Ebbnie, R (on the application of) v Surrey Police [2008] EWHC 166 (Admin)

Case No CO/5461/2006[2008] EWHC 166 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 21st January 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE DAVIS
Between
THE QUEEN ON THE APPLICATION OF VICTORIA EBBNIEClaimantv
Between
CHIEF CONSTABLE OF SURREY POLICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Mathew Turner (instructed by Messrs Kaj & Co Solicitors, London) appeared for ClaimantMr Stephen Morley (instructed by the Force Solicitor, Surrey Police) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE DAVIS: The applicant in this case, Ms Ebbnie, came as a visitor to the United Kingdom some time ago. She came on a Virgin Airways flight from Nigeria. Having arrived into this country, she stayed and then sought to leave to return to Nigeria. She was arrested at the airport on the basis that she had a invalid passport document which in due course was found to be a forgery or something of the kind. Criminal proceedings were instituted against her and she gave a story which quite clearly ultimately was accepted as a cock and bull story as to how she had come by this forged passport and she was sentenced to a term of six months' imprisonment. I was told that on her release she thereafter returned to Nigeria, where, presumably, she now still is. As I gather from the papers, her claim was that several thousands of pounds in cash which she had in her possession as she sought to leave the United Kingdom had been in connection with the purchase of certain equipment she needed for her shop in Nigeria.[2]At all events, when Ms Ebbnie was arrested at the airport and this large sum of cash, £7,662.50, was found on her, that cash was detained under the provisions of the Proceeds of Crime Act 2002. No complaint is made on her behalf that that was an unreasonable decision to detain that amount of cash as found on her. But in due course, and after Ms Ebbnie had been sentenced to a term of imprisonment, an application was made on 14th November 2005 for the continued detention of that amount of cash, there already having been one previous application of that kind, that application being made under the provisions of section 295(4) of the Proceeds of Crime Act 2002. Very shortly thereafter that application was followed by, and in effect superseded by, an application for forfeiture of the detained cash pursuant to the provisions of section 298 of the Proceeds of Crime Act 2002. There is no material before me and, as it would appear, no material placed before the Justices below to explain what caused the police to depart from this being an application for continued detention to an application for positive forfeiture; but it is the case that that application for forfeiture was made, it would appear, in precisely the same terms on the face of the form as the previous application of 14th November 2005 for continued detention.[3]Those proceedings made their way through the Magistrates' Court. Two hearings had been arranged after those proceedings had been commenced: one was on 6th December 2005 and the next was on 3rd January 2006. On neither occasion did the police officer having the conduct of the proceedings or any other representative for the police appear (it has since been said he was heavily engaged in a murder inquiry). On both occasions, on the other hand, legal representatives, including counsel on behalf of Ms Ebbnie, did appear. There was then a further hearing arranged on 17th January 2006. Initially the police officer seems to have been trying to persuade Ms Ebbnie's advisers that no attendance was called for pending further investigations but, in the event, a hearing did take place and certain directions, as I gather, were given. The application then came back before the Justices on 31st January 2006 when they heard the application. Ms Ebbnie was represented by counsel and the police officer appeared on behalf of the respondent. At that stage the application for forfeiture under section 298 was withdrawn by the respondent and was therefore marked dismissed by the court.[4]As I was told, although it does not appear very clearly from the stated case, what had prompted the withdrawal was the police officer's discovery, after he telephoned the airline, that Ms Ebbnie had indeed been recorded as on the flight list of passengers arriving through Virgin Airways on the day on which she said she had arrived. There is no other explanation before me (and I have not been told of any more detailed explanation put before the Justices) to cast light on why the police decided to withdraw the case at that particular stage, namely 31st January 2006. The only indication is what the police officer had been told in the course of his telephone conversation with Virgin Airways. It was said, as I gather, that the officer who had had conduct of the case had initially been acting on the footing that ti was the immigration service which would provide the necessary evidence and that he had been unaware of Virgin Airways' role until he made later enquiries.