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
		27 July 2016

1. MR JUSTICE SUPPERSTONE: The appellant appealed by way of case stated against the imposition of an Antisocial Behaviour Order on 27 February 2014 by District Judge Curtis sitting at North Lincolnshire Magistrates' Court on the application of the respondent made under section 1(1) of the Antisocial Behaviour Act 1998. The judge made an Antisocial Behaviour Order prohibiting the appellant for a period of five years from engaging in any act or behaviour directed at or relating to any member or employee of North Lincolnshire Council that causes or is likely to cause harassment, alarm or distress. In addition, the judge ordered the appellant to pay the respondent's costs in the sum of £16,894.
2. On 18 March 2014, the appellant requested the judge to state a case for the opinion of the High Court in relation to his decision to make the order. The request contained three proposed questions, all relating to the legality of and imposition of the order. There was no proposed question relating to the legality of the making of the costs order. On 28 March the judge issued a certificate refusing to state a case on the ground that the application was frivolous.
3. What followed thereafter is set out in the judgment that this court delivered on 27 January 2016 and it is not necessary to repeat it in this judgment. Suffice to say that on 17 July 2015 the judge reviewed his decision and stated a case containing the following three questions for the opinion of the High Court:

"1. On the facts of this case, was I correct to find that the defendant acted in an antisocial manner which caused harassment, alarm or distress to one or more persons not of the same household as himself?

2. On the facts of this case, was I correct in concluding that an Antisocial Behaviour Order was necessary?

3. If I was correct in considering the order to be necessary, was the order I made containing the single prohibition in the terms drafted proportionate and lawful on the facts of this case?"

4. On 27 January 2016, we answered all three questions in the affirmative. Further, we adjourned the appeal and ordered that the case be remitted to the North Lincolnshire Magistrates' Court for amendment. The purpose of the amendment was for the judge to state whether in assessing the award of costs he considered section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, known as LASPO. Having amended the case, we directed that the judge pose a question for the opinion of the High Court which would allow consideration of the lawfulness of the award of costs. Following our direction, the judge further amended the case stated, which now contains a fourth question in the following terms:

"On the facts of this case: one, was my order that the appellant pay the full amount of costs incurred by the respondent lawful; and two, if so, given the appellant's means, was it appropriate and proportionate given his conduct in the proceedings?"

5. Paragraph 7(o) of the amended stated case has been amended by the judge to include his reasons for awarding full costs to the respondent. The judge states as follows:

"I am said to have indicated I had no discretion as to costs, by this I meant that my understanding of civil costs is that costs follow the event, are awarded to the successful party (unless there is good reason not to follow that principle), I saw no reason to go against that principle. I considered reducing the amount but decided not to; given the appellant's financial circumstances that might be regarded as robust.

I was not specifically referred to section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) by either party to the proceedings. I was advised by the appellant's solicitor that the appellant was a retired man in receipt of a pension but little more about his finances. That having been said it was apparent he was not a man of substantial means. I was aware he was in receipt of legal aid.

As indicated above I had regard to his financial resources, I considered reducing the amount but decided not to.

I also considered the appellant's conduct in connection with the dispute to which the proceedings related in accordance approximate with section 26(1)(b) LASPO 2012.

The appellant initially appeared in these proceedings unrepresented. He was difficult and unreasonable in court with lay magistrates, his case was reserved to a district judge to case manage and to consider an interim ASBO, which I granted. This decision was appealed to the Crown Court at Grimsby where it was heard by Recorder M McKone and two lay justices on 9 January 2014. The appeal was unsuccessful and the appellant was ordered to pay costs.

Notwithstanding the observations of that court, the case was listed for five days for a full hearing in the Magistrates' Court, all the evidence was challenged and a large number of witnesses were called.

In my note refusing to state a case for the opinion of the High Court dated 28 March 2014 I described the appellant's own case as 'without credibility or corroboration, his own evidence self-contradictory and inconsistent.'

