Abbey Mine Ltd v Coal Authority & Anor

This is an appeal by the claimant, to whom I shall refer as Abbey Mine, against a judgment of Dobbs J given in the Administrative Court on 18 May 2007, by which she dismissed Abbey Mine’s application for judicial review of the decision of the defendant, the Coal Authority (“the Authority”), contained in a letter dated 16 December 2005 (“the second decision letter”). By the second decision letter the Authority confirmed an earlier decision notified in a letter of 9 September 2005 (“the first decision letter”). The effect of these decisions was to offer an underground coal mining licence and demise of coal in relation to the Margam area of South Wales to Corus UK Limited (“Corus”) rather than Abbey Mine, both companies having put in bids. Permission to appeal to this court was granted by Waller and Lawrence Collins LJJ at an oral hearing on 25 July 2007.

The challenged decision was made by the Authority in the exercise of functions conferred by the Coal Industry Act 1994 (“the 1994 Act”), which provides a comprehensive statutory scheme for the licensing and management of coal mining in the United Kingdom. S.1 establishes the Authority. By s.1(1) its purposes include:

Part II of the 1994 Act contains detailed provisions relating to the licensing of coal mining operations. S.30 requires the Authority to publish details of the manner in which it proposes to exercise and perform its licensing powers and duties. Pursuant to s.30, Guidance Notes have been published; as I shall show, they play some part in the issues in the appeal.

As the judge below said in paragraph 3 of the judgment:

There is a strong and rapidly increasing demand for coal of this type and quality, especially from China. World coking coal prices have risen dramatically in recent years. We are told that once the Margam site is operational, it will supply virtually all the coking grade coal mined underground in the United Kingdom.

Abbey Mine was incorporated as a special purpose vehicle in December 2004. Its chairman is Mr Gerwyn Williams who has had a long career in the coal mining industry. In December 2004 Abbey Mine submitted an application to the Authority for a licence and demise of coal in the Margam area. The application documents included detailed commercial and technical data. Particulars were given of the proposed market for the coal and Abbey Mine’s technical expertise. The Authority advertised the fact that it had received the application. Thereafter on 11 February 2005 Corus and another concern, Tower Colliery, also submitted applications. Tower’s was subsequently withdrawn. Corus’ application was made with a view to providing coking coal to serve their Port Talbot Steel Works, in which they had made a substantial investment.

There is no doubt but that Abbey Mine’s was an impressive application. The Authority have confirmed that had there been no application from Corus the licence would have gone to Abbey Mine. Indeed, Mr Griffiths QC in his skeleton argument for Abbey Mine is at pains to put forward his clients’ view that their application had the advantage over that of Corus, and lists a number of objective considerations in support of that contention. Being concerned with issues of law only we are not called on to adjudicate upon any such question.

On 9 September 2005, the first decision letter (addressed to Abbey Mine) gave brief reasons for preferring Corus’ application as follows:

Abbey Mine applied for a review, and a review hearing was fixed for 2 December 2005. Before then the Authority supplied no further documentation to Abbey Mine relating to its decision to prefer Corus’ application. Abbey Mine have never seen Corus’ application, whether in a redacted form (so as to exclude confidential commercial information) or otherwise. Abbey Mine sought a short adjournment of the review hearing because leading counsel instructed on their behalf could not attend on 2 December 2005. That was however refused and the hearing went ahead. Mr Williams spoke for Abbey Mine. Mr Wilson, the Authority’s Director of Mining Projects and Property and author of the first decision letter, attended in order to explain his decision. Corus were not invited to attend and did not do so.

There followed the second decision letter on 16 December 2005, the object of the challenge in these proceedings. This was altogether more detailed than its predecessor. It included the following:

This suffices as a general account of the facts. It will be necessary to set out some further detail in confronting the arguments in the case.

