim for judicial review was issued asking for a mandatory order compelling the justices to state a case or, in the alternative, for the court to determine the two questions on which its opinion was sought.
19. In its acknowledgement of service dated 9 December 2010, the defendant justices stated: "District Judge Sims does not wish to make any submissions at the permission state, however if permission is granted then the District Judge will provide a statement for the judicial review hearing."
20. The only further document which the justices have provided is a short response prepared by District Judge Sims to the council's pre-action protocol letter. This document is dated 11 October 2010 but it is marked to indicate that it was not sent at that time. It did not elaborate further on the reasons for the decision regarding costs and stated that the reasons for refusing to state a case had already been comprehensively set out and had addressed both questions raised by the council.
21. On 30 March 2011, HHJ Gosnell sitting as a Deputy Judge of the High Court granted permission to proceed with the claim.
22. At the hearing of the matter today, the council has been represented by counsel, Mr Matthew Paul. The defendant has indicated in a letter dated 12 April 2011 that it did not intend to appear or be represented at this hearing but that the District Judge relied on three documents, to which I have referred, namely her original reasons for her decision, her reasons given for refusing to state a case and the response to the council's pre-action protocol letter, which as I understand was provided to the court as an enclosure to the letter of 12 April 2011. Although Mr Saron has been named in the proceedings as an interested party -- quite properly -- I understand that he no longer owns the relevant premises and he has not appeared or been represented today.
23. The council has made it clear that it no longer seeks the opinion of the court on the second of the two questions identified in its original application to state a case.
24. Pursuant to section 111(5) of the Magistrates' Court Act 1980, the justices may refuse to state a case if they are of the opinion that an application for them to do so is "frivolous". The meaning of that term has been explained in the case of R v North West Suffolk (Mildenhall) Magistrates' Court ex parte Forest Heath District Council [1997] EWCA Civ 1575, in which Lord Bingham said:

"I think it very unfortunate that the expression 'frivolous' ever entered the lexicon of procedural jargon. To the man or woman in the street 'frivolous' is suggestive of light-heartedness or a propensity to humour and these are not qualities associated with most appellants or prospective appellants. What the expression means in this context is, in my view, that the court considers the application to be futile, misconceived, hopeless or academic. That is not a conclusion to which justices to whom an application to state a case is made will often or lightly come."

25. I do not consider that the application made to the justices to state a case for the opinion of this court on the first of the two questions identified by the council can on any reasonable view of the matter be described as "frivolous" in that sense. It would not, however, be appropriate in this case simply to decide that the council's application was not frivolous and to order the justices to state a case. It is clear from the case of R (Griffin) v Richmond Magistrates' Court [2008] 1 WLR 1525, which itself referred back to the earlier case of Sun World Ltd v Hammersmith & Fulham London Borough Council [2007] 1 WLR 2102, that if no further findings of fact are necessary in order to decide the point of law in issue and if the justices have already explained their refusal to state a case in terms which make the issues apparent, then the correct course is for this court to proceed to decide the relevant question or questions thereby avoiding additional delay and cost.
26. I am quite satisfied that that is the procedure that I should adopt in this case. Nothing useful would be served by requiring the justices to state a case. To follow that course would simply cause delay and waste costs in a matter where the money involved is, in any event, very small. Furthermore, the council in its letter dated 12 April 2011 has itself invited the court to follow that course if it considers, as I do, that the refusal to state a case was unjustified. I therefore proceed to decide the question on which the court's opinion is still sought by the council, namely: "Was the learned District Judge wrong in law to order the Respondents to pay a proportion of the costs of the Appellant, in circumstances where the Respondent local authority was defending an administrative decision made in good faith?"
27. The starting point is section 181(2) of the Licencing Act 2003, which gives the Magistrates' Court power to make such order as to costs as it thinks fit. That discretion is not unfettered, however, and must be exercised in a principled manner. The approach which the Magistrates' Court should adopt in exercising its discretion as to costs when it upholds a challenge to a licensing decision made by a local authority was considered in the case of City of Bradford Metropolitan District Council v Booth, which, as I have mentioned, was cited to the District Judge in the present case.
28. In the City of Bradford case at paragraphs 23 to 26, Lord Bingham said:

"I would accordingly hold that the proper approach to questions of this kind can for convenience be summarised in three propositions:

1. Section 64(1) [which was the applicable provision at that time, although there is no indication that the change of legislation in any way affects the matter] 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.

