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
		18 December 2014

1. MR JUSTICE WILKIE: The Mayor and Burgesses of the London Borough of Newham appeal by way of case stated against a decision of the Thames Magistrates' Court upon trial of Khalis Miah, the interested party, which took place on 7 May 2013.
2. The claimant was prosecuting Mr Miah for an offence said to have been committed by him pursuant to sections 179(1) and (2) of the Town and Country Planning Act 1990, namely being the owner of the land in question and being in breach of an enforcement notice. There had been a preliminary issue argued as to whether evidence in the form of certificates of service signed by Luke Cadman on 29 September 2010 could be admitted, notwithstanding the fact that he was not in attendance at court. The magistrates concluded that it could be. The council's only live witness was Stephen Pavett, a planning enforcement officer. He produced a number of documents which were exhibits to a witness statement, he having given evidence in accordance with that witness statement in chief. He was also subject to cross-examination on behalf of Mr Miah.
3. At the close of the prosecution case, counsel for Mr Miah made a submission of no case to answer. The justices allowed that submission of no case and dismissed the charge. The council applied for the magistrates to state a case pursuant to section 111 of the Magistrates' Court Act 1980. It is unnecessary for me to rehearse the sequence of events which then resulted but suffice it to say that a judicial review claim form was issued by the council on 7 August 2013 seeking review of decisions of the magistrates dated 29 May, 27 June and 7 May, all in 2013, the first two of which concern their decision not to state a case.
4. However, those judicial review proceedings have been superseded by the fact that the magistrates have stated a case in a form with which the council is not entirely satisfied, in particular the questions posed for the opinion of the High Court. However, I am satisfied that the case stated is sufficient for the purposes of this appeal and that is the document which forms the foundation of the appeal.
5. The case stated cites that on 13 December 2012 an information was preferred by the council against Mr Miah, namely that on 10 November 2011 Mr Miah, being the owner of 91 Dongola Road, Plaistow, London E13, was in breach of an enforcement notice issued on 24 September 2010 by the council in that he had not taken steps required by the notice to be taken by 12 September 2011 and, accordingly, he was in breach of that notice and had committed the offence under section 179(2) of the Town and Country Planning Act 1990.
6. The statement of case then sets out in brief form the evidence. I do not need to rehearse it in full, suffice it to say that the issues which became relevant for the purposes of this appeal were twofold. The first concerned the question of service of the enforcement notice upon Mr Miah and the second concerned the question of whether the planning breaches asserted in the enforcement notice had begun more than four years prior to the issuing of the enforcement notice.
7. In relation to service, the evidence of Mr Pavett was referred to, as was the section 9 statement of Mr Cadman. As far as Mr Pavett was concerned, the case stated says as follows:

"He was unable to say why the notice had not been issued on the previous owner of the property ... He was not present when the notice was served and so was unable to say whether or not it was served on Mr Miah personally -- that evidence should come from the server, Mr Cadman."

8. The case stated referred to the documentation produced by Mr Pavett, which included certificates of service of the enforcement notice executed by Mr Cadman who certified that he had served the enforcement notices by hand upon Mr Miah as well as upon occupiers of the two flats at that address.
9. Once again the magistrates stated that they were unable to state whether or not service was actually to Mr Miah in person. Also in relation to the issue of service and how it might give rise to a defence to the offence alleged, the case stated went on to say that:

"In addition, one of the exhibits is the council's legal register which is illegible but which the witness told us contained the fact that the enforcement notice had been issued and no planning permission has ever been granted for the development that was the subject of the notice."

That recital of the evidence on the issue of service is contained in paragraph 3 of the case stated. In relation to the date when the conversion, which was said to be in breach of planning law, took place, the case stated in paragraph 3 also referred to the evidence of Mr Pavett. It was said:

"He did not know when the conversion took place and so was not able to say whether or not it was within the four years prior to the notice being issued ... He agreed that there had been council tax levied on two flats but could not say from when that had happened."

