Broxbourne Borough Council, R (on the application of) v North and East Hertfordshire Magistrates Court

Mr Alex Goodman applies on behalf of Broxbourne Borough Council (“the Council”) for judicial review of decisions of justices (“the Justices”) sitting at North and East Hertfordshire Magistrates’ Court on 29 April 2008 and 5 November 2008. The application succeeds. Both decisions must be quashed.

The Justices were exercising their civil jurisdiction, hearing an appeal by the Interested Party against an Abatement Notice served on him by the Council alleging a statutory nuisance by artificial light. The costs of the proceedings to date are out of all proportion to the amounts at stake, for the Interested Party’s costs before the Justices were in excess of £13,000 whilst the evidence before them indicated that the nuisance – if such it was – could be abated for an expenditure of no more than about £100. The unhappy consequence of my decision is that yet more money will have to be spent – spent, as we will see, because of serious errors by the Justices – unless the matter can be resolved without recourse to further litigation.

I can take this quite briefly because, as will appear, although this litigation is all about nuisance by light I do not have to decide whether or not there was in fact a nuisance.

Section 79(1)(fb) of the Environmental Protection Act 1990, inserted by section 102 of the Clean Neighbourhoods and Environment Act 2005, provides that:

“artificial light emitted from premises so as to be prejudicial to health or a nuisance”

constitutes a statutory nuisance for the purposes of the 1990 Act. Section 80 of the 1990 Act provides that, subject to a discretion to try and obtain a voluntary abatement of the nuisance, a local authority which is “satisfied” that a statutory nuisance exists “shall” serve an Abatement Notice. Section 80(3) provides for an appeal to a magistrates’ court. Section 80(4) makes it a criminal offence to fail to comply, without reasonable excuse, with the requirements of an Abatement Notice.

Whether or not something is a “nuisance” for the purposes of section 79(1)(fb) depends upon the common law. The principles are well known and need no exposition here. It is sufficient to refer, as the Justices were referred, to the speeches of Lord Hoffmann and Lord Millett in Southwark London Borough Council v Tanner [2001] 1 AC 1.

Guidance on sections 101 to 103 of the 2005 Act was published in 2006 by DEFRA, the Department for Environment Food and Rural Affairs: ‘Statutory Nuisance from Insects and Artificial Light’. This is a lengthy document. For present purposes, and to indicate the kind of issues which the Justices in this case had to address, it suffices if I refer to only a few passages:

“18

‘Nuisance’ is not defined in statute, but is rather based on the common law concept of what is to be regarded as an unreasonable interference with someone’s use of their own property; … ultimately, it will be for the courts to decide whether a statutory nuisance exists, should an appeal be made against an abatement notice within the 21 day period from its being issued … As for all statutory nuisances, when assessing a case of potential statutory nuisance the Environmental Health Practitioner should take account of a range of factors including:

•

Duration

•

Frequency

•

Impact – i.e. material interference with use of property or personal well-being; …

•

Local environment

•

Motive – i.e. unreasonable behaviour or normal user

•

Sensitivity of the plaintiff – statutory nuisance relies on the concept of the average person, and is not designed to take account of unusual sensibilities.

87

We anticipate that much artificial light nuisance will be caused by excessive levels of illuminance and glare, which is inappropriate to its need and which has been poorly designed, directed, operated and maintained. Simple remedies, such as re-aiming or screening, should be sufficient in many cases and, although light nuisance is not a matter of light levels per se, light meters are available and affordable for taking measurements in order to quantify the scale of the possible nuisance.

93

It is sometimes suggested that a complaint of artificial light nuisance could easily be mitigated by the use of curtains or blinds, even blackout curtains or blinds, by the complainant. It is for the Environmental Health Practitioner to exercise discretion over what is reasonable and what is not. It might be reasonable to expect a complainant to use curtains or blinds of everyday standard if they are bothered by unwanted light in their home. It might not be reasonable to require a complainant to purchase and install blackout hangings which might be expensive, and/or impair that person’s enjoyment of his property. Few would wish to have their curtains drawn on a hot summers night. It is not reasonable to leave the solution and cost of abatement to the complainant rather than the perpetrator.

94

Technical parameters on obtrusive lighting, formulated by the International Commission on Illumination (CIE) and Institution of Lighting Engineers (ILE) from research into individual sensitivity to light, may be helpful in considering the level of sensitivity that might be considered that of the ‘average person’ without unusual sensitivities. These parameters vary depending on whether the installation is in town or country (there are four suggested environmental zones), and there is a suggested curfew time of 23.00 after which lighting levels should be further restricted. However, there are no objective levels at which artificial light does or does not constitute a statutory nuisance.”

That all seems unexceptionable and entirely consistent with the common law approach.

Mr Geoffrey Oliver and Mr Paul Nipper are the occupiers of adjacent premises on the south side of Turners Hill in Cheshunt. Mr Oliver’s premises, the Toddbrook Veterinary Centre, are to the east of Mr Nipper’s premises, the flat in which he and his partner live. They are separated by a private driveway leading to a car-park at the rear of Mr Oliver’s premises, the flank walls of the two properties being some 11 metres apart. The entrance to Mr Oliver’s premises is on the western (flank) wall facing Mr Nipper’s flat. Attached to the wall immediately to the right of the door and at head height is a light, designed according to Mr Oliver to ensure safe entry to the surgery by his clients in the hours of darkness and also security against burglars. The window of Mr Nipper’s bedroom is on the second floor opposite the light on a slight diagonal.

Mr Nipper complained to the Council that the light was on all night and disturbed his and his partner’s sleep. He said that he had asked Mr Oliver to turn it off, but it had not been turned off. His complaint was received by the Council on 19 February 2007. One of the Council’s Environmental Health Technical Officers, Mr Paul Busz, visited the site to investigate on 31 March 2007 and again on 11 April 2007. On 11 May 2007, a Senior Environmental Health Officer, Ms Barbara Goult, visited the site and made observations of the effect of the light on the interior of Mr Nipper’s flat. In the light of subsequent events it is appropriate to set out the account she subsequently gave in her witness statement to the Justices. Mr Nipper showed her his bedroom and:

“explained that the light on the flank wall of the surgery and opposite the bedroom window was on all night and lit the room sufficiently to disturb him and make it difficult to sleep. The window opening in this room was a V shaped recess with two opening casements with clear panes of glass. Each was hung with a wooden slatted Venetian blind. When we arrived the blinds were closed with the slats directed upwards. I asked for the bedroom light to be switched off and the bedroom door to be shut. I observed that the room was illuminated around the window recess and across the ceiling directly above the bed. Light also was reflected off the top of the venation blind top mounting bar. My colleague Mr Ken Read went outside and held a newspaper over the light. This had the effect of removing the illuminated areas around the window and across the ceiling. When he removed the paper these reappeared. I asked the complainant to adjust the blinds so that the slats tipped down. In this position the light was not directed across the ceiling but continued to trespass into the room and continued to illuminate the window recess. The complainant explained he did not use the blinds in this position overnight as they then directed the morning sun at the bed head. In my opinion the light trespass into the bedroom from the external light mounted on the wall of the Toddbrooks veterinary surgery was a statutory nuisance.”

Following a meeting with Mr Oliver on site on 22 May 2007, Mr Busz wrote to him on 23 May 2007 setting out his “recommendations” and making clear that failure to carry them out “will” result in the Council serving a statutory notice under the 1990 Act. Mr Busz returned to the site on 2 July 2007 and noted that the light was still in use.

On 31 August 2007 the Council served an Abatement Notice requiring Mr Oliver “immediately” to abate what it said was a statutory nuisance within the meaning of section 79(1)(fb). On 14 September 2007 Mr Busz visited the site at Mr Oliver’s request and, later the same day, sent Mr Oliver a letter to “clarify” matters, pointing out that, as the person served with the Abatement Notice, Mr Oliver was, as the Notice itself made clear, entitled to appeal to a magistrates’ court within 21 days, but saying that “No other correspondence or contract can nullify or amend the Notice.”

