Crawley Borough Council v Attenborough & Anor

LORD JUSTICE SCOTT BAKER: There is before the court an appeal by way of case stated against the decision of the Horsham Justices in a licensing matter made on 23 November 2005. On that date, they heard an appeal by Mr and Mrs Attenborough who manage the Royal Oak Public House. The appeal was as to conditions imposed on the premises license in respect of those premises.

The Attenboroughs sought to conduct additional activities, including regulated entertainment, provision of entertainment facilities and late night refreshments up until 3.30 in the morning, seven days a week; provision of alcohol up to 2.30 in the morning, seven days a week, and opening hours up to 3.30, seven days a week.

Broadly, the local authority granted the application to vary the license, subject to conditions, allowing the applicants to do what they sought but only up until midnight. They took the view that granting everything the Attenboroughs sought would create an unacceptably high risk of public nuisance by noise. The Attenboroughs appealed to the Justices, as they were entitled to do, and had substantial success. However, the local authority has appealed by way of case stated on two grounds. First, that the conditions imposed by the Justices were vague, uncertain, imprecise and unenforceable; and second, that the justices were further in error in granting the Attenboroughs the costs of the appeal before them.

The local authority, who are the appellants, asks for the case to be sent back to the justices for appropriate and clear conditions to be made. Initially, there was an application by Mr Miller, for the local authority, to amend the case stated but, on inquiry, it became apparent that the real complaint of the local authority relates to the vagueness and uncertainty of the conditions, and that a practical way of resolving that would be for the parties, with some preliminary assistance from the court, to get together and resolve what conditions the magistrates actually intended to impose and to spell them out in clearer terms.

The second ground of appeal is, as I have mentioned, that the justices should not have made a full order for costs in favour of the Attenboroughs against the local authority.

As to the clarity of the conditions, I am happy to say that the parties have now resolved the terms and conditions of the licence and spelt them out in a form that is acceptable to each of them and to the court. Let me say a brief word in general terms. It is important that the terms of a premises licence and any conditions attached to it should be clear; not just clear to those having specialised knowledge of licensing, such as the local authority or the manager of the premises, but also to the independent bystander such as neighbours, who may have no knowledge of licensing at all.

The terms of a licence and its conditions may of course be the subject of enforcement. Breach carries criminal sanctions. Everyone must know where they stand from the terms of the document. It must be apparent from reading the document what the license and its conditions mean. That said, the matter has now been resolved, the terms and conditions of the license clarified, and accordingly I would answer the first of the questions posed by the justices, namely: were we wrong in law to impose the following terms and conditions on the premises license that we did? in the affirmative, because the terms were so vague and unclear as to be, in effect, unenforceable. As to that matter, I would remit the case to the justices and direct them to allow the appeal from the local authority with the revised terms and conditions of the license that have been agreed by the parties and approved by this court.

As to the second question: were we wrong in law in awarding costs against the local authority in full on the basis that costs are a matter for the court and that the respondents are entitled to their costs? The position was this. The magistrates were referred to the observations of the Lord Chief Justice in Bradford City Metropolitan DistrictCouncil v Booth (Times Law Reports, 31 May 2000). In that case, the court was considering the exercise of the power by the magistrates under section 64(1) of the Magistrate Courts Act 1980 to make such order as to costs as it thinks just and reasonable. In the present case, the court was exercising its power under section 181 of the Licensing Act 2003 in making such order as to costs as it thinks fit. For my part, I see no practical distinction between the terms of section 181 and section 64(1) of the Magistrates' Court Act. The parties take the same view and agree that the observations of Lord Bingham in the Bradford case are applicable to the present case as to the proper approach to be applied. Lord Bingham said this:

The magistrates gave the following reason for their decision:

We have been referred also to my decision in the R vStafford Crown Court ex parte Wilf Gilbert (Staffs) Ltd [2001] LLR 138, in which I made reference to the general rule that there is no obligation to give reasons for a decision on costs, citing Eagil Trust Co v Pigott-Brown [1985] 3 All ER 119 and, in particular, a passage from Griffiths LJ's judgment at 122A. It seems to me very doubtful whether that decision has survived the new Criminal Procedure Rules which have loosened the opportunity to appeal on costs decisions.

Be that as it may, the justices did give reasons for their decision in the present case, the reasons to which I have referred. For my part I think, first of all, there is no obligation on justices in cases of this kind to go in detail into the reasons for their decision, and it is sufficient that they have made it clear that they appreciated the principle under which they were operating. Secondly, I make the general observation that it seems to me highly undesirable that the courts should do anything to encourage satellite litigation on questions such as costs.

It is plain from section 181 and also, so far as material, section 64(1) of the Magistrates' Court Act 1980 that in a case of this kind the justices have a very wide discretion in what costs order they see fit to make. They will, after all, have heard the appeal, which in this case took something in the region of two days.

Mr Miller submits that they went wrong because they ordered the local authority to pay all of the appellant's costs without making a finding that the local authority had behaved unreasonably. In my judgment, he is seeking to import into the magistrates' discretion something that the statute does not specifically say. Further, Mr Miller refers to the reasons for the court's decision as originally provided, but it seems to me that the critical matter in this case is what was said in the stated case after no doubt more careful consideration.