The case stated also recorded that Mr Pavett agreed:

"... that there was an appeal by Mortgage Express against the enforcement notice issued on 24 September 2010 but Mr Miah did not appear to be a party to those proceedings. Mr Pavett was unable to say whether or not he had been served with notice but agreed there was no reference to Mr Miah in the appeal documentation."

At paragraph 4 of the case stated, the magistrates then stated that they found the following facts and they then set them out:

"(a) Mr Miah was the owner of the land when the enforcement notice was issued and had been since 11 July 2007;

(b) The Land Registry entry dated 26.10.2011 shows Mr Miah's address as 91 Dongola Road;

(c) The property at 91 Dongola road comprised two separate dwellings;

(d) That Mr Miah purchased the property subsequent to the conversion;

(e) That Mr Miah has another address registered with the council for the purpose of council tax, which is 7 Thorne House, Launch Street, Docklands, London E14. That address was disclosed to Mr Pavett around 5 July 2012 when a copy of the letter dated 21 May was sent to Mr Miah at that address;

(f) We could not be sure that the conversion has to take place within the four years prior to the issue of the enforcement notice because no one could give evidence on that issue [There is obviously a typograph in that sentence];

(g) We could not be certain that the enforcement notice was served upon Mr Miah. There were notices served upon him at 91 Dongola Road, Plaistow ... and also two notices to each of Flat 1 and Flat 2, 91 Dongola Road. He was not personally served by Mr Cadman and the letter was left with an individual who the witness admits could have been a tenant [that must refer to Mr Pavett's evidence];

(h) Mr Miah has another address, although we do not know how long he has had that address;

(i) Mr Miah's place of residence is not known."

10. The council's submissions are then recorded in the case stated, which included that Mr Miah was the owner of 91 Dongola Road and that service at that address constituted good service upon him. It was further submitted that neither the issue of service nor the date of conversion is capable of constituting a defence to the allegation. It is submitted that the fact that a copy of the notice was on the council's legal register was sufficient and that they did not have to prove the date of conversion.
11. Mr Miah's submissions at half time were that the service of the notice was defective. There was no evidence that service had been effected when the local authority became aware of the defendant's address. The local authority could not show that the conversion took place within a four year period. The evidence of Mr Pavett was vague and inherently weak under the Galbraith test.
12. The case stated then set out the magistrates' conclusion in the following terms:

"We were of the opinion that the evidence of Mr Pavett was such that it was vague and inherently weak in that a notice had not been served correctly and at the last known address or at all, as he was unable to say upon whom the notice had been served or the circumstances of the delivery. The test we applied was whether the prosecution had adduced evidence which was such that a reasonable tribunal could convict. There was no evidence ... nor that the enforcement notice had been issued within a four year period since the conversion, as conceded by Mr Pavett. Combining all the facts given to us by Mr Pavett under cross-examination, we applied the second limb of the test under R v Galbraith and we upheld a submission of no case to answer on the basis that the evidence was vague and inherently weak and taking the prosecution case at its highest, properly advised, the tribunal could not properly convict."

13. Before turning to the questions posed in the case stated, I will summarise the relevant statutory provisions and the relevant case law. Enforcement is governed by part 7 of the Town and Country Planning Act 1990. Section 171A defines certain expressions. Subsection (1) provides:

"For the purposes of this Act -

(a) carrying out development without required planning permission ... constitutes a breach of planning control.

(2) For the purposes of this Act -

(a) the issue of an enforcement notice (defined in section 172) ... constitutes taking enforcement action."

14. Section 171B concerns time limits and provides, insofar as is relevant, as follows:

"(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building ... or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed."

15. Section 172 concerns issue of enforcement notice. Subsection (1) provides:

"(1) The local planning authority may issue a notice ... where it appears to them -

(a) that there has been a breach of planning control; and

(b) that it is expedient to issue the notice ...

(2) A copy of an enforcement notice shall be served -

(a) on the owner and on the occupier of the land to which it relates ...

(3) The service of the notice shall take place -

(a) not more than twenty-eight days after its date of issue; and

(b) not less than twenty-eight days before the date specified in it as the date on which it is to take effect."

