Boyle, R (on the application of) v Haverhill Pub Watch & Ors [2009] EWHC 2441 (Admin)

Case No CO/7097/2008[2009] EWHC 2441 (Admin)Date 8 th October 2009
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Before
HIS HONOUR JUDGE MACKIE QCSitting as a Judge of the High Court
B E T W E E N :
Between
THE QUEENClaimant(on the application of FRANCIS BOYLE)ClaimantHAVERHILL PUB WATCHDefendantTHE CHIEF CONSTABLE OF SUFFOLK CONSTABULARYInterested PartyJD WETHERSPOON PLCInterested Party
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Thomas Cross (instructed by Nicholas Wray Solicitors) appeared for ClaimantMr Gordon Mussett appeared in person for DefendantMs Charlotte Ventham (instructed by Suffolk Constabulary) appeared for First Interested PartyMr Stephen Walsh QC and Ms Rachel Kapila (instructed by Kingsley Napley) appeared for Second Interested Party
Judgment
[1]This is an application to challenge by judicial review a decision taken by the Haverhill Pub Watch Scheme to extend by two years a ban imposed preventing the Claimant Mr Boyle from entering any of the pubs taking part in the Scheme. It raises the question of the amenability to judicial review of one of the many Pub Watch schemes operating in different ways throughout the country. Three issues arise:-(a) Is the entity known as “Haverhill Pub Watch” an unincorporated association which has the capacity to be a Defendant to judicial review proceedings? (“the capacity issue”).(b) Is Haverhill Pub Watch amenable to judicial review and/or does it exercise “functions of a public nature” within Section 6(3)(b) of the Human Rights Act 1998? (“the reviewability issue”).(c) Did Haverhill Pub Watch deny the Claimant the right to a fair hearing, fail to take into account relevant considerations, misdirect itself as to its policy, fail to give adequate reasons and/or infringe the rule against “appearance bias”?[2]Permission to apply for judicial review was refused on the papers by Mr Justice Mitting but granted on renewal by Mr Justice Simon on 26 January 2009.[3]The Defendant (“Pub Watch”) is represented in person by Mr Gordon Mussettt who was until recently the Chairman of the scheme. Mr Mussettt is also Town Clerk for Haverhill but chaired Pub Watch in his capacity as chair of the Arts Centre. Understandably most of the argument against the application is that put forward by the two represented interested parties. The first interested party (“The Chief Constable”) addresses only the reviewability issue. The second interested party (“Wetherspoon”), which is a well known company operating over seven hundred pubs throughout the country, addresses the capacity and reviewability issues. The application was unfortunately listed for only four hours and Mr Cross, who did not waste words, only finished his opening on behalf of Mr Boyle at the end of the first day.

The Evidence

[4]In addition to two bundles of documents there is a variety of witness statements. The Claimant relied on statements from himself, his solicitor Mr Wray and Mr Lamb, a former licensee of The Black Horse pub in Haverhill. The Chief Constable relied on statements from Ms Townsend, a civilian Community Watch Liaison Officer, from Inspector Andrew Mason and from PCSO Melissa Galyean. Wetherspoon relies on statements from Ms Frost and Ms Gibson formerly Manager and Supervisor of the Drabbet Smock Pub, from Mr Geoghegan, Operations Director of Wetherspoon, and from Mr Stephen Baker the Chairperson of National Pub Watch. Mr Geoghegan’s statement contains a helpful summary of the origins and operation of Pub Watch schemes throughout the country. From this material the position appears to be as follows.

The Facts

[5]I start with the facts that are agreed or seriously in dispute. I will when dealing with the witness evidence develop some of these points further as the Claimant contends that in reality the position of Pub Watch differs from the picture presented by the other parties.[6]The responsible operators of licensed premises in an area have always shared information and discussed matters of common interest particularly questions of safety and compliance with the law. These relationships have in recent years developed and become known as “Pub Watch schemes” similar to neighbourhood watch schemes. One aspect of this is the sharing of information about actual or potential troublemakers and individual or collective decisions to refuse entry to particular individuals. The evidence contains details of other benefits from exchange of information through these schemes, many not relevant to the issues I have to decide. It is clear from the evidence of Mr Geoghegan and of Mr Baker that the organisation and sophistication of Pub Watch schemes varies greatly from area to area. So it is important not to generalise and to concentrate on the particular scheme which is the subject of this application.[7]There are currently, according to Mr Mussettt, some 22 licensed premises in and around Haverhill which participate in the Pub Watch Scheme. There are 16 pubs, the Arts Centre owned by the Town Council plus sports and ex-servicemen’s clubs. Haverhill Pub Watch has a record of a written constitution, to which I refer below but, if this was ever implemented, it is dormant now. Pub Watch has no bank account or finances. There is no fee or subscription for members. Identity of the membership is vague in the sense that correspondence is sent to particular pubs, not to their licensees or owners. Membership of the Scheme is a condition of the licence of just over half the premises in Haverhill. For example there is no such condition for the Drabbet Smock. A typical licensing condition provides “the premises will liaise and co-operate with the police and participate in any pub watch or other equivalent scheme”. While it seems that licensees are happy to accept this sort of condition this is no doubt as a result of prior encouragement.[8]Licences are granted not by Haverhill Town Council but by St Edmundsbury Borough Council. Attendance at Pub Watch meetings is voluntary and it is a matter of individual choice whether a particular pub enforces a banning decision. Typical attendance at meetings is nine or ten from the pubs and clubs. Meetings are minuted and occur every two or three months. So these threads come together, for example, in a document in February 2008 when Mr Mussettt seeks the Town Council’s support for a review by the Borough Council of the Licensing Conditions for The Bull the management of which was apparently refusing to enforce a ban on some individuals.[9]The Claimant’s solicitors obtained a copy of a document described as the “currentconstitution” as at 13 September 2007. That constitution provides as follows:- “HAVERHILL PUB WATCH Membership is all licensed premises in the District of Haverhill plus other licensed premises considered to be within the Haverhill urban complex. Each of the premises has one vote. A Chairman shall be elected. Meetings will be held at agreed intervals to be decided locally. An agenda will be published and a copy sent to each member at least one week before the meeting. All members must agree to abide by the decisions made at the meetings. Consistent failure to abide by the decisions may lead to expulsion from the watch. Where a customer assaults a publican, a member of staff or another customer, or commits damage or has threatened staff or customers, the publican can call for an emergency meeting of the banning sub-committee to discuss a Pub Watch ban on that customer. The Chairman on receipt of such a request shall initiate the procedures. If a regular meeting is due within a short period the matter can be listed for that meeting. In an emergency the Members acting as a sub-committee may impose a ban on a person, which will be notified to the next meeting. Any officer may call an emergency banning sub-committee meeting after an assault or other incident involving a member, which may result in the banning of a customer. Membership should not be restricted solely to Pubs and may include any other premises with an involvement with watch related activities eg taxi companies”.[10]I do not doubt that this document is dormant as that is the evidence of Mr Mussett and there is no sign of anyone else being aware of it. I set it out as the Claimant relies on the fact that it exists.