[5]At all events, the application for forfeiture having been withdrawn, an application was made on behalf of Ms Ebbnie for the costs of the proceedings. That was opposed. It is common ground before me that, by virtue of the statutory provisions applicable, the Magistrates were empowered to make such order for costs as they considered to be "just and reasonable". Certain authorities were cited to the Justices and those included the case of City of Bradford Metropolitan District Council v Booth [2000] 164 JP 485 DC. Towards the end of his judgment, the Lord Chief Justice, Lord Bingham of Cornhill, with whom Silber J agreed, said this:
"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."
[6]Both Mr Turner on behalf of the applicant and Mr Morley on behalf of the respondent before me agree that the decision in Booth was in point and properly fell to be considered and that the Magistrates were required to have regard to it in deciding how to exercise their discretion in this case. Mr Turner placed particular reliance on(i) of what the Lord Chief Justice had said, referring to the financial prejudice to Ms Ebbnie if no order for costs was made in her favour because she had not had the benefit of legal aid. Mr Morley on the other hand placed particular emphasis on what was said in(ii) on the need to encourage public authorities to stand by honest, reasonable and apparently sound decisions made in the public interest without fear of exposure to undue financial prejudice if the decision was successfully challenged.[7]The first question of law sought to be raised on the case stated is this:
"were the Justices wrong to apply the test in Bradford Metropolitan District Council v Booth when they were considering such costs as were fair, just and reasonable in all the circumstances of the case as were brought to their attention by the appellant?"
It is not, I think, entirely appropriate for a question to have been formulated in that way; and certainly it should not be answered by reference to the way it is formulated. Mr Turner and Mr Morley were rightly agreed that Bradford Metropolitan District Council v Booth did not lay down any "test". On the contrary, it is the words of statute which should be applied by the Justices. But that said, clearly the Justices were correct here to have regard to the decision in the Booth case and to that extent there can be no difficulty about the approach they adopted.[8]The second question posed by the Justices is this:
"if the Justices were right in applying this test; were they correct in determining the costs from the point where they found the respondent had caused unreasonable delay by failing to attend Court hearings."
Now, in the relevant respects, what the Justices found as set out in the case stated is this, paragraph 6, and I read it out in its entirety: a) We are of the opinion that the original seizure of the £7,662.50 found on Miss Ebbnie at the time of her arrest was reasonable and not made in bad faith. Additionally that there were reasonable grounds for the police to carry out their investigations and that the application for detention/forfeiture was properly brought by them. b) However in our opinion there came a time when there was an unreasonable delay by the police when the respondent did not appear in court on 6th December 2005 and 3rd January 2006 but the appellant was represented by Counsel. c) We found that costs should be ordered in relation to these two dates to cover the costs of Counsel attending. (We did not find that any additional costs had been incurred as the preparation work had been necessary in any event). We awarded such costs as appeared to be just, fair and reasonable in all the circumstances as we found them. We awarded £415.85 costs as these were the Counsel costs for 6th December 2005 and 3rd January 2006 as stated in the schedule of costs." I should add that a schedule of costs and bill of costs had been put in by Ms Ebbnie's solicitors which, including counsel's fees, gave rise to a total of £4,899.61. So the Justices awarded somewhat less than ten per cent of the total which had been claimed by the lawyers for Ms Ebbnie.