Mr Oliver duly appealed, his primary ground of appeal being that the light did not amount to a nuisance within section 79(1)(fb).

On 29 October 2007 Ms Goult met Mr Oliver and his solicitor on site for a discussion. The following day Ms Goult faxed Mr Oliver’s solicitor details of various directional lights of the kind that would meet the Council’s concerns: they ranged in price from £22.33 to £29.95 with a more expensive model costing £88.13. Mr Oliver’s solicitor responded the same day (30 October 2007) with a letter requiring assurances from the Council that if the lighting was modified in line with these suggestions the Abatement Notice would be withdrawn. The Council’s solicitor replied on 2 November 2008 saying that it could not give this assurance:

“It is up to your client not to cause a statutory nuisance and the Council is under a statutory duty to serve a notice if there is a statutory nuisance and it cannot avoid its statutory duties by giving assurances and undertakings. The proposal put forward appears to the officers to be likely to abate the nuisance but if it does not in fact do so then it will have to be revisited.”

The hearing before the Justices took place on 10 April 2008. Their legal adviser was Ms Rachel Fabri. The appellant, Mr Oliver, was represented by Mr Mehta of counsel, the Council by Mr Goodman. The Justices had before them a bundle containing, amongst other materials, witness statements by Mr Oliver, by Mr Oliver’s expert witness, Mr Michael Barham, who is a professional lighting consultant and building services engineer, by Ms Goult, by Mr Nipper and by Mr Busz and, in addition, the DEFRA ‘Guidance’ and a skeleton argument prepared by Mr Goodman. The Justices heard oral evidence from (in this order) Ms Goult, Mr Busz, Mr Nipper, Mr Barham and Mr Oliver.

Mr Goodman took a detailed note of the hearing which, given the way in which the Justices have chosen to respond to the judicial review proceedings, is the only detailed account I have of what took place. (As we will see in due course they were asked if they agreed the note but have never answered the question.) The typed version is dated 14 May 2008. For present purposes there are only three points in it which I need refer to.

The first relates to Ms Goult’s evidence. It will be recalled how in her witness statement she had described the experiment she carried out on 11 May 2007 with the newspaper. She was asked about this in cross-examination. The Chairman of the Bench then asked her some questions on the point: “Please explain about your testing with the newspaper over the light.” The second relates to Mr Barham’s cross-examination. He accepted that he had not been in Mr Nipper’s bedroom and that it would have been useful if he had. He admitted that he had not tested by reference to the DEFRA guidance and said that he was not given an opportunity to make a judgment on whether there was a nuisance.

The third matter relates to the question, raised with the Justices, as to whether or not there should be a site visit. This was raised by Mr Goodman at the end of Mr Barham’s evidence. He was supported by Mr Oliver’s counsel. Ms Fabri advised the Justices that if there was to be such a visit it would need to be when it was dark, in Mr Nipper’s bedroom and with her and both counsel present. The Justices said they would consider the matter and return to it later. In due course they announced that it would be impractical – too complex to arrange.

Mr Oliver then gave evidence. Counsel made their closing submissions. What happened next is set out by Ms Fabri in her witness statement filed in the judicial review proceedings (see below):

“At the conclusion of the evidence the Magistrates retired for approximately 30 minutes, at which time I was called in to speak to them. They informed me that they had come to a provisional decision which was that a statutory nuisance had not been proved. On the basis that it was late in the day it was decided that the Magistrates would adjourn to a later date to prepare their reasons and deliver their judgement. As the reasons would take some time to draft the Magistrates agreed to meet prior to the next hearing in order to collate their reasons and then forward to me for consideration.

The adjourned hearing was booked for 29^th April 2008 and both parties left for the day.

I was contacted by the Chairman at some later date to inform me that the Magistrates would be meeting on 23^rd April 2008 and that their reasons would be emailed to me for consideration prior to the 29^th April 2008.”

On 11 April 2008 Mrs Claire Russell, a Senior Environmental Health Officer employed by the Council, whilst on night patrol at about 9.25pm, saw a man and a woman, subsequently identified as the Chairman of the Justices and his wife, at the site. Her unchallenged evidence is that:

“I saw them looking at the light … and in discussion with each other. I saw the man take photographs of the light. He then covered the light with what appeared to be a newspaper. The lady then went to the wall lights on the neighbouring premises … She attempted to cover the lights on the wall with what appeared to be a newspaper.”

On 23 April 2008 the Council’s solicitor, Mr Gavin Miles, having learned what had been seen on 11 April 2008, made a telephone call to the court and left a message asking Ms Fabri to contact him. His call was not returned.

The same day, 23 April 2008, the Justices convened at the Chairman’s house. There are four separate accounts of what then took place. Since the facts here are potentially of crucial importance I must examine these accounts in some detail.

The first, and it might be thought the most authoritative, account is contained in a written statement which the Chairman read out at the beginning of the subsequent hearing on 29 April 2009 (see below). I set it out in full:

“Before we commence I have an announcement to make.

After the sitting which ended late on the afternoon of 10.4.08 the Bench talked for about half an hour and came to a preliminary decision which has remained unchanged.

Due to the lateness of the hour and other obligations we agreed to consider our reasons and verdict independently and meet together at a later date to bring our thoughts together.

I spent a long time on Friday 11^th working on a structured decision and writing it out.

Then in the evening of the 11^th at about 9.00pm out of interest I went and looked at the site. I took photos while there.

At no time during the week did I mention this to my colleagues, in fact I did not speak to them at all.

We met again at my house on 23^rd April.

Only at this point did I mentioned [sic] to them I had been to the site and showed the photos I had taken.

We went through all the papers we had individually prepared and confirmed our initial decision, we then collectively formulated from these papers our reasons.

I emphasize very strongly our reasons and decision had been made independently before my visit to the area and I have copies of these papers from my colleagues you may see if you so wish.

I apologise unreservedly to the Court if my actions have caused embarrassment but they had no bearing at all on our decision.”

There is a question as to whether the Chairman actually read out the words “and I have copies of these papers from my colleagues you may see if you wish”. Mr Goodman has no recollection of the Chairman having said this; his detailed contemporaneous note of the hearing, which otherwise contains an accurate paraphrase of what the Chairman said, makes no reference it; and, as he points out, had the Chairman in fact made the offer he would have taken it up. But for immediate purposes I do not think it matters.

The second account was given at a slightly later stage during the hearing on 29 April 2009 when, having heard submissions on the question of whether the Justices should recuse themselves (see below), the Chairman is recorded by Mr Goodman as having said:

“We are not minded to abort the case. We had come independently to our decisions and collated our reasons on 23^rd April. We had already come to a unanimous decision and was not altered by our actions [sic]. There was no mala fides and our decision was based on the evidence at trial on 10 April 2008. We do not feel natural justice is compromised and in the interests of justice we continue.”

Ms Fabri’s record of this in her witness statement is to very much the same effect, though adding detail as to the advice she had given the Justices:

“I proceeded to advise the Magistrates that they should consider whether it was in the interests of justice to proceed and on the issue of fairness. I asked them to consider what evidence they had based their findings on and whether they had been influenced by the Chairman’s visit to the Veterinary Centre. They confirmed that they had not been influenced by the Chairman’s visit or the photographs that they had seen.

The Magistrates returned to court to announce their decision not to recuse themselves. They confirmed they had come independently to their decision and collated their reasons on 23^rd April 2008. It was only then that they all saw the photographs of the light. They confirmed they had already reached a unanimous decision and that this had been based solely on the evidence which had been heard on 10^th April 2008. Natural justice had not been compromised and it was in the interests of justice to proceed.”