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.

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."

29. That approach has been applied and approved in subsequent cases. Indeed it has been extended more generally to other cases involving challenges to decisions made by public regulatory authorities. In Baxendale-Walker v The Law Society [2007] EWCA Civ, a case concerning disciplinary proceedings brought by the Law Society against a solicitor, Moses LJ, giving judgment of the Divisional Court, said:

"Absent dishonesty or a lack of good faith, a costs order should not be made against such a regulator unless there is good reason to do so. That reason must be more than that the other party had succeeded. In considering an award of costs against a public regulator the court must consider on the one hand the financial prejudice to the particular complainant, weighed against the need to encourage public bodies to exercise their public function of making reasonable and sound decisions without fear of exposure to undue financial prejudice, if the decision is successfully challenged."

30. That statement of the law was approved on appeal in the judgment of the Court of Appeal at paragraph 39.
31. More recently in the case of Perinpanathan, R (on the application of) v City of Westminster Magistrates' Court and Metropolitan Police Commissioner [2010] EWCA Civ 40, the relevant principles in cases of this kind were again considered by the Court of Appeal. In that case, a direct challenge was made to the correctness of the principle stated by Lord Bingham in the City of Bradford case. Stanley Burnton LJ, after reviewing the authorities, said at paragraph 40:

"I derive the following propositions from the authorities to which I have referred:

(1) As a result of the decision of the Court of Appeal in Baxendale-Walker, the principle in the City of Bradford case is binding on this Court. Quite apart from authority, however, for the reasons given by Lord Bingham LCJ I would respectfully endorse its application in licensing proceedings in the magistrates' court and the Crown Court...

(5) Where the principle applies, and the party opposing the order sought by the public authority has been successful, in relation to costs the starting point and default position is that no order should be made.

(6) A successful private party to proceedings to which the principle applies may nonetheless be awarded all or part of his costs if the conduct of the public authority in question justifies it.

(7) Other facts relevant to the exercise of the discretion conferred by the applicable procedural rules may also justify an order for costs. It would not be sensible to try exhaustively to define such matters, and I do not propose to do so."

At paragraph 41, Stanley Burnton LJ continued:

"Lord Bingham LCJ stated that financial prejudice to the private party may justify an order for costs in his favour. I think it clear that the financial prejudice necessarily involved in litigation would not normally justify an order. If that were not so, an order would be made in every case in which the successful private party incurred legal costs. Lord Bingham LCJ had in mind a case in which the successful private party would suffer substantial hardship if no order for costs was made in his favour. I respectfully agree with what Toulson J (with whom Richards LJ agreed) said in R (Cambridge City Council) v Alex Nestling Ltd:

'12. As to the financial loss suffered by the successful appellant, a successful appellant who has to bear his own costs will necessarily be out of pocket, and that is the reason in ordinary civil litigation for the principle that costs follow the event. But that principle does not apply in this type of case. When Lord Bingham referred to the need to consider the financial prejudice to a particular complainant in the particular circumstances, he was not in implying that an award for costs should routinely follow in favour of a successful appellant; quite to the contrary.' "

32. The Master of the Rolls, Lord Neuberger, in the same case did not go so far as to agree that Lord Bingham's principles were binding on the Court of Appeal but he observed at paragraph 74:

"There have been a significant number of cases over the past thirty years (from the Uxbridge Justices' case [1981] 1 QB 829 to Baxendale-Walker's case [2008] 1 WLR 426), where the High Court and Court of Appeal have had to consider whether it was right to award a successful party costs against a regulatory or disciplinary body, and the consistent approach has been that laid down by Lord Bingham in Booth's case."

He also said at paragraph 76:

"The principles appear to me to be well founded, as one would expect bearing in mind their source."

