Fox, R (on the application of) v Sabel

LORD JUSTICE SIMON: In form, the present claim seeks an order requiring the City of London Magistrates' Court to state a case for the opinion of the court. In substance, it is a challenge to decisions made by them in a private prosecution brought by the claimant against the interested party, Mr Sabel. I shall refer to them respectively as "the Magistrates' Court" and "the defendant".

The claimant had since 2012 been disturbed by noise, which she claimed was caused by a boiler which had been installed on a party wall in the defendant's house next door to her maisonette. Despite an initial period of cooperation between the neighbours, during which attempts were made to reduce the noise from the boiler, the time came when the claimant decided to bring a private prosecution against the defendant under sections 79 and 82 of the Environmental Protection Act 1990. A summons was issued in the Westminster Magistrates' Court on 4 December 2014, with a first hearing date on 7 January 2015. On that day, the case was adjourned for a case management hearing on 21 January.

On that day, a Preparation for Effective Trial ("PET") form was completed. This is a document which has to be completed by prosecution and defence, and the stated purpose is to collect information about the case that the court requires in order to ensure that the trial is effective. The PET form was filled in by both parties. On page 3, there is a heading "Case Management Information". It was here that the three factual issues were identified: first, whether the noise complained of came from the defendant's flat; secondly, whether it was of a sufficient level to amount to a nuisance; and thirdly, whether there was also vibration. On page 5, there were lists of witnesses, six for the prosecution and four for the defence, and in the defendant's list an estimate of the time that each of their witnesses was likely to take. Prosecution witness number 6 was described as "Noisedirect", and was said to be one of three noise witnesses. There was a column in which ticks were invited as to whether the witness was going to attend. That was ticked, to indicate that the Noisedirect witness would attend the trial.

On page 6, there is a box in which the trial date was set for 27 March 2015 at the City of London Magistrates' Court with a time estimate of five hours. It was signed by the magistrate as well as the claimant and the defendant's advocate.

Page 7 of the PET form contains a list of "standard trial preparation time limits" on which the claimant relies in the present proceedings. The total time to comply with these time limits is stated to be six weeks, unless expert evidence is to be called, in which case it is nine weeks. In fact the trial date of 27 March was slightly more than nine weeks from the hearing date on 21 January. Under the heading "(m) Expert evidence (Criminal Procedure Rules, 33.4, 33.6)" the form sets out:

There is an asterisk, which indicates that these times are not prescribed by the Rules. There was also a handwritten note: "Noisedirect asap."

The claimant instructed an expert environmental health practitioner, Ms Kayani, on 9 February, and the report she produced was dated 2 March. That dealt with what were described in the PET form as the ‘factual’ issues. The report appears to have been filed with the court on 6 March, some three weeks before the trial, and came to the notice of the defendant soon after that. It also appears that the claimant was trying to contact the defendant about the report from about 16 March. However, it was not until 20 March that she made contact with the defendant's advocate, when she was told that the attendance of Ms Kayani was required at trial. Unfortunately, Ms Kayani was not available to attend the trial on 27 March.

On 23 March, the claimant wrote to the court asking for an adjournment:

As Mr Paget for the claimant pointed out, the letter did not say that the claimant had only been told that Ms Kayani was required at trial on the date she wrote the letter. Nevertheless, he submits that it was unreasonable to refuse the application when looking at the matter ‘in the round’. For my part, I cannot see what there was ‘in the round’ for the court to consider beyond the contents of the letter.

The application to adjourn was refused and the circumstances of the refusal were set out in a later letter from the court dated 18 June 2015, whose material parts read:

The claimant attended the trial on 27 March and attempted to read the report to the bench. The defendant objected to this course.