The appellant from the outset of this litigation had determined a conspiracy existed within the Local Authority to 'gag' him as a political activist, he described it as a 'cabal'. In his own evidence he was evasive, argumentative, and self-contradictory. He made numerous concessions about his behaviour in cross-examination -- 'I don't like the bloke, I can describe him how I like' -- being just one. He presented himself as a man who did not swear and yet a transcript of a conversation taped by a council official was littered with expletives. This was only introduced after the appellant's unequivocal statement 'I don't use obscene language'.

It seemed to me that this was relentless, unjustified retribution by litigation on the part of the appellant using precious court resources. His conduct coloured my costs decision."

6. Miss Lody, who appears on behalf of the appellant, challenges the award of costs on two grounds: first, that it was an error of law for the judge to award costs against the appellant on the basis that he had no discretion to do otherwise and that costs simply followed the event unless there was a good reason not to follow that principle; second, the judge erred in his approach in failing to consider the operation of section 26 of LASPO and the appellant's means before determining whether any costs order should be made against the appellant. Section 26 of LASPO provides, so far as is relevant:

"(1) Costs ordered against an individual in relevant civil proceedings must not exceed the amount (if any) which it is reasonable for the individual to pay having regard to all the circumstances, including-

(a) the financial resources of all of the parties to the proceedings, and

(b) their conduct in connection with the dispute to which the proceedings relate.

(2) In subsection (1) 'relevant civil proceedings', in relation to an individual, means—

(a) proceedings for the purposes of which civil legal services are made available to the individual under this part."