[9]Mr Turner, on behalf of Ms Ebbnie appealing from that decision, advances the following three points in particular in support of his argument. He submits that it can be seen from the findings of the Justices at paragraph 6, in particular paragraph 6(b), that they had found that there had been unreasonable delay as from 6th December 2006. He submits that it really followed that the Justices should then have ordered the respondent to pay all the costs properly incurred thereafter up to the time the proceedings were withdrawn in consequence of that finding; and that they were quite wrong to confine those costs simply to the two dates on which the respondent had failed to appear. His second point is that the Justices, although they had referred to the Booth decision, had failed properly to take it into account and in particular the impact on Ms Ebbnie if she was left to bear her own significant costs of these proceedings. The third point that Mr Turner raised was that the Justices, he submitted, had wrongly conflated the issue of detention with the issue of forfeiture. Indeed, he draws attention to the rather vague wording in paragraph 6(a) which simply refers to "detention/forfeiture". Mr Turner's submission is that it may well have been perfectly reasonable for the police to have detained the money in the first instance but thereafter, for reasons unexplained, the police then saw fit positively to seek to forfeit this cash by the application of 17th November. It is not explained what further information had come to light to cause that; and thereafter the sequence of events indicates that no enquiries of any kind were made by the police until shortly before the final hearing where, in consequence of one telephone call made to Virgin Airways, the police were then prompted to withdraw the proceedings entirely. That also, submits Mr Turner, indicates that the Justices had completely failed properly to understand the position here.[10]On behalf of the respondent, Mr Morley makes these points. First he says, and I think he is right on this, that this court should be slow to interfere with a decision of the Justices on a question of costs, when by statute the Justices are given the powers of deciding what is just and reasonable. He submits that this court can only interfere, and again I think he is right on this, if the exercise of the discretion and the conclusion of the Justices was outside a range reasonably open to them. It is not a matter of considering whether or not other courts might have taken a different view. The second point he makes is that the Justices here were best placed to make that decision. They had heard counsel for Ms Ebbnie, they had heard the police officer himself explain the position and thus they were well equipped to deal with the point. Third, he submits that the discretion here was properly exercised. He submits that the broad reference to "detention/forfeiture" in 6(a) does not mean that the Justices were operating under any misapprehension and there is no reason to think that they did misunderstand the position. The fourth point he makes is that Booth was indeed properly taken into account by the Justices and, in particular, it is important that courts in general, and this court in particular, should have had regard to the second consideration advanced by the Lord Chief Justice to which I have alluded. His fifth submission, really reflecting what he said before, is that there was, as he submitted, no basis for the court concluding that the Justices' decision was so unreasonable as to entitle the Administrative Court to interfere.[11]In my view, the decision of the Justices is illogical on its face. First, if one takes the wording of paragraph 6(a) of the case stated, the clear impression given is that the Justices, having found (as they were entitled to find) that the original seizure was reasonable, then seemed to conflate the issue of continuing detention and forfeiture. But those two things do not stand on the same footing and, in particular, there remained no explanation given not only for the commencement of the forfeiture proceedings but thereafter the length of time which had elapsed before those proceedings were withdrawn.[12]I think it would be wrong for me to depart from what appears to have been the Justices' conclusion that, when the forfeiture application was made on 17th November 2005, the respondent was entitled so to make such application. That was an express finding by the Justices and on the whole, and whatever doubts I may have, I do not think that I am entitled to interfere with that finding. However, the Justices then went on expressly to find that there came a time when there was an unreasonable delay by the police. When was that time? Well, the Justices do not in terms make that clear. They go on to identify the times when the respondent did not appear in court on 6th December 2005 and 3rd January 2006; it may be that the Justices were finding that the unreasonable time really had come into existence and a reasonable period had elapsed by 3rd January 2006, although possibly they were indicating that as having arisen by 6th December 2005. But the point is that the Justices in terms had found that unreasonable delay had occurred by one or other of those dates. It seems to me simply illogical then only to award Ms Ebbnie just the costs of counsel's attendance on those two dates. Logically, once a reasonable period of time has elapsed and thereafter the proceedings are discontinued, one would expect, without good explanation given to the contrary, the winner of the case to get all costs properly, and I stress the word properly, incurred thereafter. But the Justices did not do that. They simply allowed the costs of those two hearings where the police had simply not bothered to attend.