On 14 March 2006 Abbey Mine lodged this judicial review application in order to challenge the decision. After an initial refusal of permission on consideration of the papers by Leveson J as he then was, Collins J granted permission at an oral hearing on 11 December 2006. The matter was argued before Dobbs J on 28-29 March 2007 and as I have said her judgment was given on 18 May 2007.

The principal argument advanced by Abbey Mine before the learned judge was that the Authority’s decision-making process was defective and unfair. That broad submission occupied the first four grounds of challenge listed by Dobbs J in paragraph 13 of her judgment. The fifth ground was to the effect that the decision was anti-competitive and in violation of Chapters 1 and 2 of the Competition Act 1998 and Articles 81 and 82 of the EC Treaty. The sixth and last ground was that the decision constituted state aid to Corus contrary to Article 88(3) of the EC Treaty and amounted to a breach by the Authority of s.2(2)(b) of the 1994 Act.

The judge found against Abbey Mine on all grounds and dismissed the application. Grounds (5) and (6) are not pursued on this appeal. Mr Griffiths relies on grounds (1) – (4), which have been re-configured into six grounds of appeal. The focus of the argument has been on the first two of these. The first is that the Authority’s procedures should have required the details of Corus’ rival application (redacted if necessary so as to exclude commercially sensitive information) to be disclosed to Abbey Mine, and such disclosure should have been given. The second is that the Authority failed to give Abbey Mine fair notice of their concerns about the “track record” of Mr Williams, who as I have said is chairman of the company, in relation to previous mining ventures in which he has been involved. It will be convenient to explain the point when I come to confront it.

We did not call on Mr Vajda QC for the Authority to address us on appeal grounds 3 – 6. I will deal with them shortly before addressing the two main points.

The complaint here is that the Authority’s conclusions relating to surface rights and planning consents were unfair and/or irrational. It engages numbered points (ii) and (iii) in the second decision letter, which I will repeat for convenience:

The point about the south westerly wind seems to have been raised for the first time in a single sentence of Mr Williams’ second witness statement served two days before the hearing in the Administrative Court.

The short answer to this ground was given by the judge at paragraph 78: “The issue[s] of surface rights and site access were raised at the [review] hearing and the Claimant had every opportunity to raise any doubts he entertained. He did not.” In fact Abbey Mine (through Mr Williams, who as I have said spoke for the company) made no reference at all to the SSSI at the review hearing. In the circumstances it is in my judgment quite impossible to categorise the Authority’s conclusion on surface rights and planning consents as unfair or irrational. The judge was right to observe (paragraph 78): “The Authority was entitled to come to the conclusions it did, given, in particular, that AML did not have surface rights and thus no surface access strategy, whereas Corus had both.”

The reference here is to point (iv) in the second decision letter: “Corus put forward clear, tangible timeframes for its proposals whereas AML has been less clear”. This is said to have been an unfair and/or irrational conclusion. Abbey Mine were, it is submitted, not told that this consideration might be taken to have an adverse impact on their application and it was not referred to in the first decision letter. It was unfair to take it into account because Corus’ proposed timeframes were not revealed to Abbey Mine (this particular point clearly ties in with the first ground of appeal, to which I have yet to come). Abbey Mine also assert that the Authority’s reliance on any timeframe put forward by Corus was perverse, since a “genuinely meaningful timeframe cannot be produced where the manner in which the venture would be taken forward is dependent on the results of exploration” (Mr Griffiths’ skeleton, paragraph 60).

The judge concluded:

The Authority’s Panel stated in the second decision letter:

The application form put applicants on notice that detailed technical information should be provided, including details of the “anticipated annual rate of extraction”. Mr Williams knew this issue concerned the Authority. He had, and took, the opportunity to deal with it at the review hearing. Abbey Mine were also given the opportunity (on which they did not act) to make further representations in writing after the hearing. Fairness required nothing more.