33. The third member of the Court of Appeal, Maurice Kay LJ, agreed with the judgment of both Stanley Burnton LJ and The Master of the Rolls.
34. Accordingly, the principles set out by Lord Bingham in the City of Bradford case are well established law. Indeed it seems to me that they have in fact been somewhat strengthened in their formulation in the most recent authorities, which make it clear in particular that the starting point and default position where a party opposing a decision of a public authority has been successful is that no order for costs should be made and, secondly, that when Lord Bingham referred to financial prejudice to the successful private party as potentially justifying a departure from that position, what is required is evidence that that party would suffer exceptional and substantial financial hardship.
35. Turning to the reasons given by the District Judge in her written judgment for her order about costs, I would make the following observations.
36. Lfirst, it appears that the District Judge misunderstood, or in any event mis-stated, the position of the council on the question of costs. That position was summarised in her judgment as follows:

"The Respondents conclude that due to the application and the grant of a second licence, this complicated matters unnecessarily and to the extent that the sum of £4,956.80 was incurred and that a proportion of that should be deducted from any costs order the court considers it appropriate to make."

It is clear, however, although it is not reflected in the judgment, that the council was not, or not merely, submitting that a proportion of its costs should be deducted from any costs order in favour of the appellant which the court considered it appropriate to make; rather the council's submissions were that there should not be any order for costs against it and that it should be awarded 50 per cent of its own costs. It is clear that this was the council's position because not only they but the District Judge have subsequently confirmed that fact. Thus, in the response to the application to state a case, at paragraph 8, the District Judge stated:

"It was very clear that the Respondent's submissions were that there should not be an award of costs against them and that they sought an order for costs in the sum of £2,478.40."

37. Second, the District Judge in her judgment expressly rejected the submission made on Mr Saron's behalf that he had "virtually succeeded". The rejection of that submission was plainly justified since Mr Saron had been arguing that he should have a 24-hour licence without any conditions except as to CCTV, whereas what the District Judge held to be appropriate was a licence that was limited in terms of hours and with a condition limiting the multiples of sales of beer, lager and cider. That result was less restrictive than the council's licensing committee had thought appropriate but by no means could it be described as a complete success for Mr Saron; rather, as I said earlier, the position arrived at by the District Judge was an intermediate one between the contentions of the parties. In those circumstances, even if the proceedings had been between two private parties, it is doubtful whether it would have been appropriate to award Mr Saron the whole of his costs subject only to a deduction for costs which he was found to have caused to be unnecessarily incurred.
38. Third, the District Judge also rejected a submission made on behalf of Mr Saron that the licensing committee had acted in bad faith and made no finding that the committee had acted unreasonably or improperly in taking the decision that it did.
39. Fourth, the District Judge made no finding that Mr Saron would suffer financial prejudice or hardship if no order for costs were made in his favour, nor that there were any other particular circumstances which would make it just and reasonable to make an order for costs in his favour. The only particular circumstances relevant to the exercise of her discretion which the District Judge identified in her judgment were facts which satisfied her that unnecessary work had been incurred due to the complicated way in which the proceedings had evolved. That was a matter for which, on her findings, Mr Saron was responsible. It therefore could not justify an award of costs in his favour; if anything, the reverse.
40. In those circumstances, if the District Judge had correctly applied the legal principles established by the City of Bradford case and the later authorities to which I have referred, she would, in my view, have been bound to conclude that there was no justification for making an order for costs in favour of Mr Saron. It is clear, however, from her judgment that the District Judge adopted a wrong legal approach. Having referred to various factors, all of which were matters in favour of the council, she said: "But I do accept that the original decisions were wrong. As a consequence, I have taken the figure put forward on behalf of the appellant," and, as she explained, adjusted it to deduct the costs which, in her view, had been unnecessarily incurred.
41. It is clear from that passage that the District Judge was treating the conclusion that the appellant should be awarded his costs subject only to a deduction on account of costs which he had caused to be wasted as a consequence which followed simply from the fact that the District Judge had accepted his case that the council's original decisions were wrong. That was, in effect, to treat the default position as being that costs should follow the event, when the authorities make it quite clear that as a matter of law that is not the correct approach; rather, as I have indicated, the default position is that no order for costs should be made where, as here, no additional circumstances favourable to the successful party are identified.
42. As mentioned earlier, the District Judge gave further justification for her decision on costs in the response to the application to state a case. There she said at paragraph 11:

"I accepted that the Respondents had not acted in bad faith nonetheless their decision was in my view unreasonable. Their function is to ensure that any licence granted, with or without conditions, complies with the licensing objectives. The conditions imposed were far too onerous and prejudicial to the Appellants."

