England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		29th October 2012

MR JUSTICE WILKIE:

1. This is an appeal by Angus Heron Limited by way of case stated against a decision of District Judge (Magistrates' Court) Mallon in respect of her adjudication at Dewsbury Magistrates' Court on 13 January 2012 by which she convicted the appellant of five informations alleging failures to comply with enforcement notices which had been served on them by Kirklees Metropolitan Council on 13 August 2007 and 15 September 2009. The question posed which I have to answer is the question, "Was I entitled to conclude that the offences were made out and that the use of the land for certain purposes comprised a breach of the enforcement notices?".
2. This is a matter which has had a rather unfortunate history. The appellant occupies land at Hillside Works, Unsworth, Cleckheaton, West Yorkshire. They have permission for general industrial use (B2). By an enforcement notice dated 3 August 2007 the council issued an enforcement notice alleging breach of planning control, in that without planning permission a material change of use of the land had occurred from B2 use to use for the storage of scrap, unroadworthy vehicles, old tyres, disused engines and parts of vehicles. The appellant was required to cease the use of the land for the storage of scrap vehicles, plant and machinery and for the parking of unroadworthy vehicles and to remove from the land all scrap vehicles, plant and machinery, old tyres, disused engine parts and parts of old vehicles. The time for compliance was three months. The notice took effect on 17 September 2007. A subsequent enforcement notice was issued on 15 September 2009 in respect of land at the same site. The breach of planning control alleged was a material change of use without planning permission of the land from general industrial use (B2) to a mixed use for the storage of operation of vehicles, plant and equipment and for the storage and dismantling of scrap and disused vehicles and the storage of old tyres. That notice required the appellant within three months of the date of its taking effect, 23 October 2009, to cease to use the land for the storage and dismantling of scrap and disused vehicles and the storage of old tyres and remove from the land all scrap and disused vehicles and all old tyres being stored on the land.
3. An appeal was launched against the 2007 enforcement notice but the appeal was withdrawn. An appeal was launched against the second enforcement notice, the September 2009 notice. That appeal was the subject of a decision by one of Her Majesty's Inspectors, a Mr Rogers, following a site visit on 18 January 2010. The appeal was dismissed and the enforcement notice was upheld. The reasoning behind the dismissal of the appeal seems to have proceeded on the factual basis that the appellants operate a plant hire business from the Hillside Works, which is not a use which falls within Class B2. On that basis, Mr Rogers concluded that, irrespective of any judgment as to whether the use for the storage and dismantling of scrap and disused vehicles and the storage of old tyres is incidental to the plant hire use, or forms part of a mixed use, planning permission is required for either of them. In those circumstances there was a breach of planning control and the appeal failed.
4. A series of summonses were preferred in the Batley and Dewsbury Magistrates' Court alleging breaches of both of the enforcement notices, using the land for the storage of scrap vehicles, plant and machinery and the parking of unroadworthy vehicles and not ceasing to use the land for that purpose in breach of the enforcement notice. A parallel summons was issued in respect of the enforcement notice of 15 September 2009. The breaches in respect of the 2007 notice were said to have occurred on 13 April, 30 April, and 19 May 2010 and in respect of the 2009 enforcement notice on 30 April and 19 May 2010. On 13 October and 10 November 2010 the Magistrates' Court heard these summonses and acquitted the appellant of each of them. The council appealed against those acquittals by way of case stated, and the Magistrates stated a case on 9 February 2011.
5. The questions which were posed for the opinion of the High Court were in the following terms:

"1) In acquitting the Respondent, were the Justices entitled to go behind the said enforcement notices and the Appeal Decision of Mr B. S. Rogers, Inspector, appointed by the Secretary of State for Communities and Local Government, dated 28 January 2010, and find that storage within the site was lawfully ancillary to the Respondent's primary business? The justices are invited to take into account, inter alia, Section 285 of the Town and Country Planning Act 1990 and the Mansi doctrine as stated in Mansi v Elstree Rural District Council [1964] 16 P7CR 153, wherein, in relation to ancillary use, there must be lawful use of the said land, and the Inspector found there was not a lawful use within the classification 'general industrial use B2', as defined in the Town and Country Planning (Use Classes) Order 1987?

2) Given that the land in question was classified for general industrial use B2, were the activities complained of at the trial and set out in the said Enforcement Notices, within the general industrial use B2 classification, notwithstanding the decision of the Inspector Mr Rogers, dated 28 January 2010?