7. We have now been provided with a copy of the appellant's legal aid certificate in respect of these proceeding. It is accepted by Miss Lody that it is a criminal legal aid certificate that was granted, not a civil legal aid certificate. In the circumstances, despite the fact that these are civil proceedings, section 26 of LASPO does not apply because of the definition of "relevant civil proceedings" in subsection 2. Accordingly, the appellant does not have the protection that section 26 provides. Miss Lody suggested that nevertheless section 26 reflects the appropriate approach to be taken. I do not accept that submission. Either section 26 applies or it does not, and as I have said, it does not.
8. Alternatively, Miss Lody submits that section 64 of the Magistrates' Court Act 1980 applies. Section 64 confers a discretion on the Magistrates' Court to make such order as to costs as it thinks just and reasonable. Mr Mason on behalf of the respondent submits that the CPR regime applies, in particular CPR 44.2. It clearly does not, as the CPR expressly provides for those proceedings to which it applies, and those proceedings do not include proceedings in the Magistrates' Court. It is section 64 of the Magistrates' Court Act 1980 that in my view applies.
9. The question, therefore, is whether the decision of the judge to make an immediate order for full costs was just and reasonable. In my view, it was not. It appears that the judge, despite how he initially expressed himself, did in fact appreciate that he had a discretion as to costs. However, he had limited information as to the appellant's means. What he did know is that he is a retired person with no assets, living off his pension and in receipt of weekly credits. The judge was entitled to have regard to the appellant's conduct. However, that conduct could not outweigh the appellant's financial position and his inability to pay costs in the sum ordered. Accordingly, I consider that both parts of the fourth question are to be answered in the negative.
10. For the reasons I have given, the issue of costs is to be remitted to the North Lincolnshire Magistrates' Court to be determined in accordance with section 64 of the Magistrates' Court Act 1980.
11. LORD JUSTICE LLOYD JONES: I agree.
12. LORD JUSTICE LLOYD JONES: Miss Lody.
13. MISS LODY: Thank you very much, my Lord. It remains to deal with the issue of the costs. Costs in respect of the last hearing were reserved until today, my Lord. My instructing solicitors have sent, I hope the court has received it, a costs schedule in respect of both the costs of the last hearing and today. Do your Lordships have a copy of it?
14. LORD JUSTICE LLOYD JONES: I do not believe I have.
15. MISS LODY: I apologise for that.
16. LORD JUSTICE LLOYD JONES: No, no. (Handed)
17. Thank you very much. This is in respect of both hearings?
18. MISS LODY: It is, my Lord, yes. This is obviously a case where the appellant has lost the first three questions but succeeded on the fourth question, two parts, today. I am of course in your Lordships' hands. Your Lordships may reach the view that no order as to costs is the appropriate order, given that we have won some and lost part of the argument.
19. LORD JUSTICE LLOYD JONES: So what is your application?
20. MISS LODY: I would invite the court to make no order as to costs as my first position. Otherwise, I did not have the benefit of hearing the arguments at the first hearing, but I understand they were rejected, obviously. It may be the case that as a secondary submission I would apply for the costs of today's hearing to be borne by the respondent. In that regard, that is why I have submitted a costs schedule, and my solicitor invites the court to make a summary assessment of the costs today. These are obviously legally aided costs and I would ask for the usual terms of the order, which is in some sense a repetition of my submissions earlier, there should be no enforcement without further order of the court, in the event that the court makes an order for costs against Mr Carney.
21. LORD JUSTICE LLOYD JONES: He is a legally aided party in respect of ...
22. MISS LODY: He is legally aided today, yes.
23. LORD JUSTICE LLOYD JONES: And is that criminal legal aid or civil legal aid?
24. MISS LODY: Criminal legal aid, my Lord.
25. LORD JUSTICE LLOYD JONES: Criminal legal aid. I think he must have been legally aided last time as well.
26. MISS LODY: Yes, he's been legally aided throughout these proceedings.
27. LORD JUSTICE LLOYD JONES: Thank you.
28. Mr Mason.
29. MR MASON: My Lord, I hope you have also received copies of our costs schedule, which was filed some time ago.
30. LORD JUSTICE LLOYD JONES: We have not, I am afraid.
31. MR MASON: I am afraid I have only one copy, my Lord. Can I hand that in.
32. LORD JUSTICE LLOYD JONES: Yes, thank you.
33. MR MASON: Can I ask you to please be careful of the staples. (Handed)
34. LORD JUSTICE LLOYD JONES: Before we go to the detail, what is your application?
35. MR MASON: My Lord, the application is as follows: firstly, I would submit again, and perhaps with a little more confidence, that CPR 44.2 does apply, that overall we have been successful in relation to this appeal. If one looks at it in relation to the three substantive questions, we were successful. So far as the fourth question is concerned, we were unsuccessful. I would invite the court to make an order as to costs, applying CPR 44.2. If one looks at success and then the other considerations, the only thing that operates against it again is his means, but in general civil litigation where CPR 44.2 applies that is given far less weight.
36. So far as today is concerned, my secondary submission is that we should not be made to pay the costs of today for two reasons: firstly, you should look at the matter overall rather than separately, and secondly in any event, this matter has had to be listed today rather than being dealt with on the last occasion because of failings on the part of the appellant. My Lords will recall that in September 2015 Collins J directed that the case be amended to include a question of costs. That was not done by the district judge. The appellants took no steps to enforce that order, and as a consequence we had the unsatisfactory result therefore on 27 January that this matter could not be dealt with. So in my submission the costs of today have been effectively incurred as a result of those failings, and any costs should not be laid at the door of the respondent as a consequence.