Role of the Police

[11]The Police encourage and support the setting up and operation of Pub Watches as they do other schemes relating, for example to shops, farms and the neighbourhood. The Constabulary has written Policies and Procedures on Pub Watch, the current edition apparently prepared in December 2005 begins as follows:- “The fundamental principle of Pub Watch is for it to be owned by its members. Past experience, however, has shown that regular police involvement in an advisory capacity is essential, as without it previous schemes have little to offer their members and in consequence they have become less active … This Policy has been prepared as a reference document to Police Officers to develop and manage a Pub Watch scheme and to enable consistency throughout the Force Area.”[12]The aim is for Pub Watch to become self administering but for the police to continue to provide support including the arrangement of meetings, provision of proforma letters, informing people of banning decisions, the delivery of letters, the provision of photographs of banned individuals where these are available and so on. The Policies and Procedures envisage a launch meeting for new schemes, not at a police station and for the police sector commander to remain a member of Pub Watch.[13]For the last four years Ms Townsend has provided support for all types of watch schemes. As regards Pub Watch she attends meetings when she can and takes minutes, processes banning letters, updates lists, arranges for photographs and sends material to members.[14]The Claimant alleges that the role of the Police is somewhat greater than that and cites pressure being placed on premises to join and also warnings from officers to licensees that non members of Pub Watch could expect a slower Police response than others.[15]The Police actively market and encourage Pub Watch. The Police have offered to pay the first year’s subscription for existing members of Pub Watches across the force area to a web-based communication facility organised by Pub Watch Online. The Police believe that by paying the first years subscription they will save further expense down the line. The Police provide information. There is an illustration of how things work in the document “Haverhill Pub Watch process” at page 87 of the Claimant’s bundle. Members receive a Welcome Pack with promotional material, and are required to sign an agreement with the Constabulary and a data protection form. At page 89 of these notes under “PLEASE REMEMBER” appears “ANY BAN IS A BAN BY THE PUB WATCH SCHEME MEMBERS – NOT A POLICE BAN”. Any appeals about bans should be put in writing to the Chair and they will be considered by the Pub Watch members at the next full meeting”. Role of the Local Authority.[16]The role of the local authority appears to be limited to sending a representative to provide encouragement and advice to meetings. Although meetings are chaired by Mr Mussettt who is the Town Clerk he performed this role in his capacity as the licensee of the Haverhill Arts Centre and has, it seems, no more influence than any other scheme participant.[17]The Borough Council has the licensing function and actively supports Pub Watch schemes as one sees from the following text sent to new licensees. “As the Licensing Authority, St Edmundsbury Borough Council is very supportive of the local PUB WATCH schemes and are pleased to work in partnership with yourselves and the POLICE to promote responsible retailing and consumption of alcohol together with reducing crime and disorder relating to alcohol. We are writing to you to remind you that your licence has a condition stating that you WILL be a member of the local PUB WATCH scheme. This entails attending meetings, upholding the bans decided by the group and promoting the ethos behind the scheme around community safety issues. It is YOUR responsibility to ensure that your premises are represented at meetings and that your staff are fully aware of the banned persons and take positive action if they should enter your premises.”