3) Following the Inspector's Decision, dated 28 January 2010, were the Justices entitled, in law, to conclude that the Respondent's use as set out was lawful?"

6. The case which was stated included in paragraph 2 the fact that the Magistrates had found a certain number of facts. These included the following:

"(j) An inspection of the two sites was carried out by the appellant on the 13^th April 2010, 30^th April 2010 and 19^th May 2010 and photographs were taken.

(k) The respondent owns and operates a number of vehicles, plant machinery and equipment, all of which are of a specialist nature and of high value. The respondent has facilities for carrying out maintenance, repairs and refurbishment in four garages, three with pits, and employs mechanics and fitters for this purpose.

(l) When vehicles, plant machinery and equipment are no longer operational and it is not economic to repair them for use, they are kept on site for some time, so the specialist parts may be reused on the respondent's operational fleet. Once the vehicles etc. have been cannibalised the remains are scrapped. The respondent disposes of scrap or waste every six to eight months. The respondents do not buy in scrap from others nor do they supply scrap to third parties."

7. The case is then set out. In paragraphs 3 and 4, the respective contentions of the appellant and the respondent are recorded. Paragraph 5 is a single paragraph, but which is divided into a series of separate paragraphs, though not numbered as such. It reads as follows:

"We have considered all the evidence provided and find that the Respondent's business is the provision of services to local authorities and other businesses of clearing and gritting of roads, the removing of spillages on roads, the clearing of drains and gullies etc. These services are provided by the supply of vehicles, plant machinery and equipment with the provision of drivers/operators. The vehicles etc are not hired out with drivers/operators. The vehicles, plant machinery and equipment are kept on the land occupied by the Respondent at Hillside Works, were there is a team of mechanics/fitters to maintain the vehicles etc in garages on site.

We find that the Respondent's use of the land at Hillside works was for the storage, maintenance and repair of the Respondent's operational vehicles, plant, machinery and equipment. We are of the opinion that this primary use falls within the classification 'general and industrial Class B2 use for the carrying on of an industrial process' as defined in the Town and Planning (Use Classes) Order 1987.

We have considered the appeal decision of B. S. Rodgers, Inspector appointed by the Secretary of State for Communities and Local Government given on 28^th of January 2010. However, from the evidence we have considered we do not find that the use of the land detailed in the enforcement notice served on the 15^th of September 2009 was 'a plant hire use' as found by the Inspector. Neither do we find that this particular piece of land is being used as 'a business for the hire of motor vehicles'.

We find the vehicles; plant machinery and equipment in the Respondent's operational fleet are specialist items for which parts are not obtainable or not readily available. We find storage of the non operational vehicles etc. so their specialist parts may be used to repair the Respondent's operational fleet is an ancillary use of the Respondent's primary use of the land outlined in the enforcement notices.

We consider the enforcement notices cannot prevent the Respondent from carrying on their lawful ancillary use rights.

Accordingly, we found the Respondent not guilty and dismiss all five allegations. [...]"

8. The appeal by way of case stated came on for hearing on 12 July 2011, before Langstaff J. The court answered the three questions posed for its consideration in the case stated, each of them in the negative, and the court ordered that the appeal be allowed, the adjudication of the Justices be quashed and that the case be remitted to the said justices for reconsideration in the light of the judgment of the court. Langstaff J gave a reasoned judgment on 12 July 2011. I need not repeat his recitation of the relevant statutory provisions, or some of the relevant cases which were referred to him, which included the case of Mansi already referred to, and also the case of Duguid v Secretary of State for the Environment of Transport and the Regions [2001] 82 PCR 6, and in particular an observation of Ward LJ in that case at paragraph 33 which is referred to in paragraph 31 of Langstaff J's judgment.
9. Langstaff J began that part of his judgment which he entitled "Discussion" at paragraph 33 in the following terms:

"33. As Lord Hoffman observed, the purpose of an enforcement notice is to provide clarity as to what is required in order to comply with planning control. If an enforcement notice is not amended or appealed within the detailed statutory provisions permitted, then it stands in its terms and it cannot be attacked on any basis in respect of which an appeal under Section 174 would run. Any argument, therefore, to the effect that what the respondents were doing on the site at Hillside Works affected by the enforcement notice of 13 August 2007 and on that other part of the site affected by the notice of 2009 could be said not to constitute a breach of planning control by the magistrates must fail, if that is what the enforcement notice itself said. Thus the magistrates were bound to accept the terms of the enforcement notice, in the first case that the change of use had occurred, and the description of the use to which the enforcement notice related. It was open to the respondent to show that it had ceased the use of the land for the storage of scrap vehicles et cetera and it would be open to the respondent to show that if there was a scrap vehicle or unroadworthy vehicle on the land that its presence, and what the respondent did with or to it, was of a different order from the acts which were prohibited by the enforcement notice, such that it was in fact an ancillary use which was lawful, as in the case of the private garage owner and as in the case of the land owner who was permitted on a few occasions to use his land for the temporary market purposes which the GPDO permitted.

34. Upon a construction of the enforcement notice, however, the starting point is the terms of the notice. What the prosecution had to prove was that the land was still being used for storage of scrap vehicles plant and machinery, and whether the respondents had removed all the scrap vehicles plant and machinery, and all unroadworthy vehicles, (subject only to the point as to ancillary use to which the cases refer) was that which the magistrates had to investigate

35. What the magistrates court did, however, was make no findings as to whether or not there had been compliance with the enforcement notice. It made no findings in the terms of Duguid that the respondent had ceased to use the land for the prescribed purpose and had discontinued the permanent purposes prohibited by the enforcement notice but was now using it for the purposes for which he had always been entitled to use it lawfully. It made no finding as to whether the respondent had complied with the clear terms of the enforcement notice. It appears that the justices were influenced by a passage in the Town and Country Planning Encyclopaedia into thinking that they were entitled to make findings for themselves as to whether the matters which had been prohibited by the enforcement notice were matters which could nonetheless lawfully have been carried out within the planning law. It is not for the justices to consider planning issues; that is for other parties in the system provided for by the Town and Country Planning Act: in the first place for the Secretary of State through his inspector, and in the second place for this court if there should be any appeal about it."

The learned judge then addressed the first of the three questions which had been posed for his consideration, and as I have indicated by its terms, it is suggested that the Magistrates had gone behind the enforcement notice, and the appeal decision of Mr Rogers. Langstaff J concluded that they could not go behind his decision, which was to hold the enforcement notice valid, even though they might conceivably have disregarded his reasoning, and accordingly the answer to the first question was "no". As I have indicated, he then went on to consider the second question, and concluded that the answer to that was "no" as well; similarly in respect of the third matter. At paragraph 41 of his judgment, he returned to the findings which he made as to the approach of the Magistrates, and he said this:

"The findings to which this court has come are that the magistrates proceeded on a wrong footing in the law; they had the wrong focus; they did not ask themselves the right factual questions. As I have observed in their determination in the case the magistrates do not appear to have answered whether there was or was not compliance in fact with the enforcement notices, and although there is a heavy hint that the enforcement notices had not been complied with this is, in my view, insufficient in any criminal case to justify this court in exercising its powers to remit the case with a direction to convict."

10. Accordingly, the matter was remitted to the Magistrates' Court for reconsideration in the light of the judgment of Langstaff J. The reconsideration was allocated to District Judge (Magistrates' Court) Mallon. Sensibly, she held a directions hearing on 16 November 2011. In preparation for that hearing, the appellant's solicitors submitted a skeleton argument dated 14 November 2011. At paragraph 6 of that the skeleton argument, the following appears:

"It was not denied that the keeping or storage of the alleged offending materials and vehicles was taking place. The issue was whether the Defendant was entitled to keep or store such materials, notwithstanding that there was an enforcement notice."

And at paragraph 9 under the heading "The Law", the following appears:

"9. It was not, and is not, contended by the Defence that the council's enforcement notices were defective or invalid in law. It follows as a matter of law that if the matters complained of by the local authority have in fact happened in contravention of the wording of the enforcement notices, there is a breach of the enforcement notices and a breach of law for which the prosecution is entitled to prosecute.

10. It is clear upon reading the judgment of His Honour Judge Langstaff [sic] that he did not consider the Magistrates had properly addressed the issue of whether a breach had in fact occurred.

11. It is also the law that an enforcement notice cannot 'bite' on matters which the Defendant is otherwise entitled to do. This is where the question of an ancillary use comes into play, and did before the Magistrates. If a court was to decide that the matters complained of and identified in the enforcement notices were ancillary to the primary use of the planning unit, then the Defendant would not be required to comply with the enforcement notice. That being the case, no offence would be committed."