[13]What is the explanation proffered for the Justices reaching this conclusion? The Justices in 6(c) simply asserted:
"We found that costs should be ordered in relation to those two dates to cover the costs of Counsel attending."
But that is not linked at all in terms of reasoning to the fact that, as they also found, an unreasonable delay had occurred. The Justices, it is true, did say, as Mr Morley emphasised, this:
"(We did not find that any additional costs had been incurred as the preparation work had been necessary in any event.)"
One can understand that point if the entirety of the costs of preparation had been incurred either before 6th December 2005 or, on another view, 3rd January 2006. But the statement of costs was not worded in such a way as to give those breakdowns; and in any event it is difficult to think that there were not at least some preparation costs either after 6th December 2005 or after 3rd January 2006: even though it may well be the case that a significant amount of costs had been incurred before 6th December 2005 or 3rd January 2006, which on the Justices' findings should not properly result in the award of the entire costs in Ms Ebbnie's favour.[14]It seems to me, overall, that this reasoning simply cannot stand. It seems to me, with all respect, that it is in fact irrational on its face. Indeed, it might be said that if it was a rational conclusion then more reasons needed to be given to enable Ms Ebbnie to understand the position than in fact were given. Accordingly, although again I am not sure question 2 of the case stated is entirely appositely worded, but on the footing that it is, my answer to that question is no.[15]It seems to me, having reached that conclusion, that the only proper thing I can do (and I do regret this in view of the amounts at stake but I can see no alternative) is to remit the matter to the Justices, first to make a clear finding as to when the Justices say the unreasonable delay had occurred by (was it 6th December 2005 or was it 3rd January 2006); second, against that conclusion as found by the Justices, the Justices should then find what amount of costs were properly incurred after that date such that it is just and reasonable for them to be paid by the respondent to Ms Ebbnie. Accordingly, and to the extent indicated, this appeal succeeds.[16]Now, Mr Turner, this matter goes back to the Justices, unless, of course, you and Mr Morley can come to some agreement as to what the proper amount of costs is. But all I can say is on your current statement of costs there is no breakdown as to timings of preparation and, of course, we do have the unfortunate position, on my reading of it, that we do not know whether the costs run from the December date or from the 3rd January date. It may be that, I know not, not much preparation work was done in that three week period but I do not know. If you can resolve it before going back before the Justices so much the better. If you cannot, the Justices will have to decide.[17]Now, what about the costs of this appeal?[18]MR TURNER: Well, my Lord, I have a schedule of costs in relation to the defence. I do not know if it has been submitted to the court.[19]MR JUSTICE DAVIS: Well, if it has I have not seen it. Have you seen this, Mr Morley?[20]MR MORLEY: My Lord, yes. It was faxed to us on Friday evening. (handed)[21]MR JUSTICE DAVIS: So, for example, five hours allowed for attendance at hearing and travel and waiting, it would not have been that long, would it?[22]MR TURNER: My Lord, it may be that those --[23]MR JUSTICE DAVIS: And the hearing will not have taken three hours. Travel and waiting, it cannot be five hours, can it?[24]MR TURNER: Maybe those can be certainly be adjusted. It appears the hearing that we have had, I think, lasted just about an hour.[25]MR JUSTICE DAVIS: Two hours attendance on others. Every attendance is rounded up pretty much to an hour. Attendance on opponents one hour 20. Twenty minutes negotiations. Right, anyway, that is what you want.[26]MR TURNER: My Lord, that is the application.