Witness evidence

[18]As the Claimant contends that the written material should not always be taken at face value I will set out some of the witness evidence in more detail. Reliance on some of the evidence advances the issues little. For example written remarks by junior police officers about Pub Watch Schemes when addressing a wider context cast little light on the role really played by the police in Pub Watch operations. Thus PC Spraggons, the Community Police Officer for Clare says in his annual report after references to neighbourhood and to farm watch “although we do not suffer a great problem with public order in Clare I am looking to initiate some sort of Pub Watch to work towards decreasing even further, the occurrences of public order and drug use in the town”. It is unrealistic to see this as some evidence of greater police influence behind the scenes.[19]Mr Boyle exhibits a bundle of relevant material and then sets out his recollections of the events in December 2006 at The Black Horse which gave rise to the ban which is the subject of this action. He claims that he was banned by Pub Watch as a result of the police putting forward his name to the meeting. He claims that despite being the victim not the aggressor, he was subjected to a ban. He says that the ban devastated his work, because he needs to socialise to pick up leads as well as social and family life. In February 2008 the ban was extended for a further two years because of what was said to be persistent breaches of the existing ban. He complains that his appeal against this decision made through his solicitor on 19 February 2008 was rejected without reasons on 13 April.[20]Mr Boyle points to the role of the Police as set out in the minutes and other documents. He also complains that the Police visit new premises to advise licensees to join the scheme and that pub staff are told that if they do not join the Police cannot guarantee prompt attendance at incidents. Mr Boyle believes that his treatment is due in part to his opposition to the policies of Mr Mussettt as town clerk. In essence he says that Haverhill Pub Watch “is not just the Licensees meeting together for mutual information, support and organisation. It is run by and for the Police and the Local Authority using their procedures, information and expertise to enforce their Policies”.[21]Mr Wray, the Claimant’s solicitor gives evidence that in January 2009 he and a colleague stopped for lunch at The Crown in Long Melford. He says that he overheard a Suffolk Police Officer present the licensee with a Pub Watch agreement to sign claiming that he was required to sign it. The licensee was told that if he did not sign people banned from other premises might start drinking at his hotel and he could not expect prompt attendance from the police to incidents. In response PCSO Galyean produced a witness statement dealing with what happened at the Crown. She had given the man she thought to be the landlord a Pub Watch pack on the previous Sunday but he had been too busy to discuss it. She returned on Wednesday when Mr Barnes was still apparently very busy but he did not want to be part of this. PCSO Galyean accepts that she said that a consequence of The Crown not participating might be that the licensee might have banned persons in his pub but denies the other observations attributed to her by Mr Wray.[22]This incident occurred in Long Melford, outside the range of the Pub Watch scheme . It appears to illustrate a publican exercising his right not to join Pub Watch. In the absence of live evidence I cannot evaluate the witnesses with confidence but in the ordinary way I would prefer the documented recollection of a PCSO to the impromptu eavesdropping of a solicitor of an isolated exchange.[23]Mr Lamb was licensee of the Black Horse in Haverhill until 1 April 2007 when he had to give up through ill health. He describes a commotion in the gents and when he went in he found a Mr Sullivan attacking Mr Boyle. “It was quite clear that Frank Boyle had no responsibility for the incident”. As he was not present at the outset it is unclear how he can reliably exonerate the Claimant.[24]Mr Mussettt did not produce a witness statement but he prepared a very helpful skeleton argument and his oral submissions were measured, concise and relevant. Mr Mussettt attended the hearings at his own expense because Pub Watch has no funds. Between the two hearings he resigned as chair of Pub Watch because his wife believes he has taken on too much voluntary activity. Mr Mussettt recalls that there has been some scheme of co-operation between Haverhill licensees for at least 30 years but no one now recalls what happened at the outset. Pub Watch (like the scheme which was the subject of the permission decision in Proud) seeks to operate under National Pub Watch guidelines. As regards the renewal of the ban Mr Mussettt produces material from a police officer, members of the public and other Pub Watch members. Mr Mussettt refers to activities such as lectures on the Licensing Act, co-ordination of holiday closures and small business advice as examples of other aspects of what Pub Watch does. He suggests that the minutes show that much of the work of Pub Watch is business related and goes beyond the banning function. As Mr Mussettt sees it the police have their own operational reasons for supporting Pub Watch. The interests of the police and of licensees are not always identical. Thus Suffolk Police wish to pay for first year membership of Pub Watch on-line, a computerised information system, for licensees in order to reduce their own administration costs. But as at December 2008 only ten Pub Watch members had taken this up preferring more traditional communication methods. He chaired Pub Watch in a personal capacity his predecessor being the chairman of the local Angling Society.[25]Inspector Andrew Mason, responsible for Haverhill Neighbourhood disputes a broad claim by Mr Boyle that the police had put pressure on the managers of premises in a Cineworld complex to join Pub Watch. He suggested that Ms Townsend see if the licensed premises in the complex might like to join Pub Watch as part of the solution to dealing with low level disorder that had been experienced. Neither of the premises, “Frankie and Bennys” or “Prezzo” took up the invitation as they did not see themselves as the type of premises that would fit. Inspector Mason made enquiries of the Borough Council who informed him that there was no standard condition that a licensee has to be part of Pub Watch. That condition is not imposed by the licensing authority at the suggestion of the police.[26]The effect of Inspector Mason’s evidence and that of Ms Townsend is that it seems clear that Mr Boyle is mistaken about the Cineworld complex.[27]I referred earlier to the work of Ms Townsend the Community Watch and Safer Neighbourhood Team Liaison Officer. She is a civilian member of police staff who works part time. In addition to describing her duties she says that she was not at the meeting that discussed the original banning of Mr Boyle but, having been informed of it, she processed the standard letter dated 13 February 2007. She attended Pub Watch on 10 April 2008 when Mr Boyle’s appeal was discussed. The matter was decided by an “anonymous ballot”. One police officer was also present but he did not vote. Mr Cross suggests that there is significance in Ms Townsends’ absence of comment about her participation in these discussions. I disagree.[28]Ms Townsend served a second witness statement to address a document “Haverhill Pub Watch process” which I quoted earlier. This document contains guidance assembled by those involved in the scheme, including Ms Townsend, but in practice may give a misleading impression of some aspects of the police role. Thus while she sends a reminder to members a day before the meeting the chair normally writes himself two weeks before. She checks the list of banned persons and highlights those with upcoming review dates but does not check the police database for new incidents unless specific matters have been brought to her attention. The chair prepares the agenda and may ask her if she has administrative issues to raise. She does not monitor attendance or otherwise contact licensees who fail to participate. As the banning letters show they are pursued by and on behalf of Pub Watch, not the police. A member of the police team hand delivers banning letters not necessarily face to face but through the letterbox.[29]Ms Jeanette Frost is the manager of the Drabbet Smock and, amongst other things, says the following about the operation of the Pub Watch scheme. It is not contradicted and seems to me to paint a clear picture of the position which is why I quote it at a little length; “The Haverhill Pub Watch Scheme (‘Pub Watch’) was already operating when I was appointed as manager of the Drabbet in 2007. I do not know whether the impetus for setting up Pub Watch came from the police or whether it was established jointly with participants from the licensed trade. Representatives from the Drabbet have participated in Pub Watch for many years and certainly for some time before I was appointed as manager. I know this because I can remember Craig Nicolls attending Pub Watch meetings during his time as the manager. I have never been provided with a copy of any rules, constitution or terms and conditions of participation in Pub Watch. I don’t even know if any such a document exists. The only document that I have seen containing information about how Pub Watch operates is a leaflet that was located in a file in our office. I assume that it was placed in that file by Craig Nicolls. I produce a copy of that leaflet as exhibit JF/1. I have never been asked to pay fees to participate in Pub Watch. I have always thought that participation was free and voluntary. I don’t know who are the other participants of Pub Watch but I have always assumed that it is the other pubs in Haverhill. I have never been provided with a list of the other participants of Pub Watch. I am notified of upcoming Pub Watch meetings by letter. The letter is addressed to the pub. We do not receive any separate email notifications or reminders of upcoming meetings. I always try to ensure that a representative of the Drabbet attends Pub Watch meetings. If I can’t attend then I would arrange for another member of the management team to attend. I would never send a junior member of staff to a meeting as I think that it is necessary to have someone with sufficient maturity and experience to represent the Drabbet at Pub Watch meetings. On a few occasions the Drabbet has not been represented at Pub Watch meetings. This is largely because I have received late notification of the upcoming meeting and I have not been able to arrange for someone to attend the meeting at short notice. Even on those occasions that we have failed to attend a meeting we have still been provided with a copy of the minutes from that meeting. During my time as manager I have personally attended only three or four meetings. In the past meetings were often held at a time when it was not convenient for me to attend. When I was unable to attend I would always delegate this task to another member of my management team. During the period 2007 to 2008 I frequently delegated this task to the deputy manager Heather Gibson…. Pub Watch meetings are usually held every three to four months. The other pubs that are regularly represented at the meetings are; The Bell, The Bull, The Wool Pack, The White Hart, The Queen’s Head, The Rose Tavern and the Rose & Crown and the Days Inn Hotel. It is normal for around eight to ten people to attend these meetings. Those attending meetings are asked to sign a record of their attendance. There is no roll-call at the start of a meeting. I do not know whether anyone actively monitors attendance in Pub Watch. There are a number of pubs that regularly fail to send a representative to meetings. On the occasions that we have failed to attend we have never been warned that any action would be taken. I am not aware of the other pub managers being threatened by the authorities because of their non-attendance. Meetings are generally held at the Town Hall but on occasion they are held at a pub. I have never volunteered to host a meeting at the Drabbet as they are usually held in the morning and we are too busy during this period to close the pub now for a meeting. Gordon Mussettt of the Haverhill Arts Centre is the Chairman of Pub Watch. His role involves ‘chairing’ the meetings, sending the minutes after the meetings and preparing the agenda. I was not involved in Pub Watch when Gordon was elected to this position so I don’t now the circumstances of how he came to perform that role. Gordon seems to do a good job and I don’t personally consider there is any need for someone else to take over the role. If I wanted to raise something to be discussed at a meeting I would have no hesitation in approaching Gordon and asking him to include this on the agenda. The police always have officers attending Pub Watch meetings. In my experience the police use the meetings to inform participants about the problems that they are dealing with in the town centre or to update them on new information that may be relevant to their business. For example, at the meeting I attended on 10 December 2008 PC Wright and PCSO talked about three issues. Firstly, they said that they had received complaints from members of the public about a group of youths hanging around the new cinema complex and they warned participants that they should be on the ‘look-out’ for any of these youths as they may attempt to enter licensed premises. Secondly, they reminded us to be aware of the need to take care checking proof of age identification. Finally, they congratulated the participants because the police had recently conducted a test-purchase campaign which all of the pubs in Haverhill had passed. I enclose a copy of the minutes from that meeting at exhibit JF/2. From the meetings that I have attended I gained the impression that the discussions were led by Gordon Mussettt and the other participants from the licensed trade and that the police were merely there to give advice and support when that advice was sought. The police did not appear to me to take a particularly active role in the meetings. I am not aware of any active involvement in Pub Watch by St Edmundsbury Borough Council. I don’t know if a representative of the local authority attends the meetings. I have never been visited by police and had pressure applied to participate in Pub Watch. I believe that the police approach new pub managers to encourage them to join Pub Watch but they do not apply pressure if they do not wish to become involved. I have never had pressure applied from the police to apply for variation of our premises licence to include a condition which would make our participation in Pub Watch mandatory”.[30]Ms Heather Gibson formerly the deputy manager of the Drabbet Smock gives similar evidence. She recollects that while the police always attended Pub Watch meetings they did not participate in decisions about whether to ban individuals.[31]Mr Martin Geoghegan is Operations Director of Wetherspoon. He describes the variety of local Pub Watch schemes and encourages his pub members to support and participate. He refers to local schemes varying in sophistication but very rarely receiving any funding. The common approach is for the police and the local authority to work in co-operation with participants from the licensed trade but he mentions some schemes where the police involvement is greater. He commends the organisation National Pub Watch as being an important source of “best practice”.[32]Mr Stephen Baker is chairperson of National Pub Watch which has a committee of individuals from various professional backgrounds. National Pub Watch was established in 1997 to meet a demand from local schemes where information could be collated and disseminated and to assist individuals who want to start new schemes. He emphasises that the Good Practice Guide of National Pub Watch encourages the involvement of the police and other relevant statutory bodies but urges that their role should not exceed that of a support and advisory one. National Pub Watch considers that participation is a voluntary activity but he urges that membership should be acknowledged by the police and local authorities as a demonstration of good management.

