Melton v Uttlesford District Council [2009] EWHC 2845 (Admin)

Case No CO/8138/08

Case No CO/11489/08

[2009] EWHC 2845 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 11 November 2009

Before

THE HONOURABLE MR JUSTICE STADLEN

Between

Case No: CO/8138/08Appellant

THOMAS MELTONAppellant

UTTLESFORD DISTRICT COUNCILRespondent

THE QUEEN ON BEHALF OF THOMAS MELTONClaimant

UTTLESFORD DISTRICT COUNCILDefendant

MR KEVIN LEIGH and MR PHILIP WILLIAMS (instructed by SANDERS WITHERSPOON) for APPELLANT/CLAIMANT

MR TURLOUGH STONE (instructed by UTTLESFORD DISTRICT COUNCIL) for RESPONDENT/DEFENDANT

Hearing Hearing dates: 23, 24 and 27 July 2009

Judgment

[1]There are before the court two separate but related proceedings. The first is an appeal by way of case stated brought by Thomas Melton (Mr Melton) against decisions of the Crown Court sitting at Chelmsford on 4 January 2008 dismissing an appeal against a decision made on 1 June 2007 by the North West Essex Magistrates Court to reject his appeal against a decision of the Uttlesford District Council to refuse his application for a private hire vehicle drivers licence on 1 June 2006. The second is a rolled up hearing of an application for permission for judicial review and if successful a claim for judicial review of a decision by the Council through its officer Mr Michael Perry that the private hire vehicle driver’s licence granted by it on 9 May 2006 to Mr Melton was invalid. On the 2 March 2009 the two sets of proceedings were ordered to be heard together by Mrs Frances Patterson QC sitting as a deputy High Court Judge who also ordered the rolled up hearing in the judicial review proceedings.

The Facts

[2]In the Statement of Case dated 12 August 2008 signed by Mr Ashe QC who sat as a recorder with lay magistrates, it was recorded that the following facts were found:

“16. The Council administers control of hackney carriages and private hire vehicle drivers under the provisions of the Local Government (Miscellaneous Provisions) Act 1976. Under its powers the Council adopted and published standards which it expects drivers licensed by the Council to meet both on an application for a new licence and during the period which a licence is held. While the Council makes clear in its published standards that each case will be dealt with on its merits it states that applications for a new licence from persons who fail to meet these standards will normally be refused and existing holders who cease to meet these standards are likely to have their licence suspended. 17. The published standards state: “The Executive Manager Corporate Governance has been given delegated authority to refuse application for drivers licences for hackney carriages and private hire vehicles which do not meet licensing standards, with power at his discretion to refer appropriate cases to the Committee”

. The Committee referred to is the Licensing Committee of the Council and at the time the Executive Manager Corporate Governance was Mr Perry. 18. The relevant standard in this case is as follows:

“No serious motoring offences in the last 3 years. For this purpose a serious motoring offences is defined as one where 6 or more points have been endorsed on the driver’s licence”. 19. Mr Melton at the date of the hearing and for over eight years before that held a private hire driver’s licence from East Hertfordshire District Council. In November 2005 Mr Melton had been offered a job with Chequer Cars at Stansted Airport and the Uttlesford Council was the relevant licensing authority. He anticipated that working for Chequer Cars would increase his earnings significantly. He told Mr Hardy that he was waiting for the result of a Court case and he was told to come back after that and take it from there. 20. The court case in question was a contested road traffic case. The result of this was that Mr Melton was convicted of failing to stop after an accident, failing to report an accident and careless driving. His licence was endorsed with six penalty points. He did not appeal. 21. After the case Mr Melton applied to Uttlesford District Council for a private hire driver’s licence. By Statutory Declaration made on 11 April 2006, Mr Melton stated that he had not been charged with any criminal offence, that he had not been convicted of any criminal offence and that so far as he was aware he had not been the subject of any investigations regarding any possible criminal offences. He said that he swore the Statutory Declaration before a solicitor whom he told about the conviction for driving offences and that the solicitor told him that his offences did not matter as they were driving offences. Notwithstanding this Mr Melton told Mr Hardy about the six penalty points endorsed on his licence. 22. The Council issued the private hire driver’s licence on 9 May 2006 to Mr Melton and he started work at Stansted Airport with Chequer Cars. A short time thereafter the matter came to the attention of Mr Perry who noticed that the licence ought not to have been issued to Mr Melton because having six penalty points his application had not met the Council’s licensing standards and Mr Hardy the Licensing Officer had no authority to issue the licence. 23. Mr Perry interviewed Mr Melton at the Council’s offices on 31 May 2006 and explained this to him. He then proceeded to deal with Mr Melton’s application for a licence on the basis that because of the six penalty points he did not qualify for a licence. The policy of the Council was that where a driver failed to meet the Council’s licensing standards, he or she is offered the opportunity of an interview with Mr Perry to explain the circumstances. The purpose of such an interview is to establish whether there are matters relating to an applicant for a licence which may lead the Licensing Committee of the Council to make an exception to its policy. 24. In Mr Melton’s case Mr Perry sought at the interview to ascertain the circumstances surrounding the conviction. However Mr Melton denied that he had committed the offences. In these circumstances there was no explanation forthcoming by Mr Melton of how the offences came to be committed and Mr Perry could not find any reason to refer the matter to the Licensing Committee to consider a departure from policy. Mr Perry wrote to Mr Melton on 1 June 2006 confirming this. 25. Mr Melton lost his job with Chequer Cars and on 23 June 2006 appealed to the Magistrates Court against the suspension of his licence. At the hearing before the magistrates on 17 April 2007, the grounds of appeal were amended to an appeal against refusal to grant a licence.”

[3]As appears below it will be necessary to elaborate somewhat on the factual background including in particular in relation to Mr Perry’s interview with Mr Melton on 1 June 2006, Mr Perry’s telephone call with Chequer Cars and the circumstances of the change in the nature of the appeal at the Magistrates Court on 17 April 2007.

[4]In a witness statement dated 29 October 2006 made in opposition to Mr Melton’s appeal to the Magistrates’ Court Mr Perry stated that Mr Hardy had seen Mr Melton’s DVLA drivers licence which confirmed that he had motoring convictions in 2005 for offences of careless driving, failing to stop after an accident and failing to report an accident for which his licence had been endorsed with 6 points. He added:

“10. For some reason Mr Hardy did not appreciate that Mr Melton did not qualify for a private hire driver’s licence. I can only assume that at the time he was dealing with Mr Melton Mr Hardy was recalling the previous pre-licensing standards which would not normally permit a licence for a person with more than 9 points or who had been convicted of a serious motoring offence within the last 5 years. Unfortunately the previous pre-licensing standards (which Mr Hardy is used to working with) did not define “serious motoring offence” and as Mr Melton had only 6 points on his licence Mr Hardy may have mistakenly assumed that he qualified for the grant of a licence under delegated powers. 11. Having mistakenly approved the application Mr Hardy arranged for the licence to be prepared and the papers were then passed to a solicitor in the Legal Services Team (Mrs C. Oliva) for signature. Mrs Oliva tells me that she has no clear recollection of the circumstances in which she came to sign the licence but it is clear that she either failed to check the copy of Mr Melton’s DVLA driver’s licence which was on the file or she failed to compare it with the Council’s licensing standards. In any event she signed the private hire driver’s licence which was then issued to Mr Melton. The date of issue was 9 May 2006 12. The matter first came to my attention when the CRB check applied for in respect of Mr Melton was received at the Council Offices. Another licensing officer (Ms A. Turner) showed me the results which clearly indicated that a licence should not have been granted. In the circumstances I asked Ms Turner to arrange an interview for me with Mr Melton as a matter of urgency. 13. The interview took place at the Council Offices on 31 May 2006. I commenced by explaining to Mr Melton that the licence was invalid as it had been issued in error… 14. I then proceeded to deal with Mr Melton’s application on the basis that he did not qualify for a licence. I asked Mr Melton to give me details of the accident which led to his prosecution. He informed me that it had been alleged that he overtook a vehicle on the M25 motorway on the inside and then pulled in front of the vehicle colliding with the front of the vehicle as he did so causing minor damage and that he then drove off without stopping. Mr Melton said that he had pleaded not guilty to the offence because as far as he was concerned he had not been involved in an accident and indeed although he had been on that stretch of the motorway that day he had not been there at the time the accident was said to have occurred. Mr Melton was convicted by the magistrates after a trial. He told me that he was represented by a barrister and that he had been advised not to appeal as an appeal would stand no reasonable prospect of success. Although Mr Melton maintained to me that he had not been involved in an accident I explained to him that I was unable to go behind the fact of the conviction. I also had in mind that had Mr Melton appealed the magistrates’ decision the appeal would have been by way of re-hearing in the Crown Court. If Mr Melton’s barrister was of the opinion that there was no reasonable prospect of an appeal being successful then he must have been of the view that an appeal court would be no more likely to believe Mr Melton’s defence than the magistrates did. In the absence of any mitigating factors regarding the circumstances of the offences I saw no grounds upon which the Licensing Committee may have been prepared to depart from its policy and I therefore determined that Mr Melton’s licence should be refused… 16. On 1 June 2006 I wrote to Mr Melton informing him of my decision and the reasons for it. I also informed him of his right to appeal against the refusal.”

[5]In his letter dated 1 June 2006 to Mr Melton Mr Perry referred to a licence having been “purportedly” issued to him by Mr Hardy on 9 May 2006.He reiterated that there is no delegated authority to grant a licence where the applicant does not meet the Council’s licensing standards, that only the Licensing Committee can grant a licence in such circumstances and that Mr Melton did not meet them by reason of his conviction for a serious motoring offence within the period of 3 years prior to his application. He explained that where a driver fails to meet the Council’s licensing standards, he or she is offered the opportunity of an interview with Mr Perry to explain the circumstances. If he is of the view that circumstances exist whereby the Licensing Committee may be prepared to depart from its policy and grant a licence notwithstanding the failure to meet standards, a report is prepared for consideration by the Committee and the applicant is invited to attend the committee hearing. He recorded that he had therefore interviewed Mr Melton with a view to establishing whether in his circumstances he believed that there could be grounds to depart from policy. He said that neither at their meeting on 31 May 2006 nor in a telephone conversation on 1 June 2006 had Mr Melton given him any grounds which would suggest that the Committee might be prepared to make a departure from its policy and grant a licence in his case:

“In the circumstances, I am therefore refusing your application for a private hire vehicle driver’s licence.”

[6]He informed Mr Melton of his right of appeal against his decision to a Magistrates’ Court within 21 days adding:

“As the document issued to you by Mr Hardy was a nullity, you did not hold a valid licence from this authority. Consequently if you choose to appeal you may not drive whilst the appeal is being dealt with. To do so would be an offence which may result in both you and your operator being prosecuted.”