The third account was given by Ms Fabri in her witness statement. Referring to what happened at court before the hearing began on 29 April 2008 she says:

“I arrived at court early in order to appraise the two other Magistrates. Unfortunately I only had the opportunity of speaking to one prior to the Chairman arriving. I asked the Magistrates what if anything the Chairman had said to him. The Magistrates confirmed that the Chairman had told them that he had visited the centre and had seen the photographs which had been taken by the Chairman.”

The final account was set out in the grounds of defence attached to the acknowledgment of service filed on behalf of the Justices (see below). In material part this reads as follows:

“The Magistrates had reached a preliminary decision on the 10^th April 2008 which remained unchanged.

The Magistrates reasons and decision(s) were based purely on the evidence they heard on 10^th April 2008

The Chairman’s two colleagues were unaware of his unplanned site visit.

Each Magistrate had come to their own conclusion about the evidence (albeit a unanimous one), and only, met on 23^rd April 2008 to collate their reasons. A copy of each Magistrates conclusion was offered to both parties to see, which they declined. The Chairman’s conclusions were drafted on 11^th April 2008 prior to his visit to the site and his colleagues conclusions were drafted prior to being informed about his site visit.

It was accepted that the Chairman told his colleagues he had been to visit the site and had taken photographs although these were put to one side and not looked at until after they had collated their notes and prepared their reasons.

… The Magistrates made their decision prior to being shown the photographs by the Chairman. This was indicated in court.

The Magistrates reasons were based purely on the evidence they heard on 10^th April 2008.

… Each Magistrate prepared their own conclusions independently of each other which they collated on 23^rd April 2008. As stated previously, a copy of their conclusions were offered to both parties to view, which they declined.

The Chairman prepared and wrote his conclusion on Friday 11^th April 2008 prior to going on the site visit.

… The Chairman disclosed to his colleagues on the 23^rd April 2008 that he had been to the site.

… The magistrates reasons consisted of an introduction detailing the law in relation to a statutory nuisance, a factual background and their conclusions from the evidence heard. These reasons were compiled using notes they had prepared prior to 23^rd April 2008.”

Mr Goodman invites me to contrast what is said in that document with what was read out by the Chairman on 29 April 2008 – which is, as he correctly points out, the only written account by any of the Justices that we have ever had.

On 25 April 2008 (a Friday) Mr Miles was at court on another case and spoke to Ms Fabri His account of that conversation is as follows:

“I mentioned then what had been reported to me and asked if she knew if any members of the bench had visited the site. She said that they had not told her anything other than that they planned to meet up at one of their homes to write the decision and reasons. She asked me if I would take action if the decision went against the Council and I confirmed that I anticipated that the Council would. I stated that I considered that if (as I understood) only one Magistrate had been to the site then I considered that it was improper and the views or evidence collected from that site visit could not fairly be evidence which the court can consider when making its decision. She said that she had the decision and reasons in writing and so should be able to tell if the visit the day after the hearing, if indeed any of the magistrates had been responsible, could have had any bearing. She did not show me the decision or tell me what it was but she started to read it and I left her to do so. She said she would ask the magistrates if they had visited and probably discuss it with the Clerk to the Justices, Mr Fellingham.”

That account is not challenged by Ms Fabri, whose own account in her witness statement filed in the judicial review proceedings is to the same effect. Mr Miles heard nothing more. But according to Ms Fabri, on 28 April 2008 (the following Monday) she spoke first to Mr Fellingham and then, by telephone, to the Chairman of the Justices. She says:

“I telephoned the Chairman initially and he confirmed that he had visited the centre with his wife. He confirmed that he had taken photographs of the light. I asked if he had held a newspaper up to the light. He confirmed that he had. I informed him that he would need to make an announcement to the court on the following day prior to any reasons being given in order to inform both parties of what he had done.”

The following day, 29 April 2008, the hearing re-convened for the Justices to announce their decision on the appeal and give their reasons. Again, we are largely dependent upon Mr Goodman’s note of what happened.

The Chairman read out the written statement to which I have already referred, at which point the hearing was adjourned so that counsel could consider the way forward. Following the adjournment, Mr Goodman submitted that the Justices should recuse themselves, on the grounds that to conduct a site visit and to see the light only from the perspective seen by Mr Barham, but not from the perspective of Mr Nipper, was unfair; that the Justices had clearly taken into consideration evidence upon which neither party had had the opportunity of commenting; that notwithstanding the Chairman’s statement there was a real risk that such information would have affected their decision; that accordingly the procedure was improper and unfair; and that justice must not only be done but must be seen to be done. Mr Oliver was, understandably, concerned about the costs implications of aborting the hearing. His counsel is recorded by Mr Goodman as saying that he was “content but not happy” for the matter to proceed, that he was “unhappy and wish it had not happened”, that Mr Oliver was put in a difficult position given the “horrendous” costs and the worry that commercially they would become “crippling” if there was a rehearing, but that “we are therefore content for the hearing to go on.”

The Chairman then gave the ruling referred to in paragraph [24] above and then read out the Justices’ reasons for allowing the appeal. They run to 2½ pages of typescript. Mr Goodman records the Chairman as prefacing his reading out of the judgment with the observation that “We have individually and together taken a long time on these reasons – in excess of eight hours. My actions were out of interest after the decision was made.”

There is no need for me to go into the details of the judgment. The Justices explained why they were not satisfied to the civil standard of proof that the light constituted a nuisance and accordingly allowed Mr Oliver’s appeal. For present purposes all that needs to be noted is that they said:

“We accept that [the Council] thought it appropriate to issue an abatement notice in respect of the perceived light nuisance … We also think that [Ms Goult] in keeping to the letter of the Defra guidance applied them in the correct manner.”

There was then a discussion about costs. Mr Oliver’s counsel applied for costs against the Council, alternatively from central funds. He submitted that there had, in a number of different respects, been unreasonable behaviour by the Council.

Mr Goodman had provided a skeleton argument referring to the authorities, in particular the judgment of Lord Bingham of Cornhill CJ in Bradford Metropolitan District Council v Booth (2000) 164 JP 485 at page 490, sub voc City of Bradford Metropolitan District Council v Booth [2001] LLR 151 at page 156, in support of his submission that in cases such as this costs do not follow the event:

“I would accordingly hold that the proper approach to questions of this kind can for convenience be summarised is three propositions:

(1)

Section 64(1) 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.”

Mr Goodman also referred to what Toulson J had said in R (Cambridge City Council) v Alex Nesting Ltd [2006] EWHC 1374 (Admin), (2006) 170 JP 539, at para [11]:

“Although as a matter of strict law the power of the court in such circumstances to award costs is not confined to cases where the Local Authority acted unreasonably and in bad faith, the fact that the Local Authority has acted reasonably and in good faith in the discharge of its public function is plainly a most important factor.”

Mr Goodman submitted that the Council had plainly acted reasonably and in good faith. Having made a judgement on the facts that there was a nuisance it had sought to resolve the matter with Mr Oliver without recourse to an abatement notice, which was issued only as a last resort and on the basis of a view properly formed by an experienced officer. The fact that Mr Oliver had chosen to incur costs in excess of £12,000 rather than replace the light at trivial cost was no reason why he should be awarded costs against the Council. There was no basis for making an example of the Council; the appropriate order, he said, was that each party bear its own costs. In support of those submissions Mr Goodman was, of course, able to pray in aid what the Justices had said in their reasons, namely that Ms Goult had properly applied the DEFRA guidance.

According to Mr Goodman’s note, Ms Fabri referred the Justices to the Costs in Criminal Cases (General) Regulations 1986, SI 1986/1335, and advised the Justices that they could make an award from central funds.