The capacity issue

[33]Does Pub Watch take a sufficiently coherent form to be capable of being sued as a Defendant to judicial review proceedings? The Claimant says the Defendant does take this form either because it is an unincorporated association or, even if it is not, because it is at least a single cohesive entity and it would be unjust for it to be beyond review if it is held to have exercised a public function.[34]Mr Cross, for the Claimant says that the Defendant is an unincorporated association as Mitting J recognised when refusing permission. It is uncontroversial that an unincorporated association may be amenable to judicial review, where it would otherwise be “without legal personality” (R v Panel on Take-overs and Mergers, ex parte Datafin Plc [1987] QB 815 (“Datafin”) per Sir John Donaldson MR at 824H; R (on the application of Oyeyi-Effiong and Campbell) v The Bridge NDC Seven Sisters [2005] EWHC 901 (Admin)).[35]A test for what constitutes such an association, albeit in the different context of corporation tax, was expressed in Conservative and Unionist Central Office v Burrell (Inspector of Taxes) [1982] 1 WLR 522 as follows: “… two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and upon what terms and which can be joined or left at will” (at 525).[36]Mr Cross says that if this test is applied the Defendant passes. It has a constitution, a membership that is fixed at any one time, members can join and leave, it operates for a common purpose to exercise a banning function in pursuit of a common business venture, membership is subject to terms, a chairman supervises affairs and the entity has access to funds even if it does not control these directly. If the Defendant is not an unincorporated association it is still identifiable as a single entity with a logo and a fixed address to and from which correspondence is sent.[37]Mr Walsh QC for Wetherspoon accepts the relevance of the cases cited by Mr Cross. He points out however that unincorporated associations are, as Burrellitself makes clear “creatures of contract” requiring a constitution or set of rules. These agreements must be reasonably certain “because they may become justiciable” (Burrell, per Lawton LJ at p527). He also relies upon the observations of Mitting J when refusing permission:- “As far as I can tell from the… details about the origin, make up and role of “Haverhill Pub Watch” it appears to be an unincorporated association of licensees of public houses in Haverhill. As such, it is not a legal person and cannot be sued: Chitty at paragraph 9-068.[38]Mr Walsh also relies upon the decision of Mr Ockelton, sitting as a Deputy High Court Judge when refusing a renewed application for permission to apply for judicial review in Proud v “Buckingham Pub Watch Scheme” [2008] EWHC 2224 (Admin). At paragraph 11 of his judgment Mr Ockelton said this: “the question of the identification of the proper defendant to these proceedings goes to giving the same answer. Without wanting to reach a concluded view on whether Buckingham Pub Watch is a person for the purposes of Section 6 of the Human Rights Act 1998, it seems to me in the highest degree unlikely that an entity which has, and this is according to the evidence of Mr Diston, no constitution, no finances, no fixed membership, no rules and whose decisions are binding on its members only to the extent that they treat them as binding, on which again there are no rules – that an entity of that sort can be amenable to judicial review or can be a person exercising public functions under Section 6 of the Human Rights Act. Not only is there no evidence of a collective responsibility imposed on licensees, but there is, in truth, no collective capable of being described as a decision-making body, whatever the appearance may be in terms of the documents that emanate from individuals acting apparently on behalf of the Scheme”.[39]Of course those observations in a permission application are not binding upon the Court in this case and relate to a Pub Watch Scheme which may have had differences from Haverhill Pub Watch. However they are very relevant as are the following observations made by

Lord Justice Buxton when refusing permission to appeal from the decision of Mr Ockleton:

“I will assume that decisions of the Pub Watch committee are in practice regarded as binding by licensees, though in law the decision to exclude a person from a particular pub remains in the hands of the licensee of that pub. However, even with that concession, it is impossible to regard the Pub Watch scheme as a public body or as involving a public function either in Convention or in specifically domestic law. The care homes in YL were, on the basis formulated by Lord Scott and set out by the judge, held not to be public bodies, even though a large part of their activities concerned the provision of services to the public on behalf of statutory undertakers. Here, the scheme not only is limited to commercial bodies, but also is designed to make the commercial activities of those bodies easier to perform. In this, the licensees do not act on behalf of the police. Although the police no doubt welcome the existence of the scheme (as would the great majority of pub users) it is clear that their role is limited to assisting the licensees, and not vice versa. The jurisdiction issue suffices to make this application unarguable, but I am also very doubtful as to whether there is in any event any identifiable defendant to be impleaded. While only a very loose structure is required to constitute an unincorporated association, I doubt whether Pub Watch passes even that undemanding test. It would be no service to Mr Proud to permit these proceedings to be pursued further ….”
. Sir Richard refused permission “as being totally without merit” thereby precluding the Appellant from seeking reconsideration in the usual way at a hearing.[40]Mr Walsh submits that in the absence of identifiable rules and a membership Pub Watch does not amount to an unincorporated association. Its structure is too loose to be regarded as a body which is capable of being amenable to judicial review or as a “person” for the purposes of Section 6(3)(b) of the Human Rights Act.[41]Mr Cross replies that it is common ground that an unincorporated association may be subject to judicial review proceedings but the test for this is very loose. He gives as an example this extract from the judgment of Hughes LJ in R v RL and JF[2008]EWCA Crim 1970, 1 All ER 786 in which an unincorporated association, a golf club, was held to be capable of being prosecuted for a criminal offence:- “There are probably almost as many different types of unincorporated association as there are forms of human activity. This particular one was a club with 900 odd members, substantial land, buildings and other assets, and it had no doubt stood as an entity in every sense except the legal for many years. But the legal description “unincorporated association” applies equally to any collection of individuals linked by agreement into a group. Some may be sold and permanent; others may be fleeting, and/or without assets. A village football team, with no constitution and a casual fluctuating membership, meeting on a Saturday morning on a rented pitch, is an unincorporated association, but so are a number of learned societies with large fixed assets and detailed constitutional structures …”. Mr Walsh submits that this passage has to be seen in context, is obiter and goes further than other encapsulations of the law in this area.[42]Mr Cross also cites examples of unincorporated associations which possess no funds, assets or coherent structures being held to be parties particularly where a non pecuniary remedy is sought. He cites decisions of Teare J and Swift J in two protestors cases entitled RWE Npower Plc (and others) v Rev Malcolm Carrol (acting for and on behalf of the unincorporated association identified as “The Sandles House Group” and all other persons acting in concert with the Defendants to deter, obstruct or prevent the First Claimant’s intended use of Sandles House and Radley Lakes by harassment, trespass and any other unlawful means (and others) [2007] EWHC 947 (QB) and Heathrow Airport Ltd (for and on behalf of itself, the contractors, sub-contractors, suppliers and service providers and the lessees, licensees and concessionaries) (and one other) v Joss Garman and 6 others [2007] EWHC 1957 (QB). He submits that an unincorporated association can be sued in its own name if there is a natural person to represent it and that Mr Mussettt has throughout acted on behalf of Haverhill Pub Watch. If necessary the proceedings can be amended to change the Defendant’s name to bring in Mr Mussettt or indeed he can be sued as a representative defendant. Mr Cross rejects an argument that as members of the scheme are not themselves legal persons no order could be enforced against them. He argues that if members join the scheme to further a commercial interest the decision must be made by the relevant legal person. Similarly the fact that those who attend banning committee meetings are informally described as pubs not legal persons does not remove the reality of attendance being duly authorised by a legal person. Mr Cross submits that a quashing order would be straightforward to implement. Mr Mussettt would be obliged to remove Mr Boyle’s name from the banned list. As no person could properly refuse Mr Boyle entry in reliance on a ban which had been lifted it would not be difficult to identify the legal persons behind any premises that did.[43]As I consider, more than the parties, that the questions of capacity and reviewability overlap I will give my decision on this point when dealing with the second issue. The reviewability issue.[44]Mr Walsh submits that the court should adopt the principles set out by Mr Ockelton in Proud. The starting point is that pubs are private premises whose occupiers are entitled to decide whom they will or will not admit provided that there is no unlawful discrimination. The provision of advice and support by the Police does not have the effect of converting these individual decisions into those of a public nature. It is accepted that there may be cases where the involvement of the Police (or other public bodies) is so extensive that the process of decision-making is pushed over the line from private to public. Mr Walsh submits that the looseness of the structure of Pub Watch and the absence of formal rules obscures analysis of the limited degree of public involvement in the scheme. However the police provide only administrative and logistical support once a scheme is set up. They attend meetings at the invitation of licensees and neither propose nor vote on bans. Membership of Pub Watch is not a condition imposed by the licensing authority as a matter of course. There is evidence that where such a condition is imposed it is at the suggestion of the Applicant. The council has no involvement beyond sending a representative to provide encouragement and advice. The town clerk was only involved because of his role with the Haverhill Arts Centre. Pub Watch does not receive public funding apart from the offer, received without great enthusiasm by the police to pay the first year’s subscription to Pub Watch Online. Wetherspoon accept that the position on this issue may be different in some other Pub Watch schemes particularly those in which membership is not truly voluntary or where the police are very active in requesting or even issuing banning orders. Mr Walsh submits however that that is not this case.[45]Ms Ventham, on behalf of the Chief Constable, submits that the Police encourage and support the operation of Pub Watch in the same way as they do many other similar schemes. As the documents show once a new scheme is set up the aim of the Police is for it to become self administering as soon as appropriate. The limited role of the Police is set out in the documents and the evidence. The Police actively market Pub Watch in the public interest but do not exert pressure or unfair influence on licensees to join. The police encourage licensees to join Pub Watch Online because it is a useful facility and, if taken up properly, will significantly save police resources.[46]In this case the Police went to the Black Horse public house in December 2006 and decided simply to take no action because there was not sufficient evidence to enable them to do so. The Police played no part in proposing the ban on the Claimant but collated, at the Defendant’s request the details which it had of the 16 December incident. Ms Ventham too adopts the reasoning of Mr Ockelton in his permission decision in Proud. These are individual decisions by licensees either to exclude an individual for their own reasons or because other licensees have done so. The police play no part in the imposition, extension or enforcement of the ban. She contrasts the exercise of a right in respect of private premises in this case with reported cases where the nature of the function has been held to be a public one such as R (Beer) v Hampshire Farmers’ Market Ltd [2003] EWCA Civ 1056 [2004] 1 WLR 233.