16. Section 173 concerns the contents and effect of the notice. Subsection (1) provides:

"(1) An enforcement notice shall state -

(a) the matters which to appear to the local planning authority to constitute the breach of planning control ...

(3) An enforcement notice shall specify the steps which the authority require to be taken or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes ... [These purposes include remedying the breach] ...

(8) An enforcement notice shall specify the date on which it is to take effect and ... shall take effect on that date.

(9) An enforcement notice shall specify the period at the end of which any steps are required to have been taken ..."

17. Section 174 concerns appeal against an enforcement notice. It provides:

"(1) A person having an interest in the land to which enforcement notice relates ... may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.

(2) An appeal may be brought on any of the following grounds - ...

(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

(e) that copies of the enforcement notice were not served as required by section 172."

18. Part XII of the Act concerns validity. Section 285 concerns validity of enforcement notices. It provides:

"(1) The validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought.

(2) Subsection (1) shall not apply to proceedings brought under section 179 against a person who -

(a) has held an interest in the land since before the enforcement notice was issued under that Part;

(b) did not have a copy of the enforcement notice served on him under that Part; and

(c) satisfies the court -

(i) that he did not know and could not reasonably have been expected to know that the enforcement notice had been issued; and

(ii) that his interests had been substantially prejudiced by the failure to serve him with a copy of it."

19. Part XV of the Act contains miscellaneous and general provisions. It includes section 329, providing for service of notices. It provides:

"(1) Any notice or other document required or authorised to be served or given under this Act may be served or given either -

(a) by delivering it to the person on whom it is to be served or to whom it is to be given; or

(b) by leaving it at the usual or last known place of abode of that person or, in a case where an address for service has been given by that person, at that address ..."

20. The offence with which Mr Miah was charged, and of which he was acquitted by the magistrates, is provided for by section 179 of the Act. This is entitled "Offence where enforcement notice not complied with", and it provides as follows:

"(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.

(2) Where the owner of the land is in breach of an enforcement notice, he shall be guilty of an offence...

(7) Where -

(a) a person charged with an offence under this section has not been served with a copy of the enforcement notice; and

(b) the notice is not contained in the appropriate register kept under section 188,

it shall be a defence for him to show that he was not aware of the existence of the notice."

21. It is to be observed that the question of the time limits affecting the validity of an enforcement notice which has been issued longer than four years after the date on which the unlawful development was completed is not to be relied upon in any proceedings brought under section 179, save in the circumstances set out in subsection (2).
22. The way by which the validity of an enforcement notice can be challenged on the grounds that it was not issued in good time is provided for by section 174(2)(d). It was on that basis that the council argued before the magistrates that the line of questioning of Mr Pavett, as to whether he knew whether or not the conversion had been completed longer than four years before the issue of the enforcement notice, was irrelevant to the question of whether Mr Miah was guilty of an offence under section 179(1) and (2).
23. As far as the service of the enforcement notice was concerned, the appellant contended that the defence which is given by section 179(7) is one which only arises when three conditions are met, only one of which concerned the question of whether the person charged with the offence had been served with a copy of the enforcement notice. The appellant argued that, in any event, it had been validly served, notwithstanding the absence of live evidence from Mr Cadman relying on his certificate of service; but in any event the defence could only be established if two further conditions were met, namely that the notice does not appear in the section 188 register and that, in addition, it is still for the defendant to show not only that he was not served with the notice but that he was not aware of its existence.
24. As to the relevance of the question of the validity of the enforcement notice by virtue of the time provisions, the appellant relies on the House of Lords decision in the R v Wicks [1998] 1 AC 92, where the issue considered by their Lordships was the question whether the validity of the enforcement notice could be raised in criminal proceedings under section 179. At page 119 in the speech of Lord Hoffmann, he introduced the subject in the following terms:

"The history shows that over the years there has been a consistent policy of progressively restricting the kind of issues which a person served with an enforcement notice can raise when he is prosecuted for failing to comply. The reasons for this policy of restriction are clear: they relate, first, to the unsuitability of the subject matter for decision by the criminal court; second, the need for the validity of the notice to be conclusively determined quickly enough to enable planning control to be effective and to allow the timetable for service of such notices in the Act to be operated; and thirdly, to the fact that the criminal proceedings are part of the mechanism for securing enforcement of planning control in the public interest."