There was a recommendation in Corus’ favour before the Authority. It referred to support for Corus on behalf of officials at the Welsh Assembly. There was also a document referring to meetings of the Welsh Assembly Government at which there were discussions of the Margam mine and which were attended by representatives of Corus (and on one occasion, representatives of the Authority). There was also a document (as I understand it, the same recommendation) showing that Abbey Mine’s financial backing was “a Greek shipping company registered in Liberia [which] does not have the connection with a potential Welsh coal mine that a steel producer sited adjacent to the potential mine has”. These matters were wholly irrelevant to the Authority’s decision. But Abbey Mine say they may have exercised an “unconscious” influence.

I consider the point to be fanciful. The judge gave more detailed reasons for rejecting it at paragraphs 80 – 82 and 85 which are in my judgment sound but which with respect I need not repeat.

These grounds should never have been advanced. I do not criticise Mr Griffiths, whose clients had the benefit of an unlimited judicial review permission granted by Collins J. However (save I suppose for ground 6, which is anyway hopeless), they are fact dressed up as law. Time and again, despite repeated protests in this court and in the Administrative Court, points are taken in judicial review cases which are not points of law at all. This is a waste of scarce resources and an impediment to the clear and transparent development of public law principles.

It is salutary at the outset to have in mind the well known words of Lord Bridge of Harwich in Lloyd v McMahon [1987] AC 625, 702:

In this case the judge was required to decide the reach of the duty of fairness owed by a public body in given circumstances. Though the answer to the question must (per Lord Bridge) depend on context, it is not a question of “mixed law and fact” such as to allow a number of different possible conclusions, all of them lawful and reasonable, any one of which may therefore lie beyond the proper scope of appeal. The reach of the duty is concluded by the court in the exercise of its responsibility to set procedural standards for public decision-making. Such a conclusion is of necessity one of principle, and must therefore be open in this court to be fully re-considered. Nothing to the contrary is to be had from Designers Guild, which was not a public law case and in which their Lordships were not concerned with the extent or application of a public body’s duty of fairness.

As I have said the Authority has published Guidance Notes pursuant to s.30 of the 1994 Act. Paragraph 11 of the Guidance Notes describes the review hearing procedure, but there is nothing there to be found dealing with disclosure of material such as a rival bid. Indeed Abbey Mine submit that the Guidance Notes do not provide for any particular procedures to be adopted when the authority is confronted with rival applications, as happened here; and so far as it goes that is right. Applications are generally publicised, so as to allow others to make competing bids, but there are no mechanisms for dealing with them, as it were, side by side.

Should the Authority have adopted procedures which would in this case have required that the Corus application be disclosed to Abbey Mine? Mr Griffiths relied on the decision of Silber J in Agnello [2003] EWHC Admin 3112. That case concerned the procedure by which tenant traders were selected to occupy units at a new fruit, vegetable and flower market in Hounslow. Mr Griffiths draws attention to this passage from paragraph 102 of the judgment:

I confess, with respect to Silber J, to very considerable doubt as to the utility of this distinction in the context of a public body’s duty of fairness. I say nothing about the result in Agnello itself. I apprehend, however, that there may be many instances in which stage 1 is not clearly distinguishable from stage 2 as a matter of fact, or where it is by no means self-evident that fairness requires disclosure of a rival application at stage 1 but not stage 2. In particular cases Silber J’s distinction may mark the extent of what fairness will require by way of disclosure; in others it will not. It cannot, therefore, serve as a statement of principle. Dobbs J (paragraph 69) relied on the fact, as she saw it, that “this case fell into the second stage of the Agnello test”. In my judgment she should not have done so.

These observations, however, bring us no nearer an answer to the question whether the Authority should have caused the Corus application to be disclosed to Abbey Mine. There are of course cases in which it is of the essence of fair procedure that material or information belonging to one party has to be disclosed to another. The paradigm is the Crown’s duty of disclosure to the defence in a criminal prosecution. There will be other cases where in some sense, however loose, a party faces an adverse allegation: disciplinary cases, and cases where a right or privilege – perhaps a licence of some kind – is threatened to be withdrawn. These are instances in which fairness requires that the affected party is entitled, as it is often put, to know the case against him. I do not mean to delineate this class of case strictly. This area of the law is not illuminated by rigid classification. The distinction drawn by Sir Robert Megarry V-C in McInnes v Onslow-Fane [1978] 1 WLR 1520 between “application cases” and “forfeiture cases” cannot now be treated as a vade mecum to the content of a public body’s duty of fairness; it may point the way to an answer, but what is always required is a careful focus on the facts of the given case.