She did not, so it appears, ask for an adjournment at that point, and she did not add to her submissions as to why an adjournment should have been granted beyond the contents of the 23 March letter. She did, however, ask that the trial go part heard so as to enable Ms Kayani to be cross-examined on the contents of her report on a subsequent occasion. That application was refused because of difficulties in reconstituting the bench of magistrates and because further delay in the matter was not in the interests of justice. The case then went ahead and the defendant was acquitted.

The claimant applied to the magistrates to state a case. They refused the application on 18 June 2015 on the basis that it was frivolous; and the claimant commenced the present proceedings for judicial review of that decision on 18 September 2015. The matter comes before this court with the permission of the single judge.

Mr Paget in his persuasive submissions made a number of points in support of the claim that the decision to refuse an adjournment was unreasonable and should be quashed. First, he submitted that the claimant had complied with the Criminal Procedure Rules in her approach to evidence. He referred in his written submissions to, and relied on, the case of Fine & Robinson v Abergavenny Magistrates' Court [2007] EWHC 2005 (Admin) in which the divisional court observed that:

Secondly, he argued that the need for an adjournment had only arisen because of the defendant's late requirement that the expert be present to be cross-examined. He submitted that if one looks at subparagraph (m) in the PET form, to which I have referred, subparagraph (ii) makes clear that, "a party who wants that expert to attend the trial must give notice within seven days after (i)". He submits that there was a failure by the defendant and the defendant's representatives to notify the claimant that they required the expert to attend trial within the seven day limit. He also relied on a broad failure of the bench to concern itself with the overriding objective in CPR 1.1:

Thirdly, he submitted there was no sufficient reason why the expert evidence should not have been read, since without it "the claimant's case was totally compromised".

In my view, there are a number of difficulties with the present claim, but before turning to these I would wish to make two general observations. First, this court has in recent times frequently discouraged too easily to adjourn cases in the Magistrates' Court. It is unnecessary to refer to particular authority in support of that proposition, the position is clear. Secondly, the reference to the claimant's case being "totally compromised" should not distract attention from the fact that the claimant chose to bring a prosecution. She could no doubt have brought a civil claim to prevent a past or continuing nuisance, and a claim for damages caused by the tort. However, once she brought a prosecution, her status was that of a prosecutor bringing a criminal charge and not that of an individual bringing a civil claim. When she filled in the PET form she was doing so in the same capacity as any prosecutor in the Magistrates' Courts in terms of the obligations that were undertaken.

I turn then to what I see as the particular difficulties with the present claim as advanced on the claimant's behalf. The claimant had never clearly told the court or the defendant that the prosecution intended to rely on expert evidence. I accept that there is reference to expert evidence being filed asap, but in my judgment the matter should have been made very much more clear in the PET form, and if it had been made more clear, then specific provision could have been made for it. As it was, if there had been timely compliance with the times set out in the PET form, it would have been difficult to have the trial on 27 March. Any slippage would have made that impossible if the defendant had chosen to exercise his right to call expert evidence.

Secondly, even if the prescribed timetable had been thought appropriate in a case like this -- and I have expressed the view as to why it was not -- the claimant had failed to serve the expert evidence within 28 days. If the handwritten expression "asap" had significance, and I accept for present purposes that it did, it should have been understood to mean that the expert evidence would be served within the 28 day period and not outside it. As already noted, the expert was not instructed until 9 February. That delay meant that the expert report could not be served asap. Furthermore, the report which should have been served, according to the prescribed timetable, on 8 February, was not available until 6 March, three weeks before the trial.

Thirdly, when instructing the expert, the claimant should have ensured that the expert was available to give evidence at trial if required. The trial was now fixed, and the instructions on 9 February should have made clear that the expert might be required. The failure to make that clear lay at the heart of the claimant's subsequent problems. So far as the defendant was concerned, the PET form indicated that Noisedirect evidence would be called, and it is in the light of that entry in the PET form that one must see Mr Paget's criticism that the defendant had failed to comply with (ii) in (m).