He concludes at page 122F:

"All these reasons lead me to conclude that 'enforcement notice' in section 179(1) means a notice issued by a planning authority which on its face complies with the requirements of the Act and has not been quashed on appeal or by judicial review ... The matters which he proposed to raise at his trial were irrelevant."

25. On the question of the impact on the failure to serve an enforcement notice on the criminal proceedings, reliance is placed on the case of R v Collett [1994] 1 WLR 475, which related to the previous legislation but where the sections referred to in the passage I am about to cite reflect respectively sections 172, 179(7) and 285(2) of the 1990 Act. In the judgment of Latham J, which was the judgment of the court, he said at page 483E:

"In our judgment, that case [McDaid v Clydebank District Council [1984] JPL 579] is clear authority for the proposition that the failure to serve an enforcement notice in accordance with section 87(4) does not render the notice a nullity ... It is in our view plain that at least in the context of the proceedings taking place pursuant to the scheme set out in the Act ... the question of defective service can only be raised under sections 88(1) and 243(2). Otherwise, any challenge is a challenge to the validity of the enforcement notice on the ground set out in section 88(1)(e) which is precluded by section 243(1)."

At page 485C:

"... it is quite plain that knowledge of the enforcement notice is not an essential part of the offences. This latter subsection would be wholly unnecessary if the prosecution had to establish knowledge of the enforcement notice in order to prove the offence. Section 243(2) provides a very limited opportunity to challenge the validity of the enforcement notice, and therefore defend the charge under section 89(5), to a restricted category of those who did not know that an enforcement notice had been served."

26. Again, in respect of want of service, in Goodall v Peak District National Park Authority [2008] EWHC 734, the divisional court, in a judgment given by Keene LJ, with which Treacy J agreed, he said at page 2709G as follows:

"It is also, perhaps, to be noted that the statutory provisions in the 1990 Act clearly leave no scope for a defence to a prosecution under section 179 simply because the defendant did not know of the enforcement notice during the period for lodging an appeal so long as the enforcement notice was properly served. I say that because section 179(7) does provide a defence, but in much more restricted circumstances. [The terms of the subsection are then set out] It will be seen from that that parliament was prepared to provide a defence only if the lack of knowledge of the enforcement notice is accompanied by a failure to serve it and a failure to put it into the appropriate register. Lack of knowledge by itself under the act is no defence to a prosecution."

27. Finally, in relation to the time point, in Vale of White Horse District Council v Treble-Parker [1997] JPL 660, magistrates had permitted the defendant to lead evidence to demonstrate that, or in the magistrates' finding that, no enforcement action could be taken against the use of the land for the purposes in question by reason of the fact that the land had been used for that purpose for a period of in excess of 10 years prior to the issue of the enforcement notice. It was said that the magistrates were wrong in law in conducting that exercise. Particular emphasis was placed on the scheme, as provided for by section 285(1), and at page 667, Otton LJ, giving the judgment of the court, said as follows:

"In my judgment the central question to be determined is whether section 285(1) should be interpreted as preventing the leading of evidence to establish the lawfulness of an existing use which cannot be restricted by enforcement action, whether that evidence of lawful use is evidence of the use having continued for more than 10 years, or evidence of it being ancillary to a primary use.

In reaching my conclusions I take as my starting point the precise language of section 285 [then cited]. In my judgment, in spite of the attractive argument advanced by Mr Murray Hunt, the validity of this Enforcement Notice was being questioned before the Magistrates. I would answer the questions posed in the Case Stated in the negative.

1. The magistrates were wrong in law in permitting the defendant to lead evidence to demonstrate that, or in finding that, no enforcement action could be taken against the use of the said land for the purpose of the storage of motor vehicles by reason of the fact that the said land had been used for the said purpose for a period of in excess of 10 years prior to the issue of the said Enforcement Notice."

At page 668 he said this by way of reasoning:

"In my judgment neither sub-paragraph (d) nor sub-paragraph (f) [of section 174(2)] is justiciable before the justices. These raise planning issues which are often complex and more appropriately resolved before an inspector at a local inquiry."

