Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE PITCHFORD
LEIGH POWELL
(APPELLANT)
-v-
THE CHIEF EXECUTIVE OF THE CITY AND COUNTY OF SWANSEA
(RESPONDENT)
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MR P MADDOX (instructed by Kearns & Co, Swansea SA1 4DQ) appeared on behalf of the CLAIMANT
The Respondent did not appear and was not represented.
J U D G M E N T
(As Approved by the Court)
Crown copyright©
MR JUSTICE PITCHFORD: This is an appeal by a successful applicant in the magistrates' court against the justices' decision to decline an award of costs in his favour.
On 22, 27 and 28 March 2002 the appellant, Leigh Powell, made application to the City and Council of Swansea for the renewal and transfer of four hackney carriage vehicle licences. The existing licences expired on 31 March 2002. The applications to renew were made on the dates respectively when each licence was transferred to him by the existing licence-holder. On 24 April the applications were considered by the respondent, which came to the view that they did not contain information which they required, namely letters providing evidence of transfer and the applicant's home address. The respondent attempted to make contact with the appellant to inform him of these suggested deficiencies, but by a chapter of accidents communication was not made. On 27 May 2002 the applications were posted back to the appellant, although the fees submitted were retained. The letter and enclosures were received, according to the justices' findings, by the appellant in June.
On 21 June 2002 a friend representing the appellant met with the respondent to discuss these applications. He was told that a fresh application for each licence would be required. It was, however, the respondent's policy that vehicles the subject of a first application would not be accepted (1) unless new, (2) unless purpose-built and wheelchair accessible and (3) unless coloured black. Nevertheless the appellant resubmitted the original applications on 16 July 2002 and did not submit fresh applications. The resubmitted applications were accepted by the respondents and the appellant was not required to resubmit the licensing fees. On 26 July 2002 the licensing committee resolved that:
"The application(s) .... to transfer and renew the Hackney Carriage Vehicle Licence(s) be refused due to his failure to comply with the Council's policies particularly with regard to the timing of the renewed application(s)."
On appeal to the Swansea justices, the respondent argued that the applications refused on 26 July were to be treated as fresh applications, and as fresh applications the vehicles did not comply with the policy requirements to which I have already referred. The respondent, following cross-examination of the responsible officer, conceded during the hearing that the applications should have been treated not as fresh, but as applications to renew. The respondent relied upon linked notices of application, the absence of a home address upon the applications and the fact that the cabs had not been seen on the road since June 2002.
The justices found, first, that the applications had been made in time; second, that the forms had been correctly completed -- they did not require the applicant to state his home address and he had stated his business address; third, that notification of transfer of the licences was required to be given not by the appellant transferee but by his transferor under section 49 of the Local Government (Miscellaneous Provisions) Act 1976. The justices made other findings which were not central to their decision. The respondent should have specified what it contended were the shortcomings in the March applications. When writing on 27 May the respondent had failed to state whether the application had been refused and if so, that the applicant had a right of appeal. The respondent had failed to take adequate steps to ensure that the appellant was made aware of the respondent's requirements. The respondent's policy should be reduced to writing.
In the result the justices found no reasonable cause to refuse the applications and allowed the appeal. The appellant sought his costs. The justices relied upon an extract of the decision of the Divisional Court in Bradford City Metropolitan District Council v Eric Wilson Booth (2000) 164 JPR 485, to be found at paragraph 1-644 Stone's Justices Manual. I have been provided with a transcript of the judgment of Lord Bingham CJ, delivering the judgment of the court. The citation in Stone commences from paragraph 23 of the judgment. Having reviewed earlier authorities and recited the submissions made on behalf of the City of Bradford, also in a vehicle licensing appeal, Lord Bingham said this:
"I would accordingly hold that the proper approach to questions of this kind can for convenience be summarised in three propositions:
1. Section 64(1) [Magistrates' Courts Act 1980] confers a discretion upon a magistrates' court to make such order as to costs as it thinks just and reasonable. That provision applies both to the quantum of the costs (if any) to be paid, but also as to the party (if any) which should pay them.
2. What the court will think just and reasonable will depend on all the relevant facts and circumstances of the case before the court. The court may think it just and reasonable that costs should follow the event, but need not think so in all cases covered by the subsection.
3. Where a complainant has successfully challenged before justices an administrative decision made by a police or regulatory authority acting honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both (i) the financial prejudice to the particular complainant in the particular circumstances if an order for costs is not made in his favour; and (ii) the need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged."