37. So my primary submission is we should recover our costs. My secondary submission is we should not pay the costs in relation to today in any event.
38. LORD JUSTICE LLOYD JONES: Thank you.
39. Miss Lody.
40. MISS LODY: My Lord, in respect of the need for the case to be remitted back to the district judge because he had omitted to include a question as to costs, as in my submission he ought to have done, with respect I do not think the blame for that can be landed at the appellant's door. I understand that at the last hearing this argument was essentially canvassed in relation to the question of whether the court should consider the costs and amend the case itself, and the point was made that there was very little time between receipt of the amended case with that question omitted and the hearing in this court, such that that wasn't a practical step which could have been taken, and I repeat that submission here. It's not the appellant's fault that it's required a further day, and in any event, my Lords, this hearing has taken some time today, some number of hours, and I reject the submission that it's the appellant's fault.
41. My submission is that the appellant has won on the substantial issue today that has taken some time to determine, and it wouldn't be a just order for the respondent to get its full costs on the basis that it had won on the first three questions, it was the claimant's case stated. I could make the argument that I've won part of it and so should succeed. I don't make that application, in light of the fact that the appellant was unsuccessful on the first three questions, which is why I make the argument that the fair order is either no order as to costs or the appellant should get its costs in respect of the part it has been successful on, a split order, but subject to the proviso that there should be no enforcement of the costs against the legally aided party without further order of the court, which is essentially that football pools order.
42. LORD JUSTICE LLOYD JONES: It is not suggested that section 26 applies?
43. MISS LODY: No, because these are criminal proceedings.
44. LORD JUSTICE LLOYD JONES: These are definitely criminal proceedings, yes.
45. MR JUSTICE SUPPERSTONE: Back to section 26, if we had known on the last occasion that the appellant had a criminal legal aid certificate, then some consideration may have been given to the matter that we have only considered today, namely whether section 26 applied or not, and certainly if that had been raised and considered, as perhaps it should have been, then we would not have directed the judge in the way we did to consider whether he had given consideration to section 26.
46. MISS LODY: I of course take your Lordship's point that all parties were acting under the erroneous assumption it seems that section 26 applied, but the fact remains that one of the grounds of the case stated application was that there had been an error in relation to costs. A question hadn't been posed by the district judge, and so in my submission it would have been necessary in any event, regardless of the application of section 26 of LASPO, for the question to be remitted, for the matter to be remitted to the district judge in order for him to ask the specific question as to the legality and justness of the costs order that he made.
47. So it may have narrowed the issues if the LASPO issue had been identified at an earlier stage, but in my respectful submission it still would have followed the same course of events because the question hadn't been posed as it quite rightly should have been done.
48. LORD JUSTICE LLOYD JONES: Thank you. We will rise to consider.
(A short break)
49. MR JUSTICE SUPPERSTONE: The respondent is entitled to its total costs of the previous hearing, having succeeded upon the substantive issues. There will be a detailed assessment of those costs if they are not agreed. That order will not be enforced without the leave of the court.
50. As for the costs of today's hearing, I consider that both parties have been at fault to a certain extent in relation to the correct basis of the award of costs, and therefore of the appeal to this court. In these circumstances, there will be no order as to costs in relation to today's hearing.
51. LORD JUSTICE LLOYD JONES: Thank you.
52. MISS LODY: Thank you, my Lord. I'm not sure whether I'm required to ask for relief for detailed assessment of the appellant's legally aided costs, ie those that his solicitors and counsel get paid, but if I'm required to do so I do so.
53. LORD JUSTICE LLOYD JONES: Yes.
54. MISS LODY: Thank you, my Lord.
55. LORD JUSTICE LLOYD JONES: One small matter I should mention, Mr Mason. In your skeleton you state at paragraph 15, you quote from note 16 of CPR 44.2 in the following terms:

"There is strictly no restriction on an award of costs against a legally aided party and the fact that a party has legal aid should have no effect on whether the court makes an order for costs either against him or in his favour."

56. In fact the passage at note 16 goes on to read as follows in the same sentence:

"But section 26(1) of LASPO and regulation 10 of the 2013 Regulations together place limits on that party's liability which must not exceed the amount if any which it is reasonable for that party to pay, having regard to all the circumstances, including financial resources of all the parties to the proceedings and their conduct in connection with the dispute."

57. MR MASON: My Lord it does, and I think I refer to that in paragraph 16 of my skeleton, although I haven't quoted it.
58. LORD JUSTICE LLOYD JONES: Right. It wasn't clear to me on reading that.
59. MR MASON: My Lord, I'm sorry for that.
60. LORD JUSTICE LLOYD JONES: I see what has happened. Thank you very much for drawing it to my attention.
61. MR MASON: My Lord, I'm sorry.
62. LORD JUSTICE LLOYD JONES: No, thank you for drawing that to my attention, that explains it.
63. Thank you both very much.