28. There was no dispute before the magistrates, nor did they address themselves to any of the following issues: first, that an enforcement notice in appropriate form had been issued on 24 September 2010, stated to take effect on 24 October 2010, setting out the requirements to be complied with five calendar months from 24 October 2010. The certificate of service by hand was in evidence in the name of Mr Cadman, dated 29 September 2010, which certified that he served Khalis Miah at 91 Dongola Road, Plaistow, being his last known place of abode or business, with an enforcement notice by hand on 24 September 2010.
29. It was also in evidence that the appeal against the enforcement notice brought by the mortgagees had been originally brought on 3 bases under section 174(2), including subsection (d), but that, by a letter dated 9 November 2010, the appellant's agent confirmed that her client was no longer in a position to substantiate an appeal on that ground. The appeal on the other grounds was dismissed on 12 April 2011.
30. There was also evidence in the form of the proprietorship register that Mr Miah was the proprietor of 91 Dongola Road, Plaistow, having acquired it on 11 July 2007, having paid the price for it on 20 June 2007, it being subject to a charge of the same date in favour of Mortgage Express, who had appealed the enforcement notice.
31. There was also in evidence the register containing the schedules of enforcement notices which was presented to the magistrates in a somewhat unsatisfactory form. The spreadsheet is legible, though the printing is small, but, in an effort to be helpful, the relevant entry relating to 91 Dongola Road is highlighted but in a way which substantially obscured what is written underneath it, hence the reference by the magistrates to it being illegible.
32. In essence, the appellant's case is that the magistrates erred in law in two respects. First, it is said that they erred in law by ruling that, at the end of the prosecution's case, taking the prosecution case at its highest, no reasonable tribunal could convict by reason of the issue of service of the enforcement notice on Mr Miah. Whilst there were undoubtedly difficulties in respect of the evidence of service, in particular as to whether or not service was in person or was effected by leaving at 91 Dongola Road, and, if so, whether that was Mr Miah's last known place of abode, the appellant points out that, even if it was not duly served in accordance with the statutory requirements of section 329, that fact alone did not give rise to the statutory defence under 179(7) because the notice was contained in the appropriate register kept under section 188. That was in evidence before the magistrates and, whilst they expressed concern as to its legibility, they did not make any finding that the notice was not contained in that register.
33. Furthermore, even if that were the case that the magistrates concluded that it was not in the register, it is pointed out that the defence is still not established unless the defence shows that he, the defendant, was not aware of the existence of the notice. It is said that there was no evidence whatsoever to that effect before the magistrates at the stage at which they dismissed the charge.
34. Mrs Hamid, for the respondent to the appeal, seeks to argue that there was evidence on the basis of which the magistrates were driven to the conclusion that Mr Miah was not aware of the existence of notice, but the furthest she can go is to rely on the wholly equivocal evidence of Mr Pavett, who was not there and was unable to state whether or not service was actually to Mr Miah in person. Certainly there is no finding to the effect that Mr Miah had shown that he was not aware of the existence of the notice, regardless of whether it was served on him.
35. In my judgment the magistrates erred in law by using the section 179(7) defence as a basis to discharge Mr Miah at the close of the prosecution's case. At that stage there was no lawful basis upon which it could do so. It might be different had Mr Miah, in presenting his case, given evidence that he was not served personally and that he had no awareness of the existence of the notice and if that evidence had been accepted by the magistrates as more probably true than not, but that was not the state of the case at the point at which it was dismissed.
36. As far as the time limit point is concerned, although there was some uncertainty within the ranks of the council as to when it was, in relation to the issue of the enforcement notice, that the development complained of had been completed, in my judgment the very clear statutory provisions of section 285(1), as dealt with by the courts in the cases to which I have referred, clearly indicate that the issue was not one with which the magistrates could properly be involved. The only circumstances in which they could be involved would be under section 285(2), but that would require not only a lack of service of the enforcement notice but also that the defendant satisfied the court that he did not know, and could not reasonably have been expected to know, that the enforcement notice had been issued and that his interests have been substantially prejudiced by the failure to serve him with a copy of it. On any view, that does require the person seeking to go behind the enforcement notice relying on section 285(2) to give evidence to the court in order to establish those subsidiary, but necessary, bases for the court to have any entitlement to investigate that issue. In my judgment the Magistrates' Court were wholly wrong in being led to consider that issue.
37. I therefore turn to the questions which are posed. Question one is:

"Were we entitled on the evidence to conclude that service of a notice on the defendant at 91 Dongola Road did not constitute valid service on him under the provisions of the Town and Country Planning Act 1990?"

In my judgment it is unnecessary to answer this question. The evidence plainly was equivocal on the issue but the important point is that, at this stage of the proceedings, this was not a relevant issue as it could not lead at that stage to the establishment of a defence under section 179(7). Consideration of that issue would have been relevant had the defendant given evidence to the effect that he was unaware of its existence. Accordingly, strictly speaking, the answer to the question is that they were not entitled to consider the issue at the close of the prosecution's case.

38. The second question is:

"Were we correct to consider that service of the enforcement notice on the defendant was an element of the offence which the prosecution had to prove?"

The answer to that is they were not correct to consider that issue. The prosecution had to prove the four elements of the offence as described in section 179(1) and the fact that it created an offence committed under subsection (2). The issue of service was not for the prosecution to prove, but was an element in a defence which the defendant might raise under section 179(7).

39. The third question is:

"Were we wrong not to infer that the existence of an enforcement notice on the local authority's file meant that a conversion had taken place within a four year period?"

In my judgment they were wrong not to infer that matter, in the sense that they had no business considering it at all by reason of the prohibition of its being considered pursuant to section 285.

40. Finally, question four:

"Did we apply the Galbraith test correctly by taking a combination of all the facts given to us in evidence?"

The answer to that clearly is that they did not. The issues upon which they chose to focus in deciding that no case had been established at the close of the prosecution case were irrelevant and not for them in relation to the time limit point, and premature in relation to whether there was a defence under 179(7).

41. In those circumstances, therefore, this appeal is allowed and remitted to the Magistrates' Court, whether to a lay bench or a District Judge a the Magistrates' Court to be a matter for determination by the administration of the court.
42. MR WILLS: My Lord, I am most grateful.
43. In the circumstances, there is an application for the appellant's costs --
44. MR JUSTICE WILKIE: Yes.
45. MR WILLS: -- against the respondent. I wonder if your Lordship has a copy of our brief schedule of costs?
46. MR JUSTICE WILKIE: I suspect not.
47. MR WILLS: Perhaps, then, I should hand one up --
48. MR JUSTICE WILKIE: Yes.
49. MR WILLS: -- with apologies. (Handed)
50. MR JUSTICE WILKIE: It may be that I have had it and I have mislaid it.
51. Have you seen this, Mrs Hamid?
52. MRS HAMID: Yes, my Lord, I have seen it and I have pointed out to my learned friend that it should be looked at in conjunction with the order that was made by Cranston J on 3 November 2014 because today's cost is the only cost that is relevant. Not all the costs to do with the case stated because that is between Thames Magistrates' Court and the London Borough of Newham.
53. MR JUSTICE WILKIE: Right.
54. MRS HAMID: That is something which I pointed out and in fact that had been -- as you will see, the costs of the judicial review claim shall be reserved as between the claimant and the defendant in that claim and that claim shall be stayed as between the claimant and defendant pending resolution of the appeal by case stated. The claimant and defendant shall have permission to apply to lift the stay --
55. MR JUSTICE WILKIE: So in effect you are saying that the elements of the costs that should properly be paid by the interested party would be the costs relating to today's hearing and preparation for today's hearing, not in relation to the drafting of the case stated and the judicial review, is that right?
56. MRS HAMID: Yes, my Lord.
57. MR JUSTICE WILKIE: Okay. I've got that.

Mr Wills, do you have any breakdown available?