Decision of the Court

[47]The capacity issue seems to me to be something of a distraction because the Courts will almost always find a way of bringing an entity into proceedings if it is just and practicable to do so. As the protester cases make clear (particularly in the judgment of Mr Justice Irwin from paragraph 42 onwards in Oxford University v Webb[2006]EWHC 2490) there are numerous varieties of unincorporated associations. An unincorporated association has no legal personality and so cannot be a party to a claim. It can therefore only be sued if there is a person who can represent the association as a Defendant. By an application for a representative action under CPR 19.6 a broad class of individuals may be brought into the proceedings, to take an example “on behalf of all persons belonging to or associated or affiliated with …” subject to the protection of individuals provided by the Rule. There has been no application for an order under CPR 19.6 in this action. Such an order would be made if and when the court considered that it was just to do so. That would involve some evaluation of the underlying claim and of course the requirements of justice. Another option for the Claimant would be to sue as Defendants the corporate or individual owners of the pubs which belong to the scheme and operate any bans. Of course that might undermine from the start the Claimant’s case to have suffered from the exercise of a public function but it would of course be a viable option in another case if, for example, it had been alleged that the pubs had operated some illegal price scheme. While the fact that invitations to meetings are sent to, for example “the Crown” and not its owner may be relevant to an appraisal of the allegedly informal nature of the organisation, that factor would not of course prevent the owners from having to take legal responsibility for its acts and omissions. The court invariably fashions ways of joining Defendants and other parties where the needs of justice require this. If Mr Boyle’s rights were apparently being infringed by Pub Watch and/or its members then problems of classification of the potential Defendants would not be permitted to stand in his way. But that raises the question of the underlying merits of the claim.[48]The starting point for an evaluation of whether a decision is amenable to judicial review is the decision of the Court of Appeal in R (Beer) v Hampshire Farmers’ Market Ltd and in particular the judgment of Dyson LJ who at paragraph 16 says this: “It seems to me that the law has now been developed to the point where, unless the source of power clearly provides an answer, the question whether the decision of a body is amenable to judicial review requires a careful consideration of the nature of the power and function that has been exercised to see whether the decision has a sufficient public element, flavour or character to bring it within the purview of public law. It may be said with some justification that this criterion for amenability is very broad, not to say question-begging. But it provides the framework for the investigation that has to be conducted. There is a growing body of case law in which the question of amenability to judicial review has been considered. From these cases it is possible to identify a number of features which point towards the presence or absence of the requisite public law element …”.[49]The evaluation in that case led to the conclusion the decision was open to judicial review. The farmers markets were held on publicly owned land to which the public had access, the company was set up by the council using statutory powers and it stepped into the council’s shoes performing the same functions as the council had previously performed. From the start the council assisted the company by providing facilities and finance. The company was established to take over on a non profit basis the running of markets previously operated by the council in the exercise of its statutory power in what was considered to be the public interest.[50]That case also has to be seen in the light of the decision of the House of Lords in YL v Birmingham City Council [2007] UKHL 27 [2008] 1 AC 95 in which the majority decided that the Second Defendant company, an independent provider of health and social care services, was not in the circumstances of that case, amenable to judicial review. I have regard to the considerations set out in the whole of that case but two paragraphs in the speeches of the majority have been relied on by Counsel.[51]At paragraph 26 Lord Scott said this:- “My Lords, on both the issues to which I have referred I have reached the same conclusion for much the same reasons as my noble and learned friends, Lord Mance and Lord Neuberger. To express in summary terms my reason for so concluding, Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti-discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors”.[52]At paragraph 144 Lord Neuberger said this:- “The fact that Birmingham, as a core public authority, could have provided care and accommodation for Mrs YL in a care home which it ran itself seems to me to be a factor which assists the contention that Southern Cross is performing a function of a public nature, but only to a limited extent. It is certainly not a sufficient condition: indeed, it appears to me to be more like a necessary condition. While it would be wrong to be didactic in this difficult area, I suspect that it would be a relatively rare case where a company could be performing a “function of a public nature” if it was carrying on an activity which could not be carried out by any core public authority. On the other hand, I would not accept that the mere fact that a core public authority, even where it is the body funding the activity, could carry out the activity concerned must mean that the activity is such a function. Apart from anything else, there must scarcely be an activity which cannot be carried out by some core public authority”.[53]While I have considered all the other authorities drawn to my attention this exercise involves the application of established principles to the facts of this case. The task is not greatly assisted by extrapolating from the facts arising in other first instance decisions.[54]The “careful consideration” of the power and function was carried out thanks to the admirable submissions of all 3 counsel and Mr Mussett and the position is, as I see it quite clear. Individual licensees have an unrestricted right to exclude anyone, particularly those who they see as troublemakers, from their premises. Similarly individual licensees have the right to exclude those whom others have found to be troublemakers. Furthermore licensees are entitled to form groups or associations to pool information and discuss matters of common interest and to make the exclusion of potential troublemakers more organised and systematic. When Pub Watch decides to ban someone the source of the power is the right of the individual members. The exercise of the power is carried out by individual licensees exercising their right to decide who to let in and who to exclude. The only basis for an argument that these banning decisions are amenable to judicial review lies in the degree of involvement of the public authority and the Police. The role of the town council is limited to that of the licensee of the Arts Centre. I accept what Mr Mussettt wrote and said about that, supported as it is by a commonsense review of the document. The borough council has no role other than as the licensing authority and as encourager. The imposition of a requirement upon some of the member premises to become a member of Pub Watch (albeit only to a proportion of the members of the Pub Watch) does not contribute to the conversion of a private function into a public one. These public bodies rightly encourage and support a scheme which is run by the licensees who alone take the decisions of the kind for which Mr Boyle seeks redress.[55]That leaves the role of the Police. It is well known that the Police do, and are expected to, encourage initiatives and involve the community in a variety of ways to discourage and prevent crime. Pub Watch is like Farm Watch and Neighbourhood Watch. The public no longer accept that the involvement of the Police should start only after a crime has been committed. Legitimate schemes run by sections of the public to discourage crime should not have to run the risk of their decisions being subject to the threat of judicial review simply because their work receives assistance and support from the Police or other public agencies. In Haverhill the Police initiate, encourage and provide administrative support to the Pub Watch scheme. The guidance and other documents, when read in a commonsense way as they should be, confirm the evidence of the Police about these matters. I accept that individual officers are not involved in banning decisions and consider it highly unlikely that they would want to be. As the example in this case shows the Police had already decided to take no action over the incident which gave rise to the later ban. For similar reasons it seems to me very unlikely that the Police are involved in coercing unwilling licensees to join Pub Watch. I have already dealt with the individual incidents relied upon but in general it is clear that licensees are free, where their license permits it, to decline to belong to Pub Watch. Even when they do join they are free not to turn up at meetings and also to disregard bans if they wish to do so. It is entirely understandable that the Police should help and encourage membership and participation in Pub Watch just as they would in Neighbourhood Watch and other schemes. Most law abiding pub customers would think it very odd if the Police did not provide this encouragement and support.[56]I therefore conclude that the decision which is the subject of the application in this case has no sufficient public element, flavour or character to bring it within the purview of public law. In reaching these conclusions I am fortified by the fact that they are consistent with the decisions of Mr Ockelton and Buxton LJ in their permission decisions in Proud.[57]I am asked by Counsel for Wetherspoon to make more general observations about Pub Watch schemes throughout the country. I do not consider that it is desirable or possible for me to do that. I would not however expect that the operations of a particular pub watch scheme would be open to judicial review if the role of the Police and other public bodies was limited to that of the advice and support recommended by the Good Practice Guide of National Pub Watch referred to above.

Did the Claimant receive a fair hearing?

[58]In most cases and despite having found against the Claimant on the first two points I would have moved on to consider the third in case I was wrong about the others. Virtually all of the argument however was directed to the first two issues and there was little discussion about the facts of the individual case. Furthermore while I would be in a position to consider whether the appeal opportunities given to Mr Boyle were sufficient, his case appears also to rely upon allegations of bias which I cannot begin to evaluate. I express no view on that issue.