43. That statement has something of an air of hindsight about it in that it does not reflect anything recorded in the earlier judgment. To say that the conditions imposed by the council were "far too onerous and prejudicial to the Appellants" also seems to me to be putting the matter somewhat high, and higher than is justified by comparison between the conditions which the council had imposed and those which the District Judge thought appropriate. It does not seem to me that there is anything either in the judgment or in the subsequent response to the application to state a case which would support the conclusion that the council's decision was unreasonable; rather the case is simply one in which the District Judge took a different view about the appropriate licensing conditions from the council and therefore concluded that in her view the council was wrong on the basis of the evidence heard on the appeal, not all of which, I would add, is evidence that was before the licensing committee when the decision was taken. The City of Bradford case clearly contemplates that there can be a range of judgments which a local authority can properly make without its decision being capable of being characterised as unreasonable and nothing was identified by the District Judge in this case which would take the council's decision outside that range.
44. In the response to the application to state a case, District Judge Sims also suggested that if no order for costs had been made in favour of Mr Saron, he would suffer financial prejudice. At paragraph 12 of the response she stated:

"Mr Saron through his representative asserted that he was not financially able to employ an interpreter and this was one of the reasons he did not give evidence. It was clear from the evidence before the court that Mr Saron's command of the English language was limited and it is reasonable to conclude that he would have employed an interpreter if he had been able. I was also informed on more than one occasion that his representative was appearing Pro Bono due to Mr Saron's financial circumstances. These factors were given in open court by an officer of the court and were not challenged at any stage. The financial implications upon him (even if he did not have to pay for the attendance of his advocate) were in my view prejudicial."