Mr Goodman’s note records the Justices’ decision as follows:

“Bearing in mind the contents of our reasons given previously we order the costs from central funds subject to taxation.”

In other words, says Mr Goodman, the Justices refused Mr Oliver’s application for costs against the Council and did so, correctly he would say, because of their findings, in particular in relation to Ms Goult.

On 19 May 2008 the Council sent the Clerk to the Justices a pre-action protocol letter. It was a long, detailed and careful statement of the Council’s complaint that it was procedurally improper and unfair for the Justices to proceed to determine the appeal given the fact that the Chairman had, as it was put, “conducted a site view, conducted experiments and taken photographs, and then shared the evidence gathered on that site view with the other Magistrates without affording either party an opportunity to comment on the photographs and other evidence”. A copy of Mr Goodman’s note of the proceedings was attached; the letter specifically asked whether the Justices agreed with his note. The letter also specifically asked that the Council be supplied with any affidavits the Justices might wish to rely on in defence of the proceedings and invited the Justices to “respond to the issues raised in this letter.” A copy of the pre-action protocol letter was also sent to Mr Oliver’s solicitor, who made no comment on Mr Goodman’s note.

The only substantive response was a letter from the Clerk to the Justices dated 9 June 2008 which did no more than enclose the relevant extract from the register – a document which in the nature of things threw no light at all on the issues raised in the Council’s letter.

Faced with this utterly inadequate response, on 24 June 2008 the Council issued its application for judicial review seeking the quashing of the Justices’ decision. The grounds, settled by Mr Goodman, were appropriately precise and detailed in setting out the Council’s case. The claim was supported by witness statements from Mr Miles and Mrs Russell.

On 21 July 2008 the Clerk to the Justices sent the Council its acknowledgement of service. Attached to the acknowledgement of service were the Justices’ replies to the Council’s claim, the truth of which was asserted by Mr Fellingham, who said he was “duly authorised” by the Justices to sign that statement. Also sent was a witness statement by Ms Fabri. I have already set out all the relevant parts of these two documents insofar as they deal with the material facts. I need only add that in the Justices’ replies it was asserted that “the Bench were given advice by their Legal Adviser and considered the decision to proceed was not unfair.” It was further pointed out, correctly, that no authorities had been cited to the Justices in support of the proposition that they should recuse themselves.

On 12 August 2008 Mr Oliver’s solicitors wrote to the Administrative Court saying that he did not wish to be involved in the judicial review proceedings because he could not afford the continuing cost implications. The letter said that he did, however, wish the court to take into considerations a number of points, which were then set out. Since these relate in large measure to the merits, or otherwise, of the Abatement Notice and of his subsequent appeal, there is no need for me to rehearse them. The most important point was the assertion that the Council had “failed to say that their case was weak” coupled with the statement of Mr Oliver’s belief that “it is not so important for justice to be seen [sic] as the [Council] did nothing to strengthen their case.”

On 11 November 2008 permission was granted by Mr C M G Ockelton (sitting as a Deputy Judge of the High Court). In his ‘Observations’ he specifically drew the attention of the Justices to the principles in relation to costs set out in R (Davies) v HM Deputy Coroner for Birmingham (No 2) [2004] EWCA Civ 207, [2004] 1 WLR 2739.

In the grounds in support of the initial claim for judicial review, Mr Goodman had raised, en passant, the question of whether in a civil matter such as this the Justices had had any power to make an award of costs out of central funds. The issue seems thereafter to have been discussed informally between Mr Miles and Ms Fabri, as also the separate question of whether, assuming the Justices not to have had any such power, they now had any jurisdiction to correct their earlier mistake. On the latter point Mr Miles sent Ms Fabri an email on 28 August 2008 drawing her attention to R (Periasamy Mathialagan) v London Borough of Southwark [2004] EWCA Civ 1689, [2005] RA 43, and a further email on 2 September 2008 referring to Samuda v Director of Public Prosecutions [2008] EWHC 205 (Admin). For her part Ms Fabri told Mr Miles in a telephone call on about 29 July 2008 that Mr Goodman’s submissions at the hearing had been correct, that the proceedings were not criminal and that a ‘central funds’ costs order under the Costs in Criminal Cases (General) Regulations 1986 could not be made. In an email dated 1 September 2008 she said that the Justices had “quite clearly made an order which is unlawful and the court needs to rectify this” and said that she was in contact with Mr Goodman’s clerk to get a date, though bearing in mind the Justices’ availability it might not be until November.

In the event the hearing, which the Chairman of the Justices announced at the beginning of the hearing had been called by the court of its own motion, took place on 5 November 2008. Again I am in large measure dependent upon the note of this hearing prepared by Mr Goodman (the accuracy of the note being confirmed by the legal executive who was in attendance with him on that occasion). Ms Fabri was not the legal adviser on this occasion, that role being filled by someone else.

According to Mr Goodman’s note, Mr Oliver’s counsel, Mr Mehta, said that, although on the previous occasion his primary submission had been that the Council should pay Mr Oliver’s costs, his primary submission today was that they should be paid from central funds. He submitted that, because the penalty for non-compliance with an Abatement Notice was criminal, the criminal costs regime should apply. Mr Goodman submitted that that was plainly wrong. The legal adviser said that the earlier order should have been made under section 64 of the Magistrates’ Court Act 1980 and advised the Justices that the case was a civil matter and that “costs usually followed the event in these cases.” Mr Goodman submitted that this was a mis-direction and referred the Justices to the skeleton on the point he had used at the earlier hearing (see paragraph [34] above). But according to his note the legal adviser gave the Justices no more advice. Mr Goodman then suggested that the Justices should adopt a two-stage process, deciding first whether they had jurisdiction, and if so the scope of that jurisdiction, and then determining whether costs would be awarded. According to Mr Goodman’s note both Mr Mehta and the Justices assented to that procedure. There were then submissions on the jurisdictional issues.

The Justices then retired having, according to Mr Goodman’s note, heard no detailed submissions from either party as to how their discretion should be exercised if they decided they had jurisdiction.

The Justices returned after about an hour and gave the following decision as recorded in the note made by their legal adviser which has since been supplied (see below). It does not differ in any material respect from Mr Goodman’s note:

“Mathialagan [2004] EWCA Civ 1689

para 35 – 1. Bench find there is a common law power to rehear costs applcn. relying on line of authorities – R v Marsham, Bannister v Clark etc.

£13,227.42 ordered by Bench

1.

Referring to the case of Periasamy Mathialagan v LB of Southwark. Bench looked @ para 35, where stated “certain authorities have recognised a power to rehear cases at common law.”

2.

Bench state going to exercise common law power and set aside the award of costs made on a previous occasion. The purported order made under the criminal jurisdiction not relevant in present case. Neither party alerted bench to error at the time.

Civil Jurisdiction

Relevant legn. S64 MCA ’80 – states “on the hearing of a complaint mags ct. shall have a power in its discretion to make such orders as to costs, on dismiss the complaint, to be paid by the complainant to the defendant as it thinks just & reasonable.

The amount of any such sum so ordered shall be specified in the order.

Bench exercise dic:-

Bench exercise disc. So costs are to be paid by the complainant Broxbourne Borough Council, to the defendant Jeffery Oliver of Toddbrook Vets. Having hd all the evidence in this lengthy case.

Bench refer to costs schedule and allow parties to address the bench re costs.

Costs awarded £13,227.42”

Mr Goodman accepts that the Council did not dispute the amount of Mr Oliver’s costs – £13,227.42 – just as he accepts that, despite the Justices having departed from the two-stage process that had been agreed, he made no protest. The Council was accordingly ordered to pay Mr Oliver’s costs in the sum of £13,227.42.