Fourthly, the court's decision to refuse an adjournment, and its refusal to allow the case to go part heard, has to be viewed in the light of the way in which the request was put. As I have already indicated, the request for an adjournment was expressed exclusively on the basis of the 23 March letter, which was not compelling. But it also has to be seen in the light of the need for cases to be heard promptly and effectively. In the present case there was a bench of three, which would necessarily lead to a delay if the case were adjourned, and particularly so if it were adjourned part heard. In any event, the case had been managed on the basis that it would conclude on 27 March, and not take up further time to the prejudice of other court users. I do not accept the proposition implicit in Mr Paget's submission that the claimant was entitled to one adjournment.

Fifthly, what occurred was not, as Mr Paget sought to characterise it, a procedural ambush by the defence. The defence did not seek to exclude the evidence. It asserted a right to cross-examine a witness if the evidence were relied on, on the basis that they understood that the witness would be called. If the evidence was essential to the prosecution, it should have been disclosed at the earliest possible stage; if it was not essential, then the prejudice from its exclusion was accordingly less. But the question here is whether the magistrates acted unreasonably on the basis of what they knew, and as they knew very little more than what was in the contents of the 23 March letter, I am not persuaded that their decision to refuse an adjournment was outwith the range of reasonable responses to the application.

Finally, when considering a claim for what is discretionary relief, it is appropriate for this court to consider whether the admission of the expert report might have made a material difference. In my view, it would not have done so. The primary evidence in support of the prosecution was always that of the claimant and one other witness who was able to speak of the facts which underlay the claim in the prosecution. She had made a statement dated 12 March 2015, setting out the history of the noise and vibration and its effect on her. The statement exhibited plans and photographs of the defendant's property which she said supported the prosecution.

It seems to me that there may be force in Mr Epstein's submission made in the skeleton argument that the claimant wanted an expert report because she was dissatisfied by the views of the Westminster Council inspectors, whose views did not assist the prosecution and who were going to be called by the defence, as she knew from the PET form. The expert report was long but discursive and reliant on the claimant's account, and although broadly supportive of the complaint of noise from the boilers, did not reach a very clear conclusion.

For these reasons, I would dismiss the claim.

MR JUSTICE COLLINS: I agree.

MR EPSTEIN: My Lords, could I invite consideration of a costs order in respect --

LORD JUSTICE SIMON: Have you put in a summary assessment statement of costs?

MR EPSTEIN: I haven't.

LORD JUSTICE SIMON: Well then how are we to proceed?

MR EPSTEIN: Forgive me, I was hoping that one could be submitted subsequently to detailed ...

LORD JUSTICE SIMON: Well the sensible course is to put in a statement of costs so the matter can be dealt with promptly. That is what the claimant has done. Why haven't you done that?

MR EPSTEIN: Forgive me, I wasn't aware that that was the procedure in this court.

MR JUSTICE COLLINS: It always has been.

MR EPSTEIN: Would it be possible to provide something to the court today?

LORD JUSTICE SIMON: Well this is a very inefficient way of dealing with it. It requires you to put something in writing, it requires the claimant to go to the expense of responding -- I don't see any reason why you shouldn't pay for that -- and then the court to deal with it on the papers.

MR JUSTICE COLLINS: Do you have any figure in mind at all?

MR EPSTEIN: Yes, my Lord.

MR JUSTICE COLLINS: What is the overall figure that you would claim if you were able to?

MR EPSTEIN: £5,550.

MR JUSTICE COLLINS: Half the other side.

MR EPSTEIN: Just less than half what the other side wrote to my ...

LORD JUSTICE SIMON: So you say £5,500?

MR EPSTEIN: My Lord, yes.

LORD JUSTICE SIMON: Well shall we hear what Mr Paget has to say about that.

MR PAGET: Yes, first the procedural point, the judicial review has been on the basis of procedural failings and it has been unsuccessful. It is difficult for Mr Epstein then to say, "Oh, well I should be entitled to my costs in spite of my procedural failings."