58. MR WILLS: My Lord, I am very sorry --
59. MR JUSTICE WILKIE: Because it does seem that the point is, properly, being taken that the interested party has come along and argued the substance of the appeal but quite a lot of the earlier costs, and in particular the JR, concern the position of the Thames Magistrates and their unwillingness to draft a case stated which was sufficient.
60. MR WILLS: I can see that. My first response would be that the reason why the magistrates considered the matters which they did consider, which they should not have considered, was because they were led to do so --
61. MR JUSTICE WILKIE: True.
62. MR WILLS: -- at a time at which there is certainly no obligation to make any submissions whatever on behalf of the defendant, and yet the submissions were made and that is what causes us to be here one way or another.
63. If the court considers that the judicial review claim costs should not be recoverable, and I pause to note that the current respondent was the interested party to that claim, so if it proceeded on that basis, he still could have taken part in it and, had he done, then there may have been costs against him. So it is not as if he was never going to be (inaudible) costs.
64. MR JUSTICE WILKIE: No.
65. MR WILLS: But, in any event, if the court considers the JR claim costs should not be recoverable, then my submission would be that the case stated costs still should be because that really is the only way of making an appeal against the decision with the defendant of the criminal matter as the respondent. The respondent to an appeal of this nature should normally be expecting that it would be the party naturally asked to pay costs if it loses, particularly on the point of law that it has always run and has now lost.
66. So in relation to the case stated, I would say that the costs occasioned by additional correspondence almost certainly will have to be borne by one or other of these parties to (inaudible) get off the hook.
67. MR JUSTICE WILKIE: Do you want me to assess these?
68. MR WILLS: I do. I appreciate and I apologise for the compendious nature of the description the 2008 (inaudible).
69. MR JUSTICE WILKIE: That is the trouble.
70. MR WILLS: But nonetheless it seems to me that if one is going to discount the JR costs, the only description pertinent is really the issue and service of that claim form, and in addition my drafting in the bottom part of the schedule and the 20 per cent on it.
71. MR JUSTICE WILKIE: Yes.
72. MR WILLS: Alternatively, given the sums we are talking about, the court could take a broad brush approach --
73. MR JUSTICE WILKIE: That is what I am minded to do.
74. Mrs Hamid, I am minded just to take a broad brush approach in order to attempt as best I can to reflect the fact that your client should bear the costs of the substantive appeal, rather than the costs of the attempt to get the magistrates to state the case.
75. MRS HAMID: My Lord, yes, that would be the correct approach.
76. MR JUSTICE WILKIE: Yes, very well.
77. MRS HAMID: But unfortunately there is no breakdown. That is why, in my submission, your Lordship should limit the costs to the brief fee for 18 December, that is for today, because the others, as you can see, relate to drafting JR grounds, drafting case stated, drafting letter to court, drafting JR grounds. That, in my respectful submission, cannot be attributed to Mr Miah. It would be wrong to do that because that is the costs which should be borne by the Magistrates' Court.
78. MR JUSTICE WILKIE: Who has prepared the bundles, et cetera, for today?
79. MR WILLS: That was my instructing solicitors.
80. MR JUSTICE WILKIE: Right. What I am going to do is I will say the interested party make a contribution of £2,000 to the costs of the applicant to reflect the preparation strictly for today and the appearance of counsel for today.
81. MRS HAMID: So be it, my Lord.
82. MR WILLS: My Lord, I certainly am not going to try a change the quantum of that figure but might it be better to refer to the parties as the appellant and respondent, merely so that -- it may be the answer to that is no but in changing the names of the parties pursuant to the change to a case stated format --
83. MR JUSTICE WILKIE: I will say Mr Miah shall make a contribution of £2,000 to the costs of the London Borough of Newham.
84. MR WILLS: I am most grateful, my Lord.
85. MR JUSTICE WILKIE: Thank you both.
86. Mr Wills, can we ask you to draft the order?
87. MR WILLS: Most certainly.
88. MR JUSTICE WILKIE: Thank you very much.
89. MR WILLS: My Lord, if perhaps I might obtain an email address in order to send that in.
90. MR JUSTICE WILKIE: It will be handed to you.
91. MR WILLS: I am most grateful.