11. The skeleton argument does not appear to contain any conclusions or any submissions as to what directions should be made. It is clear, however, from the judgment of District Judge (Magistrates' Court) Mallon that some agreement was reached between the parties which was reflected in some directions which were given on 16 November 2011 by DJ (MC) Mallon. It does not appear that those directions were reduced to writing, or at any rate not to a form which is before this court. However, in the judgment following the substantive hearing on 13 January 2012, District Judge Mallon records it in the following terms:

"...it was agreed between the parties that the outstanding issues in the case would be resolved upon representations, without the need for further evidence to be called. Thus the matter came before me for determination on 13/01/2012."

12. It is apparent from the way in which the argument has developed before me that at any rate the appellant had a particular purpose in agreeing to there being no further evidence before District Judge (Magistrates' Court) Mallon, and it appears that this purpose formed the basis of their submissions at the hearing before her. That was to the effect that, notwithstanding the terms of the decision of Langstaff J, in particular at paragraphs 35 and 41 to which I have referred, they were minded to argue that DJ (MC) Mallon should take as established findings of fact made by the Magistrates, and recorded in the case stated, and that included within that finding of fact the passage within paragraph 5 to which I have referred, namely:

"We are of the opinion that this primary use falls within the classification 'general industrial Class B2 use for the carrying on of an industrial process as defined in the Town and Country Planning (Use Classes) Order 1987."

13. The submission before this court, and it would appear before DJ (MC) Mallon, then proceeded along the lines that, by necessary inference, the Magistrates, thus expressing themselves, had found as a fact that, notwithstanding the unassailable assertion in the enforcement notices that there had been a change of use from B2 to either a mixed use or use for storage of scrap vehicles et cetera, the Magistrates had found as a fact that that impermissible use had, at some point, ceased and that, by the time of the dates of the summonses, they had found as a fact that the primary use of the site did fall within industrial class B2 use and that, furthermore, there was a finding of fact by them that the use complained of, as described in the evidence, constituted an ancillary use in respect of the permitted class B2 use.
14. It was on that basis, it would appear, that the appellants were content that DJ (MC) Mallon should not receive further evidence but should proceed simply by way of receiving further representations, to the effect that, by virtue of the findings of fact which they said were made by Magistrates, there would, inevitably, be an acquittal, this submission being made notwithstanding that Langstaff J seemed to understand the evidence and the findings of fact which he found to have been made by the Magistrates as containing a "heavy hint" that the enforcement notices had not been complied with.
15. Mr Holroyd, who appears for the council, was not at the directions hearing before DJ (MC) Mallon, nor at the hearing by her of the summons, and so is not in a position, nor does he have any instructions which would enable him, to say what it was that the respondent had in mind when agreeing to these directions. On the face of it, where a case has been remitted to a differently-constituted body by a judge who has said in terms, in more than one place in his judgment, that the previous body has not made the necessary findings of fact, indeed has addressed the wrong factual questions, it is somewhat odd to find that different body being asked to deal with the matter without hearing evidence de novo and only hearing it based on representations at any rate without there being in existence a clear and comprehensive record of the evidence that was before the Magistrates' Court which first heard the matter. Certainly there is nothing in the way in which District Judge Mallon described the directions which she was invited to make, and did make, which suggests that, in any way, she had made directions that she should be bound by findings of fact made by the Magistrates. Indeed, that would cut across what Langstaff J had stated was a failure by the Magistrates to find facts on the important relevant questions and that the wrong factual questions had been asked.
16. Mr Barrett has, at the forefront of his submissions, contended before me, as no doubt he contended before DJ (MC) Mallon, that the Magistrates found, in their case stated, that as a matter of fact the unlawful use which had informed the enforcement notices had ceased, and in its place had arisen a lawful use general industrial class B2, and that somehow or other the reasoning in paragraph 5 which informed Langstaff J's conclusion that the Magistrates had asked themselves the wrong questions, and had sought to go behind the enforcement notice itself, could be divided up so as to leave unscathed that particular finding of fact. In my judgment that is a misconceived and a hopeless argument. First of all, there is no statement by the Magistrates in paragraph 5 that any unlawful use as identified in the enforcement notice had ceased, to be replaced by a lawful use. On the contrary, it is clear, from the process of reasoning which is contained in paragraph 5 as a whole, that it was this paragraph in which the Magistrates were engaged in what Langstaff J found as an impermissible exercise. That was going behind the enforcement notice assertion that there had been a change of use, an assertion which had not been subject to successful appeal or otherwise subject to challenge, and, therefore, which had become unassailable.
17. In my judgment, therefore, Mr Barrett is wrong when he asserts that, upon a proper construction of the Magistrates' findings of fact, and assuming that their findings of fact were binding on DJ (MC) Mallon, she could not avoid acquitting his clients. However, he also has a secondary argument, which is in a sense procedural, but is also informed by the terms of the judgment itself. In the judgment of District Judge MC Mallon, at paragraph 11 she referred to the fact that the appellant relied heavily on Duguid and Mansi, and she, in particular, referred to paragraph 35 of Langstaff J's judgment, in which he commented that the Magistrates' Court had made no findings in the terms of Duguid about cessation of use for the proscribed purpose, and whether the defendant was now using it for a lawful purpose, and, if so, whether the use complained of was ancillary to that lawful purpose, so as to be lawful in planning terms. In that paragraph, she limits herself to quoting from two passages in the judgment of Langstaff J. She then, in paragraph 12, stated that the issue is simple, citing Lord Hoffmann in the case of Wicks [1998] AC 92:

"The duty of the landowner is perfectly clear: if the enforcement notice has not been quashed, he must obey it."

DJ (MC) Mallon then turns to the evidence, and she describes it in the following terms:

"...as heard, viewed and read in full by the magistrates : this included that of Martyn Travis, Planning Officer, who exhibited a number of photographs showing the relevant land being used for storage of scrap vehicles, plant and machinery and the parking of unroadworthy vehicles as well as the land being used for storage and dismantling of scrap, and disused vehicles and the storage of old tyres, on various days between 13/4/10 and 19/5/10. There is nothing recorded to suggest that the Justices did not accept this as factually accurate evidence."

She then, in paragraph 14, recites paragraph 6 of the defence skeleton dated 14 November 2011, to which I have already referred, and quotes the relevant part of it. Her conclusion at paragraph 15 reads as follows:

"This being the case, in asking the correct questions identified by the Court above and accepting this uncontroverted evidence, I find the Defendant guilty of all the offences."

18. It is to be observed that what DJ (MC) Mallon appears to be doing is looking at the evidence which she says was before the Magistrates. She is not taking as read the findings of fact of the Magistrates. By so doing, she was acting consistently with the directions she had given, as expressed in paragraph 6 of her decision. But it is clear, as Mr Barrett has submitted, and which I accept from him, that at the hearing before DJ (MC) Mallon there was little or no consideration of what the evidence before the Magistrates had been. In particular whether it included and/or was limited to the written statements of Martyn Travis under section 9 of the Magistrates' Court Act 1980, or whether it also included the oral evidence which was given by Mr Barrett's client and/or by Mr Travis, and what such oral evidence was given by those two individuals, in-chief, and in cross-examination. There is equally no explicit consideration by DJ (MC) Mallon of the issue which was being run by the defendant at that stage. That was, given the description by the Magistrates of the type of business conducted on the site, and the way in which it used the, no longer roadworthy, vehicles as a source of specialist parts for the other vehicles which they were running, and, ultimately, the way in which those vehicles were, from time to time, eventually scrapped, that a question was raised for consideration, whether that process, as described, did mean that, at some point, there was compliance with the enforcement notice, followed by further activity which might, or might not, constitute a breach of the enforcement notice depending upon its scale and intensity and depending upon whether it remained ancillary to the B2 general industrial use, or became of such a scale or intensity that it became the main use itself, or transformed the user into a mixed use. All of that had been placed in issue by the skeleton argument. All of that, it would seem, was in issue in the evidence, certainly the evidence that had been placed before the Magistrates' Court. In that context, Mr Barrett says that it should have become apparent to DJ (MC) Mallon that her direction that there should be no further evidence placed her in an invidious position potentially, of having to consider what the evidence was before the Magistrates where the parties were not aware of what, if any, record had been kept of that oral evidence and to what extent it was an accurate record, and what that evidence amounted to. It is true that the parties seemed to have placed DJ (MC) Mallon into that difficult position, in the case of the appellants, because they had in mind running a case which, as I have indicated, was wrongheaded and misconceived as to what was meant by certain passages in the judgment of Langstaff J. Nonetheless, Mr Barrett says that DJ (MC) Mallon should, at some point, have realised the difficult position which she had been placed in, and should not have continued to deal with this appeal on the, rather odd, basis that she was looking at the evidence which had been presented to another court, and where there was apparently no definitive or authorised record of what that evidence had been.
19. In my judgment, even although, as Mr Holroyd has fairly pointed out, the photographic evidence was fairly cogent on the issue. And even though, as Mr Barrett has accepted, it was never suggested that Mr Travis's factual description of what he found, as evidenced by his written statements, was not in dispute, it does seem to me that, procedurally, DJ (MC) Mallon was placed, by the prior agreement of the parties, in an impossible situation, and that, ultimately, in attempting to make a decision against those procedural constraints, she failed properly to address the issue which was placed before her foursquare, namely the questions: first, whether there had at any stage been compliance with the enforcement notice; second, whether what transpired thereafter, potentially, did amount to a breach of the enforcement notice; third, whether such activity as did transpire was of such a scale or intensity to cease to be ancillary to the lawful B2 use, and to become either the main use itself or constitute a change of use to mixed use; and fourthly, whether she was unable, or failed, to describe adequately what the sources of evidence were to which she had regard, in addition to the evidence of the photographs produced by Mr Travis.
20. In those circumstances, in my judgment, procedurally, the decision of District Judge (Magistrates' Court) Mallon was flawed. Accordingly this appeal by way of case stated must succeed. It necessarily follows that this matter must be sent back to the Magistrates' Court for a full de novo hearing at which the relevant issues may properly be developed in the light of the evidence which is called by the parties on that occasion, so that the tribunal making the decision is the same tribunal as hears the evidence. The answer to the question posed by DJ (MC) Mallon is that she was not entitled to conclude that the offences were made out and that the use of the land for certain purposes comprised a breach of the enforcement notices.
21. So the order will have to be that this decision is quashed and a direction that it go back for a full rehearing. Whether before the same Magistrate or different Magistrates is something which may be the subject of submissions. Langstaff J seemed, at least by his order, to indicate that it should have gone back to the same Magistrates. Perhaps that is where the problem arose.