This, as will be appreciated, was just a few days before Mr Ockelton gave permission on 11 November 2008. He had been informed by the Council of what had happened on 5 November 2008 and in his ‘Observations’ said that any application for permission in relation to that decision must be made promptly and should include an application to join that claim (if permission was granted) with the existing claim.

On 4 December 2008 the Council sent the Justices a pre-action protocol letter in relation to the hearing on 5 November 2008, explaining why, in the Council’s view, the Justices’ decision on 5 November 2008 ought to be quashed. (A copy was sent to Mr Oliver.) It invited the Justices to agree to a consent order, a draft of which was enclosed, for the quashing of the decisions on 29 April 2008 and 5 November 2008 with no order as to costs. It drew attention to what Mr Ockelton had said in relation to costs, drew specific attention to what had been said in R (Davies) v HM Deputy Coroner for Birmingham (No 2) [2004] EWCA Civ 207, [2004] 1 WLR 2739, at para [46(i)], and said that if the Justices declined to agree to the proposed consent order “we shall be seeking our costs from the Court” – that is, from the Justices. Again, a copy of Mr Goodman’s note of the proceedings was attached and the Justices were specifically asked whether they agreed with his record and to provide clarification of any matter they considered necessary in relation to it. Referring back to what the Chairman had said in his written statement, the letter asked for disclosure of “all the notes of all members of the bench as well as the photographs and evidence collected by the Chairman and his wife on their clandestine site visit.” It reminded the Justices of “your duty of full and frank disclosure in judicial review proceedings.”

The Clerk to the Justices replied on 16 December 2008, though it seems not to have reached the Council until 29 December 2008. The letter referred to, but did not enclose, the clerk’s note of counsel’s submissions on 5 November 2008. It enclosed the copy of the clerk’s note of the Justices’ reasons which I have already quoted. The only respects in which Mr Goodman’s note was challenged was on one point of detail as to counsel’s submissions on the jurisdiction question and, inferentially, by the assertion in the letter that “The bench heard submissions from both parties before exercising its discretion.”

On 29 December 2009 the Council issued an application seeking permission to add further grounds of claim, the supplementary grounds, dated 23 December 2008, having been settled by Mr Goodman. They were supported by a further witness statement from Mr Miles.

On 6 March 2009, having been told that the matter was listed for hearing on 20 March 2009, Mr Oliver’s solicitors wrote again to the Administrative Court. Referring back to their earlier letter of 12 August 2008, they reiterated that he could not afford to be involved in the judicial review proceedings because of the high level of costs. They pointed out that Mr Oliver had offered to remove the light in return for the Council revoking the Abatement Notice but that this offer had been declined (see paragraph [13] above), so that the matter proceeded to a full contested hearing “which quite correctly overturned the Abatement Notice.” They asserted that, “on the basis that costs would normally follow the event, it is absolutely right that [the Council] should be responsible for Mr Oliver’s costs”. They submitted that, whether or not there was any impropriety on the part of the Chairman, “the Court came to the correct conclusion in dismissing the Abatement Notice, and were forced to that conclusion by the overpowering weight of the evidence … The Abatement Notice … cannot, in our submission, be reasonable or justifiable.” They asked for these matters of principle to be taken into account when considering the Council’s application for judicial review. I have indeed taken them all into account.

The matter came on for hearing before me on 20 March 2009. The Council was again represented by Mr Goodman. The Justices and Mr Oliver were neither present nor represented.

At the outset of the hearing I gave the Council permission to amend by adding the further grounds of claim set out in the supplementary grounds dated 23 December 2008.

At the end of the hearing I reserved judgment, which I now hand down.

The Council’s grounds of challenge in relation to the first hearing before the Justices were put by Mr Goodman in the form of three linked submissions.

Mr Goodman’s first submission is that the Chairman’s private view was impermissible, irregular and such as, in principle, to invalidate the proceedings. He took me to a number of authorities to make good this proposition.

The general principle was stated by Lord Denning in Tameshwar v The Queen [1957] AC 476 at page 484:

“in civil cases … a view, coupled with a demonstration, is part of the evidence. So much so that if it takes place in the absence of one party without his consent, the trial is bad – see Goold v Evans & Co [1951] 2 TLR 1189.”

The leading authority on the topic is Salsbury v Woodland [1970] 1 QB 324, where the claim was for negligently allowing severed telephone wires to fall into the highway causing an obstruction. The trial judge had a private view of the highway. Widgery LJ at page 343, having referred to Goold v Evans & Co [1951] 2 TLR 1189, drew a distinction between, on the one hand, “a judge going to see some public place, where all that is involved is the presence of the judge using his eyes to see in three dimensions and true colour something which had previously been represented to him in plan and photograph” and, on the other hand, “some kind of demonstration in which the events of the accident are reconstructed or simulated”.

The former is permissible, even if undertaken without reference to the parties. As Widgery LJ said at page 344, “A view of that kind is constantly held by a judge by himself without reference to the parties at all. It is a commonplace for a judge on circuit to find it convenient to see the locus of a road accident in respect of which he is trying a case at the assizes.” And Sachs LJ made just the same point at pages 349-350.

The latter, if undertaken by the judge alone without reference to the parties is entirely irregular. As Denning LJ said in Goold v Evans & Co [1951] 2 TLR 1189 at page 1191:

“It is a fundamental principle of our law that a judge must act on the evidence before him and not on outside information; and, further, the evidence on which he acts must be given in the presence of both parties, or, at any rate, each party must be given an opportunity of being present. Speaking for myself. I think that a view is part of the evidence, just as much as an exhibit. It is real evidence. The tribunal sees the real thing instead of having a drawing or a photograph of it. But, even if a view is not evidence, the same principles apply. The judge must make his view in the presence of both parties, or, at any rate, each party must be given an opportunity of being present. The only exception is when a judge goes by himself to see some public place, such as the site of a road accident, with neither party present.”

What activities suffice to take the case from the permissible to the impermissible? Widgery LJ referred, as we have seen, to “some kind of demonstration in which … events … are reconstructed or simulated”. Sachs LJ at page 349 referred to “a demonstration of the performance of some task” and cited what Hodson LJ had said in Goold v Evans & Co [1951] 2 TLR 1189 at page 1192:

“What I think happened in this case was something more than a view, because the view took place and an operation was performed, purporting to be the same operation as that which had been carried out when the plaintiff was injured.”

Harman LJ at page 346 said this:

“If, of course, there had been something in the nature of an attempt to reconstruct the circumstances, then I agree that it certainly would not have done for the judge to go without both sides being present. If there had been some attempt to lay the wire across the road, it would have been fatal.”

In my judgment it is quite clear that the Chairman’s activities fell on the wrong side of the line, for the unchallenged evidence is that he conducted, at least in part, precisely the same experiments as Ms Goult had described in her evidence and about which, it will be recalled, he had himself asked her questions. What is the consequence? Prima facie, it is “fatal”, to use Harman LJ’s expression; the “trial is bad”, to use Lord Denning’s expression.

I will consider below whether these consequences can be avoided in the light of the Chairman’s account, including his account of what took place at his house on 23 April 2008; my conclusion, as will appear in due course, is that they cannot. So, on this ground alone, in my judgment, the decision of the Justices on 29 April 2008 must be quashed.

Mr Goodman next submits, as a further ground of fatal irregularity, that all the evidence – and, as we have seen, what is observed at a view is part of the evidence – must be seen by all the decision makers.

Mr Goodman referred me to various decisions of the Court of Appeal, Criminal Division (R v Gurney [1976] Crim LR 567, [1977] RTR 211, R v Albarus and James [1989] Crim LR 905 and R v Davis, Johnson and Rowe [2000] Crim LR 1012, [2001] 1 Cr App R 115) which show that in a criminal case the jury must stay together and must hear all the evidence together, or (in the case of a view) must all attend the view together, it not being permissible to divide them by allowing some of their number to view something which the others do not see. As Lord Widgery CJ put it in Gurney, there is no place in our system for apportioning work between jurors.