45. Once again, this statement appears, if I may say so, to be a retrospective attempt to justify the decision on a ground which did not form part of the original reasoning. There is, as I have indicated, nothing in the written reasons given by the District Judge for her decision at the time which suggests that financial prejudice to Mr Saron was demonstrated or was regarded by her as a relevant consideration. Furthermore, even if one were to take at face value the submission made on Mr Saron's behalf at the hearing that his reason for choosing not to give oral evidence was that he could not afford to pay for an interpreter, that of itself, in my view, does not begin to justify a finding of financial prejudice nor does the other fact mentioned by the District Judge that Mr Saron's solicitor apparently told the court that he was appearing, at least at one stage of the proceedings, pro bono. It is evident from the size of Mr Saron's costs bill itself -- which was substantially more than that of the council -- that by no means all the work done on his behalf can have been done pro bono. More importantly, there is nothing either in the judgment itself or in the subsequent response to the application to state a case which indicates that any evidence as to Mr Saron's financial position was put before the court or even that any submission or assertion was made on his behalf that he would suffer financial prejudice or hardship unless a costs order was made in his favour.
46. In those circumstances, there was no basis on which the District Judge could reasonably have found that Mr Saron would suffer such prejudice or hardship, bearing in mind the need to demonstrate hardship over and above that which every private party suffers who incurs legal costs.
47. I accordingly do not consider that the additional justifications put forward in the response to the application to state a case are capable in law of justifying the order which was made to award costs in favour of the appellant.
48. In those circumstances and for those reasons, the answer that I would give to the question on which the opinion of the court is sought is yes.
49. Where does that leave things, Mr Paul?
50. MR PAUL: My Lord, it leaves us a great deal later achieving a result that we, in my respectful submission, could and should have achieved in a different division of this court had the application to state a case been acceded to by the Stratford justices.
51. My application is that in these circumstances some costs should be awarded to those who instruct me. It has been necessary to conduct a fair amount of unnecessary litigation in terms of pre-action protocol letters, in terms of preparation for a judicial review hearing. I do not, I am afraid, have a detailed schedule of costs but bear in mind one does not want to place too great a burden on what is effectively another public authority in any event but given that the actions of that authority in declining to state a case cannot, in my respectful submission, be described as reasonable in terms of the position that was presented to it back in 2010 --
52. THE DEPUTY JUDGE: Should I be applying a similar test in this case?
53. MR PAUL: I can think of no good reason, frankly, when one is dealing with an application made by one public authority against another that a similar test should not be applied but in these circumstances it would appear that it cannot be described as reasonable to simply turn round, decline to state a case, decline, in effect, to answer a pre-action protocol letter except to say that "the court has read your letter and will take no action at this time".
54. THE DEPUTY JUDGE: So, on that basis, in principle, the right order would be to award the difference in costs, if any, between what has been incurred and what would have been incurred if the justices had simply agreed to a case to be stated and that the matter had come to court directly in that way.
55. MR PAUL: Arguably so. I do not have a detailed breakdown or schedule of costs. The figure I had in mind was £2,000.
56. THE DEPUTY JUDGE: Do you have any breakdown? What are the whole of your costs?
57. MR PAUL: I do not have a detailed breakdown. As regards counsel's work in this, there has been work in preparing the pre-action protocol letter and in dealing with all steps -- final skeleton arguments, application for permission -- prior to the hearing itself.
58. THE DEPUTY JUDGE: What additional steps could you identify that have been necessary because of the attitude taken by the Magistrates' Court which would not have happened if their response to the application had been agreement to state a case?
59. MR PAUL: As opposed to that, certainly the preparation of the pre-action letter, on the council's side the repeated contact, and one can see from the chronology set out between paragraphs 4 and 5 there was really some delay on each occasion when the council was waiting for responses from the Magistrates' Court and you can see from the exchange of emails -- and those are by no means all of the emails that relate to this case -- from pages 42 to 52, that at each stage the council was chasing the Magistrates' Court for assistance and for responses to documents that had been sent by the council. So, those who instruct me estimate they have done £400 to £500 worth of work in, effectively, the chasing and preparation of this. As regards to differences between a case stated and judicial review, certainly the pre-action stages, the preparation of skeleton arguments and bundles are more onerous in judicial review proceedings than they are necessarily in case stated, which tend to be rather swifter and a simpler listing.
60. THE DEPUTY JUDGE: I hope there would still be a bundle and skeleton argument.
61. MR PAUL: There would of course be a bundle and skeleton argument.
62. THE DEPUTY JUDGE: And without any disrespect, Mr Paul, not surprisingly the submissions made in your skeleton argument quite largely followed submissions already put to the Magistrates' Court, to which there had not been a satisfactory response.
63. MR PAUL: Yes, they are considerably expanded in the skeleton argument for this hearing together with which there is the --
64. THE DEPUTY JUDGE: I suppose you would say that some additional work has been required to address the refusal to state a case rather than simply the underlying decision itself.
65. MR PAUL: Indeed.
66. THE DEPUTY JUDGE: The question of frivolous and so on.
67. MR PAUL: Quite, which is the substance, ultimately, of the judicial review. My Lord, perhaps the order to make would be one -- given that the other side is not represented and have no opportunity to make submissions on costs at this stage, I would invite your Lordship to make an order for £2,000 costs subject to a breakdown of costs from the council and subject to representation within 7 days from the Magistrates' Court.