[7]In his account in the letter of the interview held on 31 May 2006 Mr Perry recorded Mr Melton as having told him that he was not aware of having been involved in an accident on 8 January 2005 and as having denied that any accident took place “Whilst you accept that you were on the M25 in that location on that day, you denied being there at the time the collision was said to have occurred. …When interviewed by me and again on the telephone you maintained that you had not committed the offences. As I endeavoured to explain to you I am not entitled to go behind the conviction. There is legal authority to that effect in the case of Nottingham City Council v Farooq. The Magistrates having found beyond reasonable doubt that you have committed the offences it is not open to me (nor would it be open to the Committee) to effectively overturn the conviction. As you deny the offences you are unable to offer me any explanation as to how they came to be committed and in the circumstances I could find no grounds for departing from policy. You also urged upon me your personal circumstances. You explained to me that you have been in a partnership which was failing and did not want to lose any more money. You therefore sought a licence from this authority with a view to commencing employment with Chequer Cars. The loss of the income from this job will be a severe burden upon you and may leave you unable to retain your accommodation. However in the case of Leeds City Council v Hussain the Court declined to take into account the personal circumstances in determining an appeal. In particular the Courts said “…the Council when considering whether to suspend the licence or revoke it is focusing on the impact of the licence holder’s vehicle and character on members of the public and in particular but not exclusively to the potential users of those vehicles. This does not require any consideration of the personal circumstances which are irrelevant except perhaps in very rare cases to explain or excuse some conduct of the driver” Such circumstances do not apply in your case.” Although it was not referred to either in Mr Perry’s witness statement or the letter, it was common ground between the parties before me that at the meeting on 31 May 2006 Mr Perry asked Mr Melton to return the licence which had been issued to him and that he did so.

[8]In a statement dated 31 March 2007 in support of his appeal to the Magistrates Court Mr Melton said that having been issued with a licence on 9 May 2006 he subsequently started work with Chequer Cars out of Stansted Airport, where he worked for 3 weeks until Mr Perry contacted Chequer Cars and told them to suspend him. In oral evidence in the Crown Court Mr Perry denied having rung up Chequer Cars but understood that a Miss Turner in his licensing team acting on his instructions rang, Chequer Cars and he accepted that she said words to the effect that “the licence was issued ultra vires, it is suspended, it is revoked, and he must not drive”. In relation to his interview with Mr Perry on 31 May 2006 Mr Melton in his witness statement did not take issue with the account of it given by Mr Perry in his witness statement dated 29 October 2006 or with the account of it given in Mr Perry’s letter dated 1 June 2006, which he exhibited to his witness statement. His comments on the interview were confined to stating:

“At the meeting Mr Perry informed me that I should not have been given a licence. He gave me a choice. He said I could either withdraw my application in which case the application fee would be returned to me. Alternatively, I could appeal against the decision but I would not get my application fee back.”

These points are broadly consistent with Mr Perry’s account in his witness statement and in the letter dated 1 June 2006.

Procedural History

[9]By a summons issued on 11 July 2006 Mr Melton appealed to the North West Magistrates Court in Harlow against the decision of the Council “to suspend” his licence. The grounds of appeal were that he had notified the Council of the fact that he had six penalty points on his licence before it was granted on 9 May 2006.

[10]In a letter to Mr Melton’s solicitors dated 26 October 2006 Mr Perry contended that the appeal put forward by Mr Melton was entirely without foundation for two reasons: first because he had not purported to suspend the licence of 9 May 2006 but rather had refused his application for a licence having dealt with it de novo; and second that since Mr Melton was not seeking to challenge his decision to refuse a licence but rather the validity of the 9 May licence the Magistrates’ Court was not the appropriate venue for such a challenge. The implication was that the appropriate venue for a public law challenge would be the Administrative Court on an application for judicial review. He repeated the invitation which he appears to have made in a telephone call earlier that day to amend the grounds of appeal to an appeal against a refusal of the licence or to withdraw the appeal.

[11]Mr Perry in his letter was repeating a point which had been flagged by Counsel briefed by the Council to appear at the appeal in her skeleton argument dated 5 October 2006. She expressly submitted that since the purported grant of a licence on 9 May 2006 was ultra vires and thus a nullity it had been neither suspended nor revoked (being incapable of neither) so that no appeal lay against either its suspension (as alleged by Mr Melton) or its revocation. The Magistrates’ Court had no jurisdiction to hear the appeal in so far as it was in effect seeking a declaration that the purported grant of a licence on 9 May 2006 was a valid lawful grant. The only appropriate jurisdiction in which to bring such a claim was the Administrative Court by way of judicial review.