There is, Mr Goodman says, no relevant distinction to be drawn in this context between the jury in a criminal case and a bench of magistrates (or, indeed, any other multi-member tribunal) in a civil case. Where there is more than one decision-maker – whether jurors or magistrates – then all must attend the view. Otherwise, as pointed out in R v Davis, Johnson and Rowe [2000] Crim LR 1012, [2001] 1 Cr App R 115, there is a risk that the individual who has a private view may come up with his own theory of the matter.

I agree with Mr Goodman. On this ground also the decision of the Justices on 29 April 2008 must, in my judgment, be quashed.

Thirdly, Mr Goodman submits that justice must not only be fairly done but be seen to be fairly done. He points to what Lord Donaldson of Lymington MR said in Regina v Leicester City Justices ex p Barrow [1991] 2 QB 260 at page 284, a case where Justices had refused to permit an unrepresented defendant the assistance of a McKenzie friend:

“There are many basic rules covering the administration of justice by the courts, but they can be summed up by saying that it must be administered fairly and, unless the interests of justice otherwise require, it must be administered openly and its administration must not only be fair but be seen to be fair.”

Lord Donaldson continued at page 290:

“I conclude that the Leicester City justices inadvertently erred and that the error created apparent unfairness. It may be that Mr. John would have advised the applicants to probe the evidence of Mr. Sharman as to the posting of the demand and reminder. We cannot know. Nor can we know what his answers would have been. There is therefore the potential for actual unfairness.

What should be done? Any unfairness, whether apparent or actual and however inadvertent, strikes at the roots of justice. I cannot be sure that the applicants were not prejudiced and accordingly I have no doubt that the justices’ order should be quashed.”

To the same effect, Mr Goodman says, is the observation of Bingham LJ in R v Chief Constable of the Thames Valley Police ex p Cotton [1990] IRLR 344 at para [60] that:

“While cases may no doubt arise in which it can properly be held that denying the subject of a decision an adequate opportunity to put his case is not in all the circumstances unfair, I would expect these cases to be of great rarity … This is a field in which appearances are generally thought to matter.”

Mr Goodman says that justice in this case was not administered openly and was not seen to be fair. The Council’s request for a view was refused but, notwithstanding that, the Chairman carried out a clandestine view, without the knowledge of either the parties or even the other Justices. He apparently conducted his own experiments and gathered his own evidence – but from the wrong viewpoint, for he was not able to observe things, as Ms Goult had done, from Mr Nipper’s bedroom. And, Mr Goodman says, there are contradictions between the various accounts we have of what took place at the Chairman’s house on 23 April 2008.

The full facts, he says, have never been disclosed. The photographs from the site visit have never been disclosed nor the notes said to have been separately prepared by the three Justices. It is likely, he says, that what the Chairman saw, considered and concluded on his site visit played a part in his decision. Despite the various accounts we have of what took place, lingering doubts, he says, remain and will always remain as to what evidence the Chairman collated, what theories he may have formed and what role the view may have played in his and his colleagues’ decisions. There was no opportunity for the Council to challenge the Chairman’s evidence or theories. He was not an expert and could have been led into any number of erroneous conclusions. Mr Goodman adds that the experiments the Chairman was seen to conduct hardly inspire confidence in his methodology.

Importantly, he says, no witness statements have been produced attempting to reconcile the contradictions. The Justices, he says, have chosen not to give witness statements or to make full and frank disclosure of what went on. As he points out, the Chairman’s written statement does not even address all the known facts, such as the presence of his wife on the view and the experiments with the newspaper. He says that in such circumstances I must be slow to construe facts in their favour; on the contrary, he says, I am entitled to draw inferences against the Justices on points that remain obscure or where there are gaps or contradictions in the evidence. He points to the well known passage in the judgment of Laws LJ in The Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Limited [2002] EWCA Civ 1409 at para [50]:

“there is – of course – a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide. The real question here is whether in the evidence put forward on his behalf the Secretary of State has given a true and comprehensive account of the way the relevant decisions in the case were arrived at. If the court has not been given a true and comprehensive account, but has had to tease the truth out of late discovery, it may be appropriate to draw inferences against the Secretary of State upon points which remain obscure”

By analogy with the approach adopted in cases of bias, Mr Goodman submits that the denial that the view played any part in the Justices’ decision is not an answer, because, as he puts it, the question of apparent fairness, like the question of apparent bias, is an objective one based on appearances, not on assertions as to what might have happened. In this connection he points to what Lord Woolf said in Regina v Gough [1993] AC 646 at page 672 (Mr Goodman acknowledges, of course, that this has to be read in the light of the subsequent decisions of the House of Lords referred to below, his purpose being to point to Lord Woolf’s references to the “insidious” and the “unconscious”):

“It must be remembered that except in the rare case where actual bias is alleged, the court is not concerned to investigate whether or not bias has been established. Whether it is a judge, a member of the jury, justices or their clerk, who is alleged to be biased, the courts do not regard it as being desirable or useful to inquire into the individual’s state of mind. It is not desirable because of the confidential nature of the judicial decision making, process. It is not useful because the courts have long recognised that bias operates in such an insidious manner that the person alleged to be biased may be quite unconscious of its effect.

It is because the court in the majority of cases does not inquire whether actual bias exists that the maxim that justice must not only be done but seen to be done applies. When considering whether there is a real danger of injustice, the court gives effect to the maxim, but does so by examining all the material available and giving its conclusion on that material. If the court having done so is satisfied there is no danger of the alleged bias having created injustice, then the application to quash the decision should be dismissed.”

More generally, he says, the matter is to be considered, as would a case of bias (see Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, at paras [102]-[103], and Lawal v Northern Spirit Ltd [2003] UKHL 35, [2003] ICR 856, at para [14]), from the perspective of “a fair-minded and informed observer” who “adopt[s] a balanced approach” and is “neither complacent nor unduly sensitive or suspicious.” Would the circumstances lead such a fair-minded and informed observer to conclude that there was a “real possibility” that justice had not been done, always recognising (see Regina v Abdroikov, Regina v Green, Regina v Williamson [2007] UKHL 37, [2007] 1 WLR 2679, at para [16]) that there must be some “demonstrable and rational basis” for such a view?

In the circumstances, Mr Goodman says, the fair-minded observer would not be satisfied that justice was properly done. On the contrary, he says, on the basis of everything that is known any fair-minded and informed observer would think, would be entitled to infer, that there is a real risk that the Chairman’s evidence may have played a part – even if only an unconscious and insidious part – in influencing the decision-making process.

Even taking at face value what the Chairman said in his written statement, there are, says Mr Goodman, obvious difficulties in the way of any assertion that the Chairman’s site visit did not affect the decision-making process. On his own account, the decision arrived at by the Justices on 10 April 2008 was only “provisional” and it was not “confirmed” until the meeting at his house on 23 April 2008. So, says Mr Goodman, referring to what Lord Steyn said in R (Burkett) v Hammersmith and Fulham London Borough Council [2002] UKHL 23, [2002] 1 WLR 1593, at para [43], the decision in question was, as a matter of fact and law, made only when the three Justices met at the Chairman’s house on 23 April 2008; but on the Chairman’s own written account (whatever subsequent accounts may suggest) he mentioned the visit to his colleagues “and showed the photos I had taken” before they “went through all the papers we had individually prepared”. That, as it seems to me, is clear if one considers what he wrote. I have already quoted the whole of the statement but it is useful to set out again the three central paragraphs describing what happened at his house:

“We met again at my house on 23rd April.

Only at this point did I mentioned [sic] to them I had been to the site and showed the photos I had taken.

We went through all the papers we had individually prepared and confirmed our initial decision, we then collectively formulated from these papers our reasons.”