MR BARRETT: My Lord, I would ask for the order that your Lordship has indicated, namely that the order and conviction before District Judge Mallon be quashed, and of course that the matter be remitted for determination by a new bench at the Magistrates' Court who will determine both issues of law and fact at the same hearing. My Lord, in addition --

MR JUSTICE WILKIE: Yes, I think that must be right. I think, Mr Holroyd? When you say you – not specifying whether it is lay or another DJ (MC) --

MR HOLROYD: It doesn't matter whether – indeed, my Lord.

MR BARRETT: My Lord, in addition I would make an application for costs on behalf of the appellant in this case. I believe your Lordship has been provided with a schedule of costs by both parties.

MR JUSTICE WILKIE: I have got a list of the respondent's schedule. I may have the appellant's schedule, but I may not.

MR BARRETT: My Lord, the total sum claimed by the appellant is £14,063.80.

MR JUSTICE WILKIE: Yes.

MR BARRETT: But your Lordship will see from the breakdown, if I may anticipate the argument, the respondent's costs are £6,193.60, but in truth my Lord the difference relates not so much to the hours that were put in, but the hourly rates, because Kirklees seemed to have used a number of assistant legal officers, and perhaps more junior solicitors, in the preparation of the case such that the hourly rate was significantly below that of Mr Bodnar, who is a Grade A fee earner, charging at rates which are not unfamiliar, I am sure, to this court already, at £180 per hour. The hours that were done by both parties are not dissimilar, bearing in mind of course that the 21, 22 hours or thereabouts prepared by Mr Bodnar would have been reflecting the fact that we are of course the appellant in this particular case, and would have to take more of the running. There was a number of hours prepared for, just by way of example, the Kirklees case, the first page --

MR JUSTICE WILKIE: He seems to talk about -- are they hours?

MR BARRETT: Yes, I think 2.18 is the hourly rate, £77 per hour. So the first page is 14 hours, or just short of 14 hours. Over the page, my Lord, letters in and out --

MR JUSTICE WILKIE: That seems to be -- that is per letter, is it not?

MR BARRETT: I think that is probably per letter, the charge rate per letter. But then over the page at meetings, there is a couple -- some additional matters. Attendance at court, my Lord.

MR JUSTICE WILKIE: It is not that far apart.