Conclusion

[59]There will therefore be judgment for the Defendant. I shall be grateful if counsel will let me have corrections of the usual kind as soon as convenient and, not less than 48 hours before the handing down of this judgment, a draft order and note of any issues which they seek to raise at that hearing.

Post-Judgment Discussion

JUDGE MACKIE:

[1]This is the handed down judgment which I circulated in draft on 13 August which, for some unknown administrative reason, has taken a while formally to hand down. Who is it who is due but not here?[2]MISS VENTHAM: We know that Mr Mussett and Mr Boyle are not here.

JUDGE MACKIE:

[3]I quite understand that Mr Mussett would not want to come. He had to pay his own train fare. The claimant was represented by Mr Cross and by solicitors.[4]MISS VENTHAM: Yes, he was until - I understand but I am not sure of the exact date - about a couple of weeks ago when he informed the first and second interested parties that he was no longer represented by lawyers at all.

JUDGE MACKIE:

[5]If that is the case we might as well proceed. He will be aware of what was in the judgment because he would have received it in August when it went around. I think we can proceed now.[6]MISS VENTHAM: Subject to your thoughts about any applications for costs, there will be such applications both on behalf of the first and second interested parties.

JUDGE MACKIE:

[7]We will get on with it. If necessary, if I make adverse costs orders they can have liberty to apply. We can have another hearing if I am advised I made the wrong order.[8]I will hand down this judgment in Boyle v Haverhill Pubwatch. If there are not enough copies my clerk will be pleased to e.mail anyone who is interested. Her details are on a slip of paper which the associate will let you have. The short point is that Mr Boyle sought to challenge by judicial review the Operation Pubwatch schemes. His application fails. Shall we get on with matters arising?[9]MISS VENTHAM: I make an application for costs on behalf of the first interested party, the Chief Constable of the Suffolk Constabulary. The defendant itself was not legally represented in these proceedings. Whilst Mr Mussett's presence was invaluable, nevertheless it effectively fell to counsel for both interested parties to argue this case before you.[10]So far as the police are concerned, in my submission, they effectively had no option but to become an active - indeed a key participant - in these proceedings. Given the way the claimant put his case, the police were for all intents and purposes the defendant in this case in my submission. And it was therefore incumbent upon them to attend and defend their position. As it turned out, insofar as the police involvement in the Pubwatch scheme was at the heart of the case, the claimant pursued a claim that was simply unsustainable on the clear and unambiguous facts of the case. The claimant cannot say he did not know the risks of doing so. I say this particularly bearing in mind that there was an earlier High Court decision - I refer to the case of Proud - which, if not binding on this court, certainly presented the claimant with an uphill struggle.[11]In all the circumstances therefore, it is my submission that there is no reason in principle why the police - albeit as an interested party rather than a defendant per se - should not have their costs. I have a schedule for the purposes of a summary assessment which I can hand up now. I should indicate that whilst Mr Foster for the second interested party has seen this, Mr Boyle will not have done. I apologise for the fact that the solicitors' costs are not broken down. Nevertheless they are globally extremely modest given the size of this case. You can see counsel's fees are broken down and the total comes in under £10,000 which, for a case of this size, I submit is modest.[12]Since there is going to be an application for costs by the second interested party also, I appreciate that this raises the issue of the court having to consider making two orders for costs. I will let my friend make his own application on its merits. But I say this in respect of the principle of making more than one order for costs: I am mindful of the general reluctance of the court to do so, not only because separate representation is a situation that should, if at all possible, be avoided but also because of the general desire not to penalise the claimant twice.[13]In this case, as I have submitted, the police effectively had no choice but to become involved in the way they did and to become a key player in this case. Yet the police were only able to deal with what was termed in the course of the proceedings "the reviewability issue". The police were unable to deal with what was called "the capacity issue", that is to say the capacity for Pubwatch to be sued as an entity, since the case put forward by the police was that they were not active participants in the Pubwatch scheme as it has been held by your Lordship in the case. So accordingly the police were in no position to deal with whether the set up and functioning of the entity was such that it was an unincorporated corporation and therefore could be subject to a claim for judicial review.[14]The claimant put his case on both of those grounds and, indeed, another as well. Therefore the court did need to hear a response on both of those key issues; the police could only provide a response on one.

JUDGE MACKIE:

[15]Why could you not do the other one too? You appreciate that the claimant is not here so I need to ask questions on his behalf. Why could you not deal with both points?[16]MISS VENTHAM: Although we could have dealt with the legal position on unincorporated associations, what we could not do - whereas Wetherspoons could - was to deal with the fact of this particular Pubwatch scheme and whether it amounted to an unincorporated association or not. The reason I say the police are not in a position to argue that is because of the very case that it put forward that they were not participants in the scheme; by contrast, Wetherspoons were by virtue of the membership of some of their individual public houses to the particular scheme in question. They were also able to provide voluminous evidence of great assistance to the court about their own involvement via different public houses in other schemes across the country. All of that in my submission fed into the legal analysis of whether this particular pubwatch scheme was an unincorporated association and/or in any event was capable of being sued. It was a matter that the police could only ever have dipped their toes into from a legal perspective but they would not have been able to support the facts from a legal analysis.

JUDGE MACKIE: Thank you.

[18]MR FOSTER: There is an application for costs by the second interested party J D Wetherspoon plc on the basis that this is a case where it is appropriate for there to be two awards of costs, first, because, as is clear, this is a case which was conducted largely by the interested party. A large part of the evidence and submissions against this claim, and on which you relied in judgment, was provided by Wetherspoons playing a key role in response to this claim.[19]Wetherspoons' interest was distinct and different from the chief constables' and required separate representation. It concerned their premises which was served with a claim form by the claimant, him presumably recognising they had an important role to play and concerned the important interest too of the freedom of this licensed premises and licensed premises generally to participate in Pubwatch and exercise discretion over entry without fear of a judicial review challenge to that operation. As a result, it was capable of having had a significant impact on them and will have an impact on them in a positive respect as a result of your judgment.[20]Thirdly the police were not in a position to produce the important evidence on the operation of the scheme from a costs perspective, the evidence which was quoted extensively in your judgment and the other important evidence that was submitted. And we are also in a position to argue capacity for the reasons which my friend has set out. That was an issue which was linked to the resolution of reviewability and the focus on the structure of this particular pubwatch scheme, in my submission, assisted the court in deciding ultimately the question of reviewability in this case.[21]It is for those reasons that I apply for costs on behalf of the second interested party. This was a case which had considerable implications for them which concerned directly a premises which they own and operate and for which they were served a claim form by the claimant and which, as a result of their involvement, played a very significant role, a role that was of significant assistance to the court in deciding this case which demonstrates both the separate nature of their interest and the importance of it.[22]There is a schedule of our costs which I have handed to my friend which the claimant would not have seen. They are higher than the police costs in this case. There are a number of reasons for that.

JUDGE MACKIE: The police solicitor is £55 an hour.

[24]MR FOSTER: Indeed.

JUDGE MACKIE: It is the best bargain you can get in the United Kingdom.