The sequence of events is clear enough. The decision was taken collectively after the Chairman had told his colleagues that he had been to the site and showed them the photographs he had taken.

On top of all this, Mr Goodman asks why the Chairman should not merely have gone to the site but conducted experiments with a newspaper and taken photographs if he had already made his mind up. If he had already made his mind up, why conduct experiments with a newspaper? Surely the very fact that he conducted the experiments suggests that his mind was still wavering, leading the fair-minded observer to think that it night have affected his mind. And why take photographs if not to share his findings with the other Justices? – as indeed he admits he did on 23 April 2008. Any fair-minded observer, Mr Goodman says, would think that the Chairman visited the site and conducted experiments in order to inform his conclusions and view of the case – in other words would think that what he saw at the site did play a part in his (and for that matter his colleagues’) decision.

I agree with Mr Goodman’s analysis. Its importance is not so much in establishing another basis of challenge – for it is enough for Mr Goodman’s purposes if he succeeds on his first or second submissions – but rather in demonstrating, as in my judgment it does, that what I have called the prima facie consequences of the Chairman’s site visit cannot be avoided in the light of the Chairman’s account, including his account of what took place at his house on 23 April 2008.

In the circumstances, Mr Goodman says, the Council is entitled to an order quashing the decision of the Justices and remitting the matter to a differently constituted bench, preferably by a different court within Hertfordshire, and with a clerk or legal adviser who has had nothing to do with the proceedings hitherto.

I agree. In the circumstances, and notwithstanding the various subsequent explanations which have been provided, the fact that the Chairman visited the site, without the other Justices, and conducted the experiments I have described is fatal to the validity of the trial. The trial is bad. Justice has not been seen to be done. The decision of the Justices on 29 April 2008 must be quashed.

Given my conclusion in relation to his challenge to the first hearing, Mr Goodman is right in saying that the subsequent decision of the Justices on 5 November 2008 must on that ground alone be quashed. But he has quite independent reasons for challenging the later decision and in all the circumstances I think I ought to deal with his complaints in that respect as well.

In relation to the hearing before the Justices on 5 November 2008 Mr Goodman has five grounds of complaint. I shall deal with them in turn (though not quite in the same order) but must first make a preliminary point.

I need not set out either provision in extenso but it is, with all respect to anyone who may have thought otherwise, obvious that the powers to award costs out of central funds under section 16(1) of the Prosecution of Offences Act 1985 or under regulation 16 of the Costs in Criminal Cases (General) Regulations 1986, SI 1986/1335 (as amended), are in each case confined to criminal matters and have no application to a civil matter such as the Justices were here dealing with. No-one has at any stage suggested that there is any other source of such a power. In fact it is plain that there is no such power: see Holden & Co v Crown Prosecution Service (No 2) [1994] 1 AC 22. And that remains the law. I note that in the section of Stone’s Justices Manual 2008 dealing with costs in civil proceedings (paragraph 1-805) the only provision identified as governing such costs is section 64 of the Magistrates’ Court 1980, which does not contain any power to award costs out of central funds. And, as Mr Goodman pointed out, the absence of any such power has been recognised more recently both by the Court of Appeal in R (Davies) v HM Deputy Coroner for Birmingham (No 2) [2004] EWCA Civ 207, [2004] 1 WLR 2739, at para [44], and by the Divisional Court in Samuda v Director of Public Prosecutions [2008] EWHC 205 (Admin).

Section 64 (1) provides as follows:

“On the hearing of a complaint, a magistrates’ court shall have power in its discretion to make such order as to costs –

(a)

on making the order for which the complaint is made, to be paid by the defendant to the complainant;

(b)

on dismissing the complaint, to be paid by the complainant to the defendant,

as it thinks just and reasonable; … ”

In my judgment, the Justices had no power to award Mr Oliver his costs out of public funds and their order of 29 April 2008 purporting to do so was made without jurisdiction and accordingly was, and is, a nullity.

Mr Goodman’s first complaint is that the Justices had no jurisdiction on 5 November 2008 to re-open their earlier decision as to costs by making an order in favour of Mr Oliver against the Council. He submits that their limited common law power to re-open a previous erroneous decision, though it may have enabled them to re-open their (clearly erroneous) decision to award Mr Oliver his costs out of central, funds did not enable them to re-open their (perfectly proper) decision not to award him his costs against the Council.

In these circumstances the question arises as to what (if any) jurisdiction the Justices had to embark upon the course they adopted on 5 November 2008 and whether the order they made on that occasion can stand.

The starting point is that the power given to Justices to “re-open cases to rectify mistakes” conferred on them by section 142 of the Magistrates’ Courts Act 1980, applies only when the Justices are exercising their criminal jurisdiction and not when exercising their civil jurisdiction: R (Periasamy Mathialagan) v London Borough of Southwark [2004] EWCA Civ 1689, [2005] RA 43, and Samuda v Director of Public Prosecutions [2008] EWHC 205 (Admin). However, it is also seemingly clear that Justices have a limited power to re-open cases at common law: see the discussion in Periasamy Mathialagan at paras [35]-[39]. The precise ambit of that power is a matter of some obscurity and debate; but what is quite clear is that there is no general power in Justices to re-open their decisions (see Periasamy Mathialagan at paras [38]-[39]), nor even a power to re-open a case “merely because of the existence of grounds which might support an application for judicial review” (see Periasamy Mathialagan per Waller LJ at para [37]).

One cannot go much further than to say (see Periasamy Mathialagan per Waller LJ at para [37]) that:

“the most that can be drawn from [the authorities] is that, where there has been a clear mistake by the court itself going to the basis of its jurisdiction, or the fairness of the proceedings, where the resulting decision would clearly be quashed on judicial review, it may be open to the court to correct the mistake of its own motion.”

Subsequently, in R (London Borough of Newham) v Stratford Magistrates Court [2008] EWHC 125 (Admin), Mr Andrew Nicol QC, following what Stanley Burnton J had said in R (Brighton and Hove City Council) v Brighton and Hove Justices [2004] EWHC 1800 (Admin) (an authority seemingly not cited to the Court of Appeal in Periasamy Mathialagan), treated the power as extending to the setting aside of an order “made as a result of a substantial procedural error, defect or mishap.”

I am content to accept that, consistently with this view of the law, the Justices had power on 5 November 2008 to re-open their previous order of 29 April 2008 to the extent of setting aside their erroneous order, made without jurisdiction, purporting to award Mr Oliver his costs out of central funds. Mr Goodman does not necessarily accept that the Justices had even that power, but in the final analysis it does not really concern him whether or not they did. For what, he says, the Justices quite plainly did not have, even on the most expansive reading of Periasamy Mathialagan and the other authorities, was any power to re-open the decision which is of interest to him, namely what he says was their decision – a perfectly proper decision lawfully made in the proper exercise of their jurisdiction – not to award costs against the Council.

There was, and could be, he says, no genuine and arguable dispute on 5 November 2008 as to the Council’s liability in costs: on 29 April 2008 the Justices had rejected the submission by Mr Oliver’s counsel – his primary submission – that the Council should pay his costs. That, says Mr Goodman, was a proper and proportionate exercise of their discretion, lawfully arrived at on a proper application of the relevant legal principles. Whatever the bounds of the common law jurisdiction to re-open may be, there is, and was, he says, no jurisdiction to revisit what he calls that perfectly lawful decision. As he says, the error that was made on 29 April 2008 – the only error – was to award Mr Oliver his costs from central funds; there was no error in the only decision that concerns the Council, the decision that it should not be ordered to pay Mr Oliver’s costs.

I agree with Mr Goodman’s submissions. In my judgment, the Justices had no jurisdiction on 5 November 2008 to re-open their decision on 29 April 2008 not to award Mr Oliver his costs against the Council.