[12]On 1 April 2007 a skeleton argument was served by Counsel originally briefed to appear for the Council on the appeal who in the event was unable to attend because her morning case over-ran. She submitted that the Council argued that the licence granted on 9 May 2006 was a nullity because the purported grant exceeded delegated powers whereas “the appellant argues that this was a valid licence.” She accepted that Mr Perry had powers to refuse applications which do not meet licensing standards, with power at his discretion to refer appropriate cases to committee and also that “it is clear that the Appellant does not meet the standards.” She accepted that on 1 June 2006 Mr Melton was informed of Mr Perry’s decision that he was refusing his application for a licence and further accepted that, the licence having been granted in error “challenging its validity would give rise to an appeal in the High Court. The whole background however shall be relied on in the appeal.” She then stated that Mr Melton was appealing pursuant to Section 51 of the Local Government (Miscellaneous Provisions) Act 1976 (“the Act”) “in appealing against the decision not to transfer the Appellant’s application to the Committee.” She then sought to distinguish the case of Leeds City Council v Hussain relied on by Mr Perry for the proposition that the personal circumstances of the appellant are irrelevant except in rare cases on the basis that that case (presumably unlike Mr Melton’s) related to revocation or suspension of a licence.

[13]This was on any view a puzzling document. The statement that Mr Melton was appealing against the decision not to transfer the Appellant’s application to the Committee was inconsistent with the decision appealed against in the summons, which was the Council’s decision to suspend the licence,as was the reference to Mr Melton being informed of Mr Perry’s decision to refuse his application and the implied submission that the basis on which Leeds City Council v Hussain could be distinguished was that it was a revocation or suspension case. It is also notable that she accepted that a validity challenge would give rise to an appeal in the High Court (and by implication not in the Magistrates Court), although as she pointed out it was the Council rather than Mr Melton which was arguing that the May 9 2006 licence was a nullity. There was no reference to any challenge by Mr Melton to any decision made by Mr Perry that the licence was ultra vires or any decision so to inform either Mr Melton or Chequer Cars.

[14]The hearing of the appeal was fixed for 17 April 2007. Exactly what took place on that day was a matter of some controversy between the parties before me. It is Mr Melton’s case that by the time his replacement Counsel who had been delayed arrived in Court, the magistrates’ legal advisor had been persuaded by those appearing for the Council that its approach, namely that the licence which had originally been issued was invalid, was correct and that his Counsel was then effectively forced into agreeing that the challenge to what the Council had determined was an appeal against a refusal to grant a licence. She was thus forced “to amend the appeal accordingly”. In a statement dated 23 March 2009 Ms Gray, Counsel who represented Mr Melton in the Magistrates’ Court on 11 April 2007, stated that she had arrived at 2.20pm at the Magistrates’ Court having been asked to cover for Ms Gardiner, who had originally been briefed to represent Mr Melton because her morning case had overrun into the afternoon. In her witness statement she said:

“I arrived at the Magistrates’ Court at 2.20pm and was immediately advised by the Magistrates’ Court legal advisor that the appeal had been brought under the wrong section of the Local Government (Miscellaneous Provisions) Act 1976. Uttlesford District Council was represented by Counsel and a solicitor, who I believe was a Mr Perry. The Council’s legal representatives and the legal advisor told me in front of the Magistrates’ that they could not hear the appeal as the licence was “void ab initio.” [I specifically recall the phase being used.] The Magistrates advised me they would not be able to hear the appeal against a revocation but would be happy to hear an appeal against a refusal. In these circumstances I was forced to accept a change in route of appeal to that of an appeal against a refusal to issue a taxi licence. The hearing was adjourned until 1 June 2007 where an appeal against a refusal would be heard.”