LORD JUSTICE SIMON: Well he is entitled to those costs, the question is how much should those costs be assessed at. You're not objecting to him having his costs, are you?

MR PAGET: As an interested party he is entitled to the costs in relation to the detailed grounds et cetera, but arguably not attendance today, because that didn't assist to what was already before the court by way of the detailed grounds.

MR JUSTICE COLLINS: Well only because we didn't need to call on him.

MR PAGET: My Lord, that is right, we've been unsuccessful, we bear our own costs, we would submit it would be disproportionate to then impose the whole of those costs on us as well.

MR JUSTICE COLLINS: Mr Paget, if you choose to bring a judicial review and you lose, and the interested party has a right to attend, and obviously is the one directly affected were you to succeed, then costs normally follow the event.

MR PAGET: My Lord, yes.

MR JUSTICE COLLINS: And that is why my Lord said that all we are surely concerned with is whether the quantum is sought is a reasonable quantum, or whether you object to it. It happens to be under half what you're claiming. Presumably your side believes that your claim was reasonable.

MR PAGET: My Lord, yes.

LORD JUSTICE SIMON: Perhaps we can ask what the breakdown is for that in broad terms. How much for your brief fee?

MR EPSTEIN: My attendance today, my Lord, is £1,250.

LORD JUSTICE SIMON: Is that all that you're charging? What about skeleton argument?

MR EPSTEIN: No, I also charged for preparation of the case at an hourly rate and the skeleton argument that I submitted back in December.

LORD JUSTICE SIMON: What is the total of your fees?

MR EPSTEIN: £4,750.

LORD JUSTICE SIMON: Right, so the balance is the attendance of your solicitors, is it?

MR EPSTEIN: No, the balance is actually the -- a conference that was conducted with my solicitors, and various other minor disbursements in terms of --

LORD JUSTICE SIMON: Yes, so how much are your solicitors claiming?

MR EPSTEIN: They charged £600 for the conference.

LORD JUSTICE SIMON: And that's all they charged?

MR EPSTEIN: Yes, because in fact after that stage they --

LORD JUSTICE SIMON: Right.

MR EPSTEIN: Yes.

MR PAGET: My Lords, can I make observations in relation to those details. I don't think there's solicitors actually acting for the interested party, and --

MR EPSTEIN: There were solicitors originally acting.

LORD JUSTICE SIMON: But you're not instructed by solicitors at the moment?

MR EPSTEIN: But I'm not instructed by solicitors.

LORD JUSTICE SIMON: Okay. That's very clear, thank you.

MR PAGET: And there was no skeleton provided by the interested party. I think Mr Epstein's referring to his detailed grounds.

MR EPSTEIN: Yes, I'm sorry, I think that was what -- it was only the detailed grounds document, which I think was referred by the court as a skeleton, forgive me, it isn't technically so.

But can I say this: this matter was taken on and costs were endeavoured to be kept at a minimum, which is why I apprised that the solicitor no longer be required for fear of elevating the costs.

LORD JUSTICE SIMON: Yes. Thank you very much.

MR EPSTEIN: Thank you.

LORD JUSTICE SIMON: There is an application for costs on behalf of the defendant in the sum of £5,500. Mr Epstein draws attention to the difference between that amount of costs and the rather larger, almost twice the amount, of costs incurred on behalf of the claimant in their statement costs. He draws attention to the fact that the defendant has tried to keep the costs down. In our view, there is no doubt that the defendant should be entitled to the costs of arguing against this claim and appearing here, notwithstanding that we have not called on Mr Epstein for his assistance. Nevertheless, we propose to abate the amount which is claimed to a sum of £3,500.

21 days?

MR PAGET: My Lord, yes.

LORD JUSTICE SIMON: Thank you very much for your assistance, particularly you, Mr Paget, who had to bear most of the burden of answering the court's questions.