68. THE DEPUTY JUDGE: I am afraid I am not prepared to order £2,000 because I think that if you wanted to justify that they were costs incurred by reason of what I think is the appropriate measure, which is the refusal to state a case, then you would need to have produced some schedule or basis for putting that forward today.
69. MR PAUL: As regards the application to state a case itself though, in the ordinary course of things, the successful party in those proceedings would have been awarded costs against the defendant Magistrates' Court.
70. THE DEPUTY JUDGE: Is that right? You mean if they had opposed it?
71. MR PAUL: Absolutely. Had this been heard in circumstances where the magistrates had justified their decision according to the terms set out by which they purport to justify their decision in these proceedings, then under those circumstances it must be the case that the court would have come to the same conclusion having heard argument as having read those and one would be in exactly the same position of considering a liability for costs given an unreasonable justification on the terms of the costs award that was made, as one is in these proceedings given that those have been put up as the reasons which your Lordship has been obliged to determine.
72. THE DEPUTY JUDGE: Is that so just in the ordinary course if the Magistrates' Court defends its decision and looses or it is so that the principle should be that it has acted unreasonably in defending its position when it should have been obvious that its decision was flawed? What principle should apply?
73. MR PAUL: The principle that applies obviously would differ in each case in response to the scope of the argument that was being placed before the court. If argument in any proceedings is placed before the court which the court does not consider to be rationally arguable, does not consider to have been well-founded and considers that the court's time would better not have been spent arguing that point, then it is almost invariably the case that that would be visited by an award of costs.
74. THE DEPUTY JUDGE: Certainly if it is unreasonably argued but, as we have discussed quite a lot this morning, in some circumstances at least, provided that the public authority has acted reasonably, even if it is found to have been wrong, it does not get ordered to pay costs.
75. MR PAUL: No. Perhaps there is a difference as well between a regulatory role such as that which the Booth principle deals with and a role which is strictly one to apply the law, which is the job of a Magistrates' Court. There is a difference between a regulatory decision around which a number of judgments must be made -- and particularly in this instant case representation is not merely from the council, the police and other concerned authorities -- and a position where a Magistrates' Court is simply applying the law. It is not a matter of individual judgment, it is a matter of what is ultimately the correct position.
76. THE DEPUTY JUDGE: That is rather an unusual jurisdiction, case stated, is or not? Because normally if the court gets the law wrong, it fortunately does not have to pay the costs of making an incorrect decision.
77. MR PAUL: Indeed. But in these circumstances, where it would have been entirely possibly for the court to reply to the case stated application -- we can have another look at this -- the court could have applied its jurisdiction under section 142.
78. THE DEPUTY JUDGE: It has a jurisdiction, does it?
79. MR PAUL: Under the Magistrates' Court Act 1982 with regard to a sentence or any other order that is made by the court to revisit it, should it feel itself to be in error.
80. THE DEPUTY JUDGE: They can do that, can they?
81. MR PAUL: They can, and there are plenty of things that the court could have done to mitigate, ultimately, the costs of these proceedings. The court in fact did nothing to mitigate the costs of the proceedings and, in my respectful submission, everything to drag them out and to force the council, ultimately, to take the next step at every stage in pursuing litigation.
82. THE DEPUTY JUDGE: I am quite sure you should have some order for costs in your favour but I am trying to ascertain the proper extent of it. There is not any guidance or authority or anything that you help on on the ordinary approach on a case stated?
83. MR PAUL: There is not any guidance to which I can point your Lordship, no. But what I would respectfully submit is that given the quantity of work that is involved in firstly presenting the application to state a case; secondly, drafting pre-action letters; and on behalf of those who instruct me, all of the work that is the involved in the service and compliance with the -- albeit it is supposed to be a relatively informal system -- the fairly formal requirement of Practice Direction 54A, there has been a fairly substantial amount of work that has been put into this and £2,000, in my respectful submission, is not on any analysis a large sum of money for a local authority to be requiring to represent its costs in these affairs.
84. THE DEPUTY JUDGE: Well, I am persuaded that in view of the attitude which the justices adopted towards the application to state a case, both in refusing to state a case in circumstances where it seems to me that it should have been obvious that the application was in no way frivolous and, secondly, in attempting to provide additional justifications for the order made rather than entertaining the possibly that it ought to be reconsidered, it seems appropriate that the magistrates should make a payment in respect of the council's costs. There is no evidence as to what the actual amount of those costs is which would enable me to assess what I think is a reasonable proportion but it does seem to me that the sum of £2,000 which is proposed is reasonable and I will in those circumstances make an order that the Magistrates' Court must pay a proportion of the council's costs, which I assess in the sum of £2,000, on two conditions: the first being that the council provides a schedule of its costs to the justices within 7 days.
85. MR PAUL: Thank you, my Lord.
86. THE DEPUTY JUDGE: And, secondly, that if the justices wish to object either as to the order for costs or as to the amount of £2,000 which I have provisionally awarded, it has liberty to make written objections within 14 days on receipt of the service of the costs schedule, any reply from the council to be sent within 7 days thereafter and the matter to be decided by me on the basis of those written submissions, if such objection is taken.
87. MR PAUL: Thank you, my Lord.
88. THE DEPUTY JUDGE: Is that everything?
89. MR PAUL: My Lord, it is.
90. THE DEPUTY JUDGE: Thank you.