Ms Gardiner, Mr Melton’s previous Counsel had prepared a skeleton argument which left the position sought to be advanced on the appeal far from clear. Having stated that the Council argued that the licence issued by Mr Hardy was a nullity the skeleton said that the appellant argued that this was a valid licence. However it went on to concede that Mr Melton did not meet the Council’s standards and that the licence had been issued due to a mistake on the part of Mr Hardy. It was also accepted that a challenge to the validity of that licence would give rise to “an appeal in the High Court”, presumably a reference to an application for judicial review. Having referred to Mr Perry’s decision following his interview with Mr Melton not to refer the matter to the Licensing Committee for determination and to Mr Perry’s having informed Mr Melton of his decision that he was refusing his application for a licence, the skeleton argument stated that he was appealing against the decision “not to transfer the appellant’s application to the Committee.” On its face this would appear to be a description of an appeal against a decision to refuse a licence, or at any rate to refuse to refer the application to the Committee who might have granted the licence, rather than an appeal against a decision to suspend a licence (although confusingly the appeal was said to be pursuant to Section 51 of the 1976 Act, which concerns the power of local authorities to grant licences rather than section 52 which provides for the right of appeal against a refusal of a licence to the Magistrates’ Court). Indeed the skeleton argument concluded by distinguishing the case of Leeds City Council v Hussain relied on by Mr Perry in support of the proposition that the personal circumstances of the appellant are irrelevant except in rare cases on the ground that “it is argued on behalf of the appellant that this relates to revocation or suspension of a licence, and the case is thus distinguished.”

[15]There was no formal written amendment of the summons by which Mr Melton appealed to the Magistrates’ Court. However in a letter two days later dated 19 April 2007 from Mr Perry to Mr Melton’s former solicitors, Mr Perry wrote:

“I refer to the hearing on 17 April when (by consent) your client amended his terms of appeal to an appeal against the refusal to grant his a private hire driver’s licence, a course which was clearly appropriate and which I have urged upon you from the outset. The matter has now been listed for a hearing on the merits on 1 June.”

This is consistent with Ms Gray’s reference to her accepting “a change in route of appeal” to that of an appeal against a refusal to issue a licence and with her saying that “the hearing was adjourned until 1 June 2007 where an appeal against a refusal would heard.”

[16]An appeal against a refusal of a licence must be brought under s52 of the 1976 Act whereas an appeal against a suspension or revocation of a licence must be brought pursuant to s.61(3) of that Act. It was not suggested that Mr Melton’s former solicitors challenged Mr Perry’s assertion that he had amended his terms of appeal at the 17 April 2007 hearing to an appeal against refusal or that they asserted that the amendment had been forced on him or his counsel, still less that they asserted that there had as a result been a procedural irregularity.

[17]Mr Stone, who, apart from the first hearing on 6 October 2006, appeared throughout on behalf of the Council, submitted to me that whatever pressure Ms Gray may have felt herself under, the objective fact is that at the hearing on 11 April 2007 she on behalf of Mr Melton effectively amended the basis and nature of his appeal from an appeal against suspension pursuant to s61 to an appeal against refusal pursuant to s52. He further submitted that it would have been open to Mr Melton, who was legally represented, to apply either at or before the adjourned hearing on 1 June 2007 to re-amend his summons so as to restore the original appeal against suspension but he did not do so. If, contrary to his primary submission, what occurred on 11 April 2007 was not an amendment made by Ms Gray on behalf of Mr Melton but some kind of order or direction on the part of the magistrates requiring him to change the basis of his appeal or refusing to entertain an appeal against suspension, it was open to Mr Melton to appeal against such order to the Crown Court as a procedural irregularity or otherwise. Mr Melton took neither of these courses. Accordingly by the time the matter was heard substantively by the magistrates on 1 June 2007 it had become effectively and unequivocally an appeal against a refusal of a licence pursuant to Section 52 rather than an appeal against suspension pursuant to Section 61. In my judgment those submissions are clearly correct. Indeed at the opening of the subsequent appeal to the Crown Court against the decision made on 1 June 2007 by the Magistrates’ Court, Mr Williams, who appeared for Melton at both hearings (and was led at the hearing before me by Mr Leigh) acknowledged that at the hearing on 1 June 2007 the appeal advanced was an appeal against a refusal of a licence and that if Mr Melton had wanted to complain that the amendment had been forced on him against his will by Mr Perry and the Magistrates’ clerk his remedy would have been to appeal against that to the Crown Court, which he had not sought to do at the 2 June 2007 hearing, or possibly to seek a judicial review of what the magistrates had done on 17 April 2007.