At paragraph 19 of the case stated the justices record that they received advice from their clerk to this effect. They continued at paragraph 20 of the case stated:
"In reaching our decision we followed the case of Bradford City Metropolitan District Council v Eric Wilson Booth The Times 10th May 2000. Although we found that the Respondent could have done more to bring the renewal of the licences to the attention of the Appellant, we nevertheless recognised that the primary duty rests with the licence holder. The Respondent had acted in accordance with its policies. No representations were made as to the financial prejudice to the Appellant."
And, at paragraph 21:
"We returned to open Court and delivered the following decision 'We have considered the case of Bradford City Council-v-Booth and in view of the findings will not allow costs'."
The question posed for this court is:
"In view of the findings of fact in this case, did the Magistrates err in law (or were the magistrates wrong in law) in refusing the Appellant his costs in whole or in part?"
I confess that I find the justices' reasoning, stated as it was in summary form, is confusing. Mr Maddox, counsel who appears on behalf of the appellant, informed me that the policies to which the justices were referring in paragraph 20 of their case were policies which the respondent was submitting applied to judgment of a fresh application for the licensing of a vehicle as a hackney carriage. By the phrase the respondent "could have done more to bring the renewal of the licences to the attention of the Appellant", Mr Maddox informs me that the justices can only have meant informed the appellant of their requirements as to date of service of the application and of the insertion of the applicant's home address. It is conceded by Mr Maddox that no representations were made as to financial prejudice to the appellant, for a reason to which I shall come in a moment.
While the justices found that the primary duty to make completed applications to the respondent in due time rested upon the appellant, their reason for allowing the appeal was that he had complied. He had served the applications upon the respondent within due time, namely before the end of the expiration of the current licence. While the justices found that the respondent acted in accordance with its policies, the respondent had conceded during the hearing that the policy was wrongly applied to these applications, since these applications should have been treated as applications for renewal, to which the policy did not apply. Given these findings, it seems to me that the reasons given by the justices did not in fact support the justices' decision to decline an award of costs, since on their finding there was nothing more that the appellant either should have done or could have done in the absence of instruction received from the respondent. They could not, in other words, support the view that the respondent acted reasonably in refusing the applications upon procedural grounds.
In accordance with the guidance provided by Lord Bingham, it was necessary first for the justices to consider whether the regulatory authority acted "honestly, reasonably, properly and on grounds that reasonably appeared to be sound". There can be no doubt that the respondent acted honestly in the exercise of its public duty. The issue before the justices was whether in the light of the court's findings the decision of the regulatory authority could be said to have been reached reasonably and properly and on grounds that reasonably appeared to be sound at the time. The submission made to the justices on the appellant's behalf was the respondent had not acted reasonably. Considerations of financial prejudice did not arise. It is my judgment that the justices erred in concluding that the decision was made on grounds that reasonably appeared to be sound. In view of their findings this was plainly a case for an award of costs, since the respondent had purported to apply to the applications a policy which it could not apply.
I would answer the stated question "yes". I would find that this was plainly a case for an award of costs in favour of the appellant and (subject to further submissions from Mr Maddox) I would remit the case to the justices for further consideration of the sum to be awarded.
MR MADDOX: My Lord, I do not have any further representations as to disposal.
MR JUSTICE PITCHFORD: Very well. Thank you very much.
MR MADDOX: My Lord, the only other issue is the costs of today. I hope the court has a schedule for summary assessment which was served yesterday.
MR JUSTICE PITCHFORD: I am afraid I have not. Would you like to pass me a copy? (Handed)
MR MADDOX: My Lord, in terms of the figures claimed, my instructions are that there was a quite significant amount of amendment needed to the draft statement which came to those instructing me.
MR JUSTICE PITCHFORD: The drafting of the case statement?
MR MADDOX: Yes. Obviously it was drafted by the magistrates, but when it came to those who instruct me there was quite significant amendment to that, which was then accepted by the clerk to the justices, so the form which your Lordship has is heavily amended to that which was originally served. My Lord, there is "Attendance at hearing" which was put at two hours, which clearly now is probably too high.
MR JUSTICE PITCHFORD: I am also a little surprised about the 8 hours 18 minutes preparation, research and drafting since I presume Mr Jeffreys dealt with this in the court below, did he?
MR MADDOX: My Lord, yes, he did. My Lord, my instructions are that four of those hours relate to the work on the draft case and the others, obviously, to bundle preparation and other matters, but clearly it is a matter for your Lordship's discretion.
MR JUSTICE PITCHFORD: I am prepared to make an award of costs, Mr Maddox, which I shall summarily assess in the sum of £3,000 inclusive of VAT.
MR MADDOX: I am grateful.
MR JUSTICE PITCHFORD: If you wish me to, I shall give further particulars as to why I have assessed it at £3,000.
MR MADDOX: My Lord, no, thank you very much.
MR JUSTICE PITCHFORD: All right. Thank you very much for your help.