Brighton and Hove City Council, R (on the application of) v Brighton and Hove Justices

MR JUSTICE STANLEY BURTON: I have competing applications for costs in these proceedings. The total costs claimed by the claimant exceed the sum involved by something like 100 per cent. Total costs from both sides, therefore, are likely to be something like four times the amount involved.

On the other hand, I am sure that there was a question of principle involved in this case, certainly so far as the local authority were concerned, and I would be surprised if they were not influenced by the wish to have the jurisdiction of Magistrates, to whom application is made to set aside a liability order, more defined than hitherto it has been.

In particular, the local authority may well have wanted its own Magistrates' Court to be in a better position to know whether or not it had power to set aside and if so in what circumstances to exercise that power and that discretion.

There have been three hearings before the court. The first was before Henriques J. On that occasion the claimant was seeking a consent order in circumstances where the Magistrates had consented to the setting aside of their order. Mr Hamdan, as interested party, was represented by Mr Hamlin on the basis that he had not been properly served.

Confirmation that he had not been served can be seen from the fact that the court was informed that he was uncontactable and therefore his consent to the proposed consent order had not been obtained.

Mr Hamlin has asked for and not been given copies of the documents sent out by the claimant to effect service or to inform Mr Hamdan of the hearing from Henriques J. None has been produced. In those circumstances I propose to assume that no sufficient efforts were made to give him notice of that hearing.

It would follow that, other things being equal, Mr Hamdan would be entitled to the costs of the attendance before Henriques J, which was unnecessary since, had he been served, he could have put forward his case at that hearing.

So far as the hearing before Lindsay J is concerned, that was adjourned on the application of the claimant for it to put in its skeleton argument, something which it had previously decided not to do. The costs of and occasioned by that adjournment similarly are costs to which Mr Hamdan would be entitled.

I turn to the costs for the hearing before me. In normal circumstances the claimant would be entitled to those costs. I would, in any event, reduce them on account of the fact that in my judgment the costs incurred by the Council were excessive since much of the evidence that was put in was irrelevant to the issues before the court. Indeed there had not been a proper analysis of the issues and contentions to be raised in judicial review proceedings or indeed in appeals by way of case stated.

There is another factor to be taken into account so far as the cost of the final hearing are concerned. On 28th January 2004, immediately after the hearing before Henriques J, Mr Hamdan's solicitors wrote to JE Baring & Co, solicitors who were acting for the Council in bankruptcy proceedings which had been instituted by the Council, suggesting that costs might be saved by all parties agreeing to the Justices' order being set aside, permitting the Justices to re-examine the matter.

That, if I may say, was a most sensible suggestion. Had I been aware of that there would not have been a hearing before me.

Barings replied on 6th February stating that they were forwarding Mr Hamdan's solicitor's letter to Brighton's legal department for their consideration and reply.

I assume that that was done. Barings said:

Barings never did reply. I note that they did not say: "We shall not be dealing with this matter or are not instructed in it." Whether or not Barings chased their client for a response or instructions, I do not know. What happened was that on 5th March 2004 Brighton sent a letter to the Administrative Court Office, copied to Mr Hamdan's solicitors, referring to the proceedings and indicating that the claimants would continue with their claim.

There never was a reply to Mr Hamdan's solicitor's letter of 28th January 2004.

I am told by Mr O'Donnell that the Barings letter was never received. I am afraid, in the light of proceedings this morning, where Mr O'Donnell's instructions were that Barings had not been instructed by the Council and indeed acted for Mr Hamdan, instructions which are clearly inaccurate, I am not prepared to accept that Barings' letter was not received. Having been received it should have been responded to and the appropriate response was to accept the suggestion.

It is regrettable that no chaser was sent by Mr Hamdan's solicitors. They had made the offer and were simply awaiting a response.

I do not criticise Mr Hamlin for not making the suggestion at the hearing before Henriques J. The suggestion was adequately made in correspondence. Indeed correspondence is the appropriate place for such suggestions to be made.

Nonetheless the hearing before me proceeded as an opposed hearing and, as I have already indicated, in normal circumstances the Council would be entitled to its costs, but there are hearings in respect of which Mr Hamdan is entitled to his costs and I would, in any event, reduce the order for costs on the final drawing and take into account the offer that was made.

It seems to me in those circumstances justice is done overall if I make no order for costs, which is what I propose to do.

The order will be an order quashing the order of the Magistrates', requiring them to re-consider the matter in the light of the judgment of this court.

Thank you both.