Mr Griffiths submits that it is a basic imperative of the need of fairness that a party who will be affected by a public decision is entitled to know the case against him. He relies (specifically in the context of Ground of Appeal 2, to which I shall come shortly) on such well known authority as Ex p Fayed [1998] 1 WLR 763 and Hadmor Productions v Hamilton [1983] 1 AC 191, 233. Now, the signal feature of the present appeal is that it concerns rival applications for a licence to undertake a commercial venture. In such an instance there is, I think, a distinction to be drawn for the purposes of Mr Griffiths’ submission between a right to know the details of the rival’s case, and a right to know the decision-maker’s concerns about one’s own case. The decision-making body, the Authority, is concerned to arrive at a result in the public interest in conformity with the obligations laid on it by the 1994 Act. In the execution of that process no applicant is shown the details of any other applicant’s bid. In that sense they are treated equally; all the competitors are in the same boat. It would be obviously unfair if one applicant saw his opponent’s bid, but the opponent did not see his. But if every applicant (there may sometimes, no doubt, be more than two) saw every other’s bid, and was entitled to comment and challenge and criticise, the resulting prolongation and complexity of the decision-making process can scarcely be exaggerated.

In Asha Foundation [2003] EWCA Civ 88 the primary issue was the extent of the Millenium Commission's obligation to give reasons for its decision to refuse the applicant’s application for a capital grant amounting to £10 million. Lord Woolf CJ said this:

There is no question of sacrificing fairness to administrative convenience. The duty of fairness always takes its place in a practical setting. Where the setting involves statutory functions imposed in the public interest, the court must be alert to see that they are fulfilled and not frustrated. Here, as I have said, all competitors are in the same boat. In my judgment, in a competition case like this (in addition to the elementary imperative of impartiality in the decision-maker) fairness imposes two broad requirements: (1) that an applicant be told the substance of the decision-maker’s concerns about his own case, and (2) that each applicant be treated like every other: there should, to use the hackneyed phrase, be a level playing-field. The first of these requirements applies the distinction I drew earlier: the applicant is entitled to be told of the decision-maker’s concerns about his own case, but not the details of his rival’s case.

On this basis the Authority was not obliged to disclose Corus’ application details to Abbey Mine, and in my judgment Ground of Appeal 1 fails.

This part of the case, which involves an alleged failure by the Authority to fulfil the first of the two requirements I have just identified, arises because of the reference in the second decision letter, under the heading “(v) The Panel considered the likelihood of either party proceeding with its application”, to “a number of companies with which you [sc. Mr Williams] have been associated and which are involved in coal mining initiatives, which have failed to make tangible progress in carrying out mining operations”. It is said that this consideration must have told against Abbey Mine’s bid but was not properly put to Mr Williams so as to give him a reasonable opportunity to deal with it.

In order to understand the true reach of Mr Griffiths’ argument I should first give a little detail about one of the other companies with which Mr Williams had been involved. Mr Williams owned a 41% share in Modal Mining Ltd (“Modal”). In 1995 Modal applied to the Authority for a conditional underground licence in relation to Margam. The company was at length offered a conditional licence and option for lease for a period of five years in relation to the western part of the site. (Another concern was offered a conditional licence for the eastern part.) Modal did not take up the offer. On 13 August 2004 the Authority wrote to Modal confirming that the offer was formally withdrawn as the option had not been exercised within the five year period. On 2 November 2004, Modal was invited to make a new application should they wish to proceed further.