[26]MR FOSTER: Yes. The second consideration is that because of the importance of this issue for Wetherspoons and the fact there was already authority in point, Queen's Counsel was instructed.

JUDGE MACKIE:

[27]Assist me with this: generally costs follow the event. There is something of a brake on that in the Administrative Court. Whatever might be said about the fact. that there was authority, Mr Boyle did receive permission from a High Court judge to take the matter forward. I do not mean there was any collusion in an inappropriate sense but I thought this might be some sort of arranged test case. I am wrong about that, am I?[28]MR FOSTER: Yes. That is not the case.

JUDGE MACKIE:

[29]Because your clients produced a lot of very valuable material as though it were a test case, including evidence about what happened around the country, in a sense, what you have got out of it is a judgment upholding your approach, suggesting generally that - provided the guidelines to which I referred in the judgment are followed - the chances are that there will be no further successful judicial reviews. Do we know anything about Mr Boyle and his ability to pay this sort of bill?[30]MR FOSTER: No. In relation to the fact that the claimant was granted permission, plainly costs issues do not have to be decided, if ever, unless there is permission granted in a substantive hearing of the claim. That is not a bar to costs in any way. It is right to say that Wetherspoons became involved because of the importance of this issue to them specifically in this local context, but also on a broader level as well. The nature of the claim Mr Boyle chose to pursue for his own purposes - presumably having been advised - affected their premises and had significant potential to affect their broader interests as well. That was a separate and discrete issue which the second interested party was seeking to preserve from the chief constable's particular interest in this case where the claimant was suggesting various things about the way in which the police officers had operated this scheme. The material that was provided both locally and in broader terms was of assistance and that demonstrates the importance of that separate issue and also the role that Wetherspoons played.[31]It is right to say that the case of Bolton established a general principle that one order of costs is usually awarded. But there are no rules plainly, and it is a matter for the judge at first instance. There are examples in Bolton of considerations which affect that general principle, one being whether there is a separate and discrete interest which should be preserved and has been preserved by another party. In my submission that is the case here.

JUDGE MACKIE: That is Bolton v Manchester Shipyard; is that the one?

[33]MR FOSTER: Yes. I have a copy of that.

JUDGE MACKIE:

[34]Would you mind handing it up. (Same handed) (To Miss Ventham) Did those instructing you write to Mr Boyle and say they would be seeking costs?[35]MISS VENTHAM: On behalf of the police, no, that has not been done. We assumed he was going to attend today.[36]MR FOSTER: No, neither has my side.[37]MISS VENTHAM: If I could make one further submission, it was something you asked of my friend but it may have an effect on our application also; that is the principle that costs follow the event. In fact in judicial review, as in this case, the claimant was given permission to proceed by the High Court judge. The point is this: of course the point at which he was given permission, none of the evidence had been served. You may remember that in terms of the written case - the skeleton argument - put forward by the claimant there was next to no change between that which was submitted for the purposes of the permission hearing and that which was submitted and relied upon in the substantive hearing. Yet the landscape had dramatically changed in the meantime because all the evidence had been served and, as I said earlier on, in my submission, the claimant ultimately pursued a case that was unsustainable on its facts. There was actually very little dispute, if at all, on the law. It was all about the facts of this case and the particular involvement of this police force in this scheme. That is something the claimant should have taken a view on before proceeding to the substantive hearing. Unless there are any matters.

JUDGE MACKIE: No.

Ruling (As Approved)

JUDGE MACKIE:

[39]There are applications for costs both by the first and second interested parties. There is no application for costs by the defendant Haverhill Pubwatch whose representative Mr Mussett is not here. Although there is no application by the defendant, I am going to grant the defendant an order for the costs of his out-of-pocket expenses in courteously coming to this court on the two hearings of this case. Those will have to be assessed or quantified as part of the other exercise which, absent agreement, will have to be conducted about costs.[40]There are applications from both interested parties.[41]Mr Boyle brought judicial review proceedings, advised by solicitors and counsel. He applied for permission and that permission was granted by the judge. The matter came on for hearing. Mr Boyle fought the case and lost it. In the normal way, it follows that he has to pay some of the costs of the other parties. Generally in the Administrative Court only one set of costs is awarded because there are public interest reasons that do not apply in ordinary civil cases. The first interested party - the police - in effect had to be involved. I accept that. They have run up what is a modest bill of costs of some £9,500. The solicitors' charges in particular are strikingly low.[42]The second interested party - J D Wetherspoon - also, I accept, had a legitimate interest in coming here. Wetherspoon greatly assisted the court with a considerable amount of material and a high-powered legal team. There is a schedule of costs from them which, given the amount of work involved, is a reasonable amount. I am however only going to grant one set of costs because I have to draw some sort of balance here. It seems to me that the interested parties and the defendant could, had they wished to take a minimalist approach, have defeated Mr Boyle's claim by a much less elaborate defence. As a result of the conspicuously able and well organised defence, the court was able to look at the matter in some detail. As a result, those interested parties have achieved the objective, at least up until an appellate review, of a clear answer to the question of law raised by Mr Boyle.[43]Doing the usual difficult balancing act and recognising that any solution is an unsatisfactory one one way or another, I think the right thing to do - other than to compensate Mr Mussett - is to order one set of costs. That is what I will do.[44]There are two further complications. The first is that this is not a one-day case. I think it was a two-day case, so in the ordinary way it is not for me to assess what one set of costs is. My further difficulty is that not only is Mr Boyle no longer represented but he is not here. Neither indeed - for reasons I can understand - has he been warned that there will be an application for costs against him. He has not been warned because the other parties were unaware that he would not be turning up.[45]All I can do at this point is to say that I will order costs against Mr Boyle. There will be one set of costs to be shared by the interested parties plus the out-of-pocket expenses of the defendant. I will make a modest order for payment on account of costs of £10,000 payable within 14 days. It is not a reflection of what the ultimate bill will be; it is simply that in the absence of a litigant in person, I am hesitant about making anything other than a relatively modest order. I think it is important that I should make an order for payment on account because otherwise Mr Boyle may not appreciate that he is facing a substantial bill. It would be wrong for me to make that order without giving Mr Boyle a proper opportunity to challenge it if he wishes. That will be my order for costs. The payment on account is to be made within 28 days and Mr Boyle has permission to apply to vary this order for costs provided he does so within 14 days of being notified of this decision.[46]It would be helpful if the solicitors for one or both of the interested parties would notify him, in a way that is capable of being demonstrated, as quickly as possible so that time starts running and so he can either come back here and apply or let things take their course. Bearing in mind that we have a multiplicity of potential costs issues, other than make that modest payment on account, I will leave the matter to the costs judge.[47]If Mr Boyle does indicate through your solicitors that he wishes to apply, if someone would contact my Clerk it may be possible for that application to be heard - because I am here all the time at this court - at short notice so no one has to wait to go through the Administrative Court directly because everyone knows how under-resourced they are.

Cited in 1 later judgment