[18]It is to be noted that in his skeleton argument dated 16 April 2007 for the Magistrates Court hearing the next day Mr Stone expressly submitted that the Magistrates Court had no jurisdiction to hear an appeal based on a claim that the purported grant of a licence on 9 May 2006 was a valid lawful grant and that the only appropriate jurisdiction in which to bring such a claim was the Administrative Court by way of judicial review.

[19]At the adjourned hearing on 1 June 2007 Mr Melton’s appeal was dismissed. The memorandum of order records that the appeal was made pursuant to section 52 of the 1976 Act against the refusal of the Council to grant Mr Melton a licence and that the appeal was dismissed after a full hearing, with an order that he pay £3,000 to the Council. The full hearing included oral testimony from Mr Melton and Mr Perry both of whom were cross-examined.

[20]On 7 September 2007 Mr Melton lodged a notice of appeal to the Crown Court against the decision made by the Magistrates Court on 1 June 2007. On its face the notice of appeal purported to be against an order made by the magistrates refusing his appeal against the decision of the Council to revoke his licence. As appears above, no such order had been made by the Magistrates Court. Confusingly the grounds of appeal sought leave to appeal “the revocation and/or refusal to issue a private licence” at the Magistrates Court on 1 June 2007. The grounds included an assertion that the original grant by Mr Hardy of a licence had not been ultra vires and asserted that “the subsequent revocation and/or refusal of the licence” was done by Mr Perry due to the inflexible application of a clearly flexible policy. Thus the grounds, as distinct from the notice of appeal, appeared to assert that the Magistrates Court had rejected an appeal against both refusal and revocation. This was not only incorrect but not even consistent with the original un-amended summons to the Magistrates Court in which the appeal had been against a suspension as distinct from a revocation of the licence.

[21]Mr Melton’s appeal to the Crown Court was heard before Mr Recorder Ashe QC sitting with two magistrates. In his skeleton argument Mr Williams on behalf Mr Melton submitted that the licence originally granted by Mr Hardy was valid and had never been validly revoked. Alternatively he submitted that because the Council had not referred the matter to the Licensing Committee it was open to the Crown Court to find Mr Melton a fit and proper person to hold a licence. In support of the latter submission it was submitted that he was a man ostensibly of good character in his fifties who had driven with a valid driver’s licence for many years with no complaints and had held the same licence throughout in an adjacent district. It is not clear whether the primary submission was intended to be in support of an appeal against revocation, but at all events it appeared to be intended not to be in support of an appeal against refusal.

[22]In his skeleton argument Mr Stone submitted that on its face the notice and grounds of appeal attempted to go beyond the scope of the original appeal as determined by the magistrates on 1 June 2007 in so far as they sought to challenge an alleged decision by the Council to revoke the licence and to assert that the original grant of the licence was valid. He submitted in the alternative that the appeal should be dismissed because of an unreasonable delay in bringing the appeal some forty days out of time. In that regard he relied on the requirement under the Crown Court Rules 1982, Rule 7(3) that any notice of appeal should be lodged within 21 days of the decision appealed against. The first step taken to appeal by Mr Melton was said to have been a letter dated 31 July 2007, forty days out of time, seeking an extension of time. An extension of time had been granted to Mr Melton on 16 August 2007 and the Notice of Appeal served on 11 September 2007, the last day in the extended period for service. Mr Stone submitted that there had been no compelling reason for such a grant of extension of time.