Modal was thus one of the “number of companies” with which Mr Williams had been associated and to which the Authority’s Panel referred. It is, however, common ground that at the review hearing Mr Williams was asked in terms about Modal’s failure to pursue the licence offer made in 1998. In reply he referred to the price levels for coking coal prevailing at the time. Complaint is made in Mr Griffiths’ skeleton argument as to the way in which what I may call the Modal issue was dealt with at the hearing. In particular it is suggested (paragraph 38.2) that the Panel should have warned Mr Williams if they regarded his response concerning Modal as insufficient or inadequate.

There is plainly nothing in this. Mr Williams had fair opportunity to say what he would about Modal. Fairness required nothing more. The real burden of Mr Griffiths’ complaint on this ground of appeal concerns companies other than Modal with which Mr Williams had been associated.

There were several such companies. None of them was mentioned at the review hearing. They had, however, been listed in Annex I to a Briefing Note prepared for the Panel members who would conduct the hearing. The Briefing Note itself contained this passage:

Annex I contains a list of four collieries, including Pentreclwydau South, with which Mr Williams was or had been associated. It also gives details of a number of coal methane access agreements (Mr Williams says they are correctly named coal bed methane access agreements). In relation to the collieries the Annex provides a narrative alleging a series of failures or cessation of working. As for the agreements, it states that as at 7 November 2005 the Authority had not been notified of any boreholes drilled pursuant to any of them. It appears that Annex I was not disclosed to Abbey Mine’s advisers until the afternoon of the day before the hearing before Dobbs J commenced. Mr Williams had not previously seen it. As I have indicated it had not been referred to at the review hearing. Nor had the assertions it contains.

On 8 June 2007 Mr Williams signed a further witness statement, for use in this court. Paragraph 3 is in these terms:

As the judge pointed out (paragraph 74) the companies which owned or ran the mines listed in Annex I were all identified in the application form completed by Abbey Mine for the Margam site, and at the review hearing Mr Williams was asked if they were still trading. Also at the hearing one of the Panel members observed that track record plays a major part in planning mines. The judge appears (paragraph 75) to have considered, though she does not so state in terms, that these points went some distance to repair any want of fairness arising from the fact that Mr Williams was not confronted with the actual concerns expressed in Annex I. If that was the judge’s view, I think with respect that she was in error. If the Annex I points were to have a real effect on the decision, fairness required that they, or at least their substance, should be put to Mr Williams; all the more so if the Panel were to be moved by the view of Mr Williams’ motives suggested in the last sentence of the extract from the Briefing Note which I have set out.

There then is the question: did these considerations have a material effect on the application’s outcome? I have concluded that they did not. It is important to note that of the companies associated with Mr Williams only Modal had any history in relation to the Margam site, and that was properly dealt with at the review hearing. The other collieries were elsewhere. In his witness statement of 25 January 2007 Mr Schofield, who was at the relevant time the Authority’s Chief Executive, said this:

Thus the whole focus was on the rival proposals for the Margam site. Moreover it is to my mind significant that (as I have said) the Authority would have granted Abbey Mine’s application had it not been for Corus, which must tend to negate any real concerns as to Mr Williams’ motives. We have the Authority’s internal decision document, in effect an extended version of the second decision letter, whose detailed reasoning contains no trace of any concern on that score. Indeed the tenor of the second decision letter itself is not in my judgment compatible with the Panel’s having entertained any real reservations about such matters. We know, also, that the Panel considered there was nothing to choose between Abbey Mine and Corus as regards their ability to finance their proposals.

In all these circumstances I have concluded that it is fanciful to suppose that the Annex I points could have had a material, far less a decisive, effect on the outcome of Abbey Mine’s application. That being so, the Panel’s failure to confront Mr Williams with them (or to disclose Annex I or any associated documents) has caused no unfairness. In my judgment, Ground of Appeal 2 fails.

I would dismiss the appeal.

I agree.

I also agree.