MR BARRETT: Not that far apart in terms of hourly rate. My learned friend's fees are – at least seem to me to have brought together all these, the skeleton argument and the council's fees into one figure. Not dissimilar, mine has been broken down more precisely because I had previously advised in respect of the draft case, and drafted the skeleton and put together the bundle of authorities, so my Lord in truth, although the figures are different in terms of the hours deployed on the case, I don't think there's a huge amount of difference between the parties, and I therefore claim the sum set out in the schedule of costs.

MR JUSTICE WILKIE: Mr Holroyd, what do you say about costs?

MR HOLROYD: My Lord, I can say little more really, other than that Kirklees' costs are £6,000 as opposed to £14,000.

MR JUSTICE WILKIE: Yes.

MR HOLROYD: I accept what my learned friend says about Mr Bodnar's rate being higher than Kirklees Council's rate. I make the point that my learned friend's brief fee and preparation is £7,500 as opposed to £4,500 on behalf of me, but that is a matter for your Lordship.

MR JUSTICE WILKIE: You are content with the principle that you should pay his costs?

MR HOLROYD: Given your Lordship's decision, I think I have little room to manoeuvre.

MR JUSTICE WILKIE: I think you probably do. You want me to summarily assess, obviously?

MR BARRETT: Yes, I would, my Lord. My Lord, there is one further piece of housekeeping that I need to address you on at the end of that exercise.

MR JUSTICE WILKIE: Yes, okay. Well, it does seem to me that it is unrealistic to expect costs on the basis that the Grade A fee earner should have done it all, and obviously council's fees are highly individual, but there is quite a gap there. Doing the best I can, what I am going to say is that I will summarily assess the costs at £10,000 including VAT.

MR BARRETT: Thank you, my Lord. My Lord, in the court below before District Judge Mallon, there was a substantial costs order, I think from memory of the order of about £6,000. Can I be absolutely clear that your Lordship will also be quashing as part of the judgment the order in that case for costs, and that costs therefore will be determined both in the hearing before District Judge Mallon and the hearing indeed before that?

MR JUSTICE WILKIE: A costs order against your clients of £6,000?

MR BARRETT: There is a costs order against my client. I am not asking for the costs of that hearing --

MR JUSTICE WILKIE: No, no, I understand that.

MR BARRETT: I would like that costs order to be quashed, and my client to be repaid the sum that has been expended and handed over to Kirklees, and the costs of the hearing before the newly-constituted bench be at large both for the first Magistrates' Court hearing, the one before District Judge Mallon, and of course the costs associated with the determination, finally one would hope, of the case before them.

MR JUSTICE WILKIE: Is the order that DJ (MC) Mallon made, is that in the bundle anywhere?

(Pause)

MR JUSTICE WILKIE: I just wondered whether the £6,000 was intended to incorporate the Magistrates' Court and the hearings before DJ (MC) Mallon? I think I have -- the £6,000 was the costs before DJ (MC) Mallon.

MR JUSTICE WILKIE: Yes, and various hearings before that. Mr Holroyd, I think it necessarily follows that if I am quashing her decision, I am quashing any order for costs that she made, but I have to make clear that the costs before DJ (MC) Mallon are nonetheless a live issue to be decided by the bench to which I have remitted the matter, so that depending on the outcome you may wish to claim those costs or Mr Barrett may be wishing to claim those costs. Do you have any observation to make?

MR HOLROYD: I think that is the correct way to adjudge it, my Lord.

MR JUSTICE WILKIE: Yes, I agree. Very well, I will make clear that the order of DJ (MC) Mallon which I quash includes the order for costs in the sum of £6,000 she made in favour of Kirklees and against Angus Heron Limited, but I shall reserve the question of the costs of the hearing before DJ (MC) Mallon to the bench to which I remit the hearing.

MR BARRETT: Yes, and my Lord, can I just add the words together with the fine that was imposed by District Judge Mallon, because of course there was a fine composed and paid, and so --

MR JUSTICE WILKIE: Was that included in the £6,000 or was that --

MR BARRETT: No, no, it is separate.

MR JUSTICE WILKIE: Well, obviously yes.

MR BARRETT: Yes, thank you my Lord.

MR JUSTICE WILKIE: The conviction and the fines will be quashed.

MR BARRETT: The fine and costs, thank you very much.

MR JUSTICE WILKIE: Right, that is it, is it not? Thank you very much.

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