In truth, what happened here seems to me to be that the local authority was contending that what was sought by Mr and Mrs Attenborough would amount to a noise nuisance. I have looked at the submissions made by the local authority before the justices and they there set out under six separate subheadings their basis for that submission.

The magistrates heard evidence from Mr Petrou and Mr Burns, and Mr Miller submits that the local authority did not have the advantage beforehand of that evidence. It seems to me that, on the face of it, the magistrates had all material matters in mind and it was within the ambit of their discretion to make the order that they did entitling Mr and Mrs Attenborough to have the costs of the appeal.

It is for these reasons that I would answer the second question in the negative.

MR JUSTICE OPENSHAW: I agree.

LORD JUSTICE SCOTT BAKER: What about consequential matters; the costs of this appeal?

MR PHILLIPS: My Lord, you have allowed the appeal in part.

LORD JUSTICE SCOTT BAKER: Yes.

MR PHILLIPS: Mr Miller and I have had the opportunity of following the early discussion as to how that left us and we agreed between ourselves that we might apportion 25 per cent on each of our parts of the costs and preparation of this case to that element of the hearing - in other words 25 per cent of our overall costs were attributable to the issue of the conditions.

My Lord, that leaves the remaining 75 per cent relating to the case presented on costs which it is clear from your Lordship's judgment my client has been successful on.

LORD JUSTICE SCOTT BAKER: What costs order are you saying we should make?

MR PHILLIPS: My Lord, I would invite you to make an order that the claimant pay 75 per cent of the respondent's costs in connection with the application to state a case.

LORD JUSTICE SCOTT BAKER: The appellant.

MR PHILLIPS: Sorry, the appellant.

LORD JUSTICE SCOTT BAKER: The local authority.

MR PHILLIPS: The local authority.

LORD JUSTICE SCOTT BAKER: So you are asking him to pay how much of your costs?

MR PHILLIPS: Seventy-five per cent of our costs, my Lord. In addition to that, my Lord, my instructing solicitors pointed out to me that there is an issue of the interests that should be payable on the costs awarded by a magistrate which would have been payable from 23 December 2005, and, as I understand it, has not been paid to date.

LORD JUSTICE SCOTT BAKER: What do you say about these submissions?

MR MILLER: My Lord, in terms of interest, I am unaware of any provision in the magistrates' court that provide for interest to be paid.

LORD JUSTICE SCOTT BAKER: I am sorry?

MR MILLER: I am unaware of any provision that says interest must be paid.

LORD JUSTICE SCOTT BAKER: Why have you not paid the costs?

MR MILLER: My Lord, as I say there has been an appeal.

LORD JUSTICE SCOTT BAKER: Yes.

MR MILLER: As I understand it, there is costs between courts and the local authority, and the courts are not very happy that pending the appeal costs should be paid. That is my understanding.

LORD JUSTICE SCOTT BAKER: There was no order that costs should be paid pending the appeal.

MR MILLER: There was no order, but as I understand it, those instructing me did the approach the court.

LORD JUSTICE SCOTT BAKER: Sorry, I cannot follow you. I do not think it is for us to order interest on the costs.

MR MILLER: My Lord, yes. In terms of the costs of today, yes, it has been agreed to a deduction of 25 per cent. I have not actually seen the schedule of the costs for today.

MR PHILLIPS: I have that, and the figure has been calculated. It is set out on the schedule to be handed up. (Document handed) My Lord, the costs are fully set out there, I understand from my instructing solicitors that the schedule has previously been served, there seems to be a dispute, but the 75 per cent figure comes to £8,318, I believe.

LORD JUSTICE SCOTT BAKER: So you are asking for an order that the local authority pay your costs, being 75 per cent of your costs and assessed in the sum of £8,318.

MR PHILLIPS: Quite so, my Lord.

LORD JUSTICE SCOTT BAKER: First of all, what do you say about the 75 per cent?

MR MILLER: My Lord, it had been agreed between the parties.

LORD JUSTICE SCOTT BAKER: That is all right. What do you say about the figures, then?

MR MILLER: I actually have just been handed a copy of the schedule. They are (inaudible) very high, in my submission.

MR PHILLIPS: My Lord, one minor correction. I think my instructing solicitors had allowed for seven hours of time for today. Obviously the matter has been determined rather sooner, so possibly ...

LORD JUSTICE SCOTT BAKER: The alternative is to simply make an order that you have 75 per cent of your costs and the costs to be assessed.

MR PHILLIPS: That could be the case, my Lord.

LORD JUSTICE SCOTT BAKER: If not agreed.

MR PHILLIPS: Yes.

LORD JUSTICE SCOTT BAKER: You have not really had a chance of looking at this, I think.

MR MILLER: My Lord, no.

MR PHILLIPS: My Lord, my instructions are that the schedule was served yesterday, but so be it.

LORD JUSTICE SCOTT BAKER: I mean with any luck you can agree them, but 75 per cent of your costs to be assessed if not agreed. Does that cover everything?

MR PHILLIPS: My Lord, yes.