Mr Goodman’s second complaint is that the procedure adopted by the Justices on 5 November 2008 was unfair and in breach of the principles of natural justice; the Justices, he complains, departed without warning from the two-stage procedure which had been suggested and to which, he says, they had assented. It was unfair, he says, because the Council was denied the opportunity to make submissions as to how any discretion the Justices might have should be exercised.

I cannot accept this contention. The fact is, as he frankly accepts, that Mr Goodman did deploy on this occasion the skeleton argument setting out both his submissions on the law and his submissions on the facts. And the fact is that he did not make any protest. There was, in the circumstances, no unfairness or breach of the principles of natural justice.

Mr Goodman’s third complaint is that the Justices were given an erroneous direction in law when they were advised, in terms, that “costs usually followed the event in these cases.” That is what Mr Goodman’s note records the clerk as having advised the Justices and this part of his note has not been challenged in any respect. This direction, he submits, referring for this purpose to the authorities that I have set out in paragraphs [34]-[35] above, was a misdirection and wrong in law. The authorities, he says, do not justify a direction either that costs follow the event or that costs ordinarily follow the event in cases where a public authority has been found to have acted in good faith and not unreasonably. The clerk’s direction, accordingly, was erroneous.

This matter was touched on by the Clerk to the Justices in his letter dated 16 December 2008 in answer to the Council’s pre-action protocol letter. His letter is as interesting for what it does not say as for what it does say: “the relevant law on cost [sic] is contained in S.64 of the MCA 1980 which was read by the clerk, to the bench. This is what the bench were asked to consider.”

Again I agree with Mr Goodman. The direction, as recorded in his note, was plainly wrong in law, and there is no suggestion in anything that has ever been provided to us, either by the Justices or by their legal adviser, that any further or correct direction was ever given.

Mr Goodman’s next complaint is that the Justices gave no reasons for their decision to order the Council to pay Mr Oliver’s costs. It was, he says, incumbent upon the Justices to give reasons for departing from their previous decision; the Council is entitled to know why a different decision had been reached. The failure to give reasons in these circumstances is, he submits, an error susceptible to judicial review.

I agree with Mr Goodman.

There is no need to give reasons for a decision as to costs “if the reason for decision in respect of costs is clearly implicit from the circumstances in which the award is made.” On the other hand, “Where the reason for an order as to costs is not obvious, the judge should explain why he or she has made the order”, albeit that “The explanation can usually be brief”: see English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409, at para [14] per Lord Phillips of Worth Matravers MR. Adopting the same approach in Cunningham v Exeter Crown Court [2003] EWHC 184 (Admin) at para [14], Clarke LJ said that “The court should give the reason or reasons for its decision on costs unless the circumstances make the reasons obvious; for example, where cost are ordered to follow the event.” Putting the same point the other way round, in The Mayor and Burgesses of the London Borough of Brent v Aniedobe (unreported) 23 November 1999, Swinton Thomas LJ said that “if a judge does depart from the ordinary order (that is in this case the costs following the event) it is … incumbent on him to give reasons, albeit short reasons, for taking that unusual course.”

It follows, in my judgment, that if, in a case such as this, Justices are to make an order for costs against the Council it is incumbent upon them to give reasons, for the authorities relied upon by Mr Goodman demonstrate, as we have seen, that costs in such cases do not simply follow the event.

A similar point arose before me in Chief Constable of the West Midlands Police v Coventry Crown Court and Tubman [2001] LLR 144. That was a licensing case where the relevant principle (see R v Totnes Licensing Justices ex parte Chief Constable of Devon and Cornwall [1990] 156 JP 587 and R v Merthyr Tydfil Crown Court ex parte Chief Constable of Dyfed Powys Police [2001] LLR 133) is that costs will be awarded against the police only if their opposition to the licence was misconceived, without proper foundation, utterly unreasonable or born of malice, bad faith or some improper motive; so long as they act responsibly in accordance with their public duty, then no adverse order for costs can be made against them. At para [24] I said this:

“In circumstances where an order of the kind in question can only be made on the court being satisfied that certain conditions are met, at least some indication should be given as to the reasoning which underlies the court’s decision, and why it is that the court finds that those conditions are met.”

The same, in my judgment, applies here.

Mr Goodman’s final complaint is that, in deciding to order the Council to pay Mr Oliver’s costs, the Justices were acting not merely inconsistently with the relevant authorities but irrationally in the Wednesbury sense. Given what they had said in their judgment on 29 April 2008, there was, he says, no principled basis upon which, consistently with the authorities, they could properly have awarded costs against the Council – indeed, they had (properly) not done so on 29 April 2008. Nor, given their decision on that occasion, was there any rational basis for coming to a different decision on 5 November 2008. As he points out, nothing about the Council’s conduct had changed – nothing new had emerged since the earlier hearing – to justify a different view. It is, he submits, with it might be thought some understatement, difficult to discern what rational reasoning process (if any) could have lain behind this change of mind – not least in the absence of any articulated reasons for the Justices’ decision.

Again, I have to agree with Mr Goodman. The decision to award costs against the Council cannot be justified in the light of the authorities, given the Justices’ findings as to Ms Goult’s approach. And in the absence of any explanation – and we have none – it was simply unreasonable, irrational, to make an order in November 2008 the precise reverse of the order previously made in Aril 2008, when it could not be suggested that anything had changed or that anything new had come to light, save only the unfortunate fact that there was no power to order payment of Mr Oliver’s costs out of central funds.

Mr Goodman asserts that the order of 5 November 2008 directing that the Council pay Mr Oliver’s costs should be quashed irrespective of whether the Council’s challenge to the substantive decision of 29 April 2008 is successful. I agree. I have in the event quashed that decision, but it seems to me that I should in any event also quash the decision of 5 November 2008.

In the circumstances, and for the reasons I have given, the Council is entitled to, and I shall make, orders quashing:

If Mr Oliver wishes further to pursue his appeal, the matter will be remitted to a differently constituted bench, preferably to a different court within Hertfordshire, and with a clerk or legal adviser who has had nothing to do with the proceedings hitherto.

Mr Goodman seeks an order for his costs of the judicial review proceedings against the Justices on the indemnity, alternatively the standard, basis. He has supplied me with a statement of costs for summary assessment dated 16 March 2009 setting out how the Council’s costs of the judicial review proceedings have been calculated in the total sum of £9,367.50. The figure seems appropriate.

Mr Goodman relies upon R (Davies) v HM Deputy Coroner for Birmingham (No 2) [2004] EWCA Civ 207, [2004] 1 WLR 2739, at para [46(i)], where Brooke LJ said that:

“The established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings.”

He added at para [48]:

“Needless to say, if a coroner, in the light of this judgment, contents himself with signing a witness statement in which he sets out all the relevant facts surrounding the inquest and responds factually to any specific points made by the claimant in an attitude of strict neutrality, he will not be at risk of an adverse order for costs except in the circumstances set out in paragraph 47 (i) above.”

Mr Goodman identifies a number of reasons why, as he would have it, I should here order the Justices to pay the costs:

I have to confess that on this point my mind has wavered, but at the end of the day I have concluded – without much enthusiasm I have to say, and on a very fine balance – that it would not be appropriate to order the Justices, or the Chairman, to pay the costs. Their conduct during the hearings is open to criticism, indeed in some respects censure, and their responses (or, more to the point, lack of adequate responses) both to the pre-action protocol letters and to the grounds of claim in the judicial review proceedings verge on the lamentable. But there is absent, as it seems, to me, the flagrancy to which Brooke LJ refers, and although their declining to submit to a consent order was perhaps regrettable, it was not, in my judgment, so unreasonable as to justify condemning them in costs.

The application for judicial review succeeds. I will make an order quashing both decisions of the Justices. There will be no order as to costs.