MR JUSTICE DAVIS: Is VAT properly included? Yes, it is, is it? VAT is properly included?

[28]MR MORLEY: I think it is, my Lord, yes.[29]MR JUSTICE DAVIS: What do you say about the amount of costs? What would your schedule of costs say? That is always a good starting point.[30]MR MORLEY: Well, my Lord, our total was £2,950. I have a copy.[31]MR JUSTICE DAVIS: Could I have a look at that? Mr Turner had to be responsible for preparing the bundle, did he not, for his side?[32]MR TURNER: My Lord, I have seen that schedule of costs as well.

MR JUSTICE DAVIS: You are at six hours for attendance at hearing and travel.

[34]MR MORLEY: My Lord, yes. My Lord, he has come up from Surrey and it was a time estimate of three hours for the hearing.

MR JUSTICE DAVIS: I understand that.

[36]MR MORLEY: My Lord, I think what your Lordship will notice from that in particular, and one of the points that I wish to raise, is the attendance at hearing. My solicitor, I think, reduces his hourly rate for coming and simply sitting in court. £175 an hour for my learned friend's attendance is a little excessive, I would respectfully submit. You do not need a principal sitting behind you at £175 an hour at a relatively straightforward hearing as this.

MR JUSTICE DAVIS: You have a partner in your firm behind you?

[38]MR TURNER: My Lord, no. I think he had intended to come but was not able to, so it is a member of the firm who has come along but certainly not a principal.

MR JUSTICE DAVIS: At what level?

[40]MR TURNER: A paralegal.

MR JUSTICE DAVIS: What is his charging out rate?

[42]MR TURNER: There is no specific charge per hour for him particularly that he knowns of.

MR JUSTICE DAVIS: So 175 would be --

[44]MR TURNER: It is certainly not 175.

MR JUSTICE DAVIS: Perhaps that might have been mentioned to me before.

[46]MR TURNER: Well, I apologise. I have not had an opportunity to properly go through this. It may well be that there should be some adjustment in relation to it.[47]MR MORLEY: My Lord, I do not quibble at all with counsel's fees on page 2 of the statement of costs.[48]MR JUSTICE DAVIS: It is less than yours. You could not then, could you? All right.[49]MR MORLEY: What I do say in principle and in the round is this: that my learned friend has technically succeeded in the appeal but not necessarily in full because the position, of course, is that we are going back to the Magistrates for them to have a look at costs from either of the two dates that your Lordship has indicated. The application and my learned friend's intention, of course, was to succeed in getting an award of costs in the full amount of £4,500, whatever it was, and clearly that is not going to happen and it could well be the case that the Justices --[50]MR JUSTICE DAVIS: Well, it could happen because it may be said that the vast majority of the preparatory work took place after that hearing in December. One just does not know.[51]MR MORLEY: Well, I think your Lordship is right. The answer is we do not know but it seems very unlikely that all of the work would have been done --[52]MR JUSTICE DAVIS: If you could show me some letter from you which takes this point I would be more impressed by it.[53]MR MORLEY: I do not have anything.[54]MR JUSTICE DAVIS: You have no letter? Very well. You are both happy for me to summarily assess these costs, are you?[55]MR MORLEY: I am, my Lord, yes.

MR JUSTICE DAVIS: Anything else you wish to add?

[57]Well, although I have been required in the light of my reasoning to remit this case to the Justices, unless of course the parties come to an agreement in the meantime, the fact is that the appellant has in substance succeeded in this case and I proceed accordingly. I think in principle she should have the costs of this particular appeal. The only question is in what amount. I have considered the schedule of costs involved. I do think, in particular, that the number of hours allowed for attendance, travel and waiting is too much. Further, as Mr Turner fairly accepts, the time charged as shown in the schedule is too much because in the event a principal in his instructing firm has not attended but a paralegal at a much lower rate. I also have to bear in mind considerations of proportionality. Having regard to what is at stake, I assess the costs to be paid within 28 days by the respondent to the claimant and including VAT in the sum of £3,400.[58]Just talking generally, Mr Morley, this case might be a good lesson for people to bear in mind for the future. Least of all, I am the last -- murder inquiries no doubt have their priorities but I think one does have to look and see what has happened and it is perhaps a great shame the legal department was not involved a little earlier that it was.[59]MR MORLEY: I know that the force solicitor has spoken to the officer in the case.[60]MR JUSTICE DAVIS: It is not intended to be a criticism of the officer but it hopefully may be a lesson for the future for the force.[61]Thank you both very much indeed.

Cited in 2 later judgments