[23]At the Crown Court hearing the Recorder, having read Mr Williams’ skeleton argument, put it to Mr Williams that the appeal to the Magistrates Court related to the refusal of a licence and that it was not open to the Crown Court to look at the question whether the original licence had been issued ultra vires. Mr Williams accepted that both points were correct and that he was out of time in making any submissions on the ultra vires point. When the Recorder put it to Mr Williams that the Crown Court could not put right any complaint that the 17 April 2007 hearing had changed the appeal from one against revocation (in fact it had been against suspension) to one against refusal because the powers of the Crown Court were limited to entertaining an appeal from what the magistrates decided and that if there had been a procedural irregularity at the 17 April 2007 hearing the appropriate course for Mr Melton was judicially to review the magistrates, Mr Williams accepted that that was also correct.

[24]Mr Williams further accepted the Recorder’s proposition that any complaint based on Mr Perry’s conduct was probably a judicial review matter on which time had expired even before the hearing of the appeal by the Magistrates Court. His explanation for Mr Melton not having availed himself of that remedy was:

“Why should the appellant say: “you have given me a licence. Please can I go to the High Court, which potentially could cost thousands of pounds, and quash this licence I have in my mind?”

. I take the reference to quashing the licence to be an inadvertent mistake and that Mr Williams intended to refer to an application to uphold the validity of the licence and/or quash Mr Perry’s suggestion that it was invalid. Mr Williams then said:

“I did not want any criticism before any potential judicial review or on an application to the Crown Court or before any other avenues of appeal were exhausted before going back to the fundamental basis of where it started from.”

It is apparent from this that Mr Williams had well in mind the possibility of an application for judicial review.

[25]There then followed a confusing passage in which Mr Williams first repeated his acceptance that the appeal which was heard by the Magistrates Court was an appeal against refusal and that the appeal to the Crown Court was confined to an appeal against that decision, but then invited the Recorder to give a preliminary ruling on whether the Crown Court had jurisdiction to entertain the wider grounds of appeal set out in the grounds of appeal. However in doing so he frankly acknowledged that he could give the Recorder no indication of how he could re-open an appeal against revocation (as he mistakenly referred to the initial appeal against suspension) before the Crown Court.

[26]The Recorder then gave a preliminary ruling on the extent of the Crown Court’s jurisdiction and the ambit of the appeal before it. He held that the limit of the appeal before the magistrates had been against the refusal to grant a licence and that the Crown Court had no jurisdiction to entertain the broader appeal canvassed in the grounds of appeal. He pointed out that the appeal from the decision of the magistrates dated 1 June 2007 was brought pursuant to sections 300-302 of the Public Health Act 1936 which are applied to appeals in such circumstances by section 77 of the 1976 Act. He held that once an appeal is made to the Crown Court, by reason of section 79 of the Supreme (now Senior) Court Act 1981, the customary practice and procedure with respect to appeals to the Crown Court and in particular any practice as to the extent to which an appeal is by way of rehearing of the case shall continue to be observed. In the view of the Recorder and his colleagues a rehearing can only be a rehearing of the actual process that actually happened in the Magistrates’ Court. The scope of Mr Melton’s appeal having been altered in the Magistrates’ Court, the magistrates deliberated on and decided on an appeal against a refusal by the Council to grant a licence. It followed that the very broad scope of the Notice of Appeal and the grounds of appeal particularised thereunder were outwith the jurisdiction of the Crown Court in so far as they went into the question whether the licence purported to have been granted on 9 May 2006 was valid or not. He held that that was not a matter which the Crown Court could go into. He added that a proper challenge to the validity of acts of officers of the Council would have been by means of judicial review in the Administrative Court of the Queen’s Bench Division and that Mr Melton ought not to have followed the route of an appeal. Alternatively the proper process to pursue a claim for damages for maladministration would be through the civil courts. He thus concluded by holding that the appeal would be conducted on the basis as if the Notice of Appeal merely appealed the decision of the Magistrates Court dismissing the appeal against the refusal of the grant of a licence on 1 June 2006. For the reasons set out later in this judgment in my view the Recorder was not only entitled so to hold but was obliged so to hold and Mr Melton’s submission to the contrary is unarguable.

[27]There followed a full day’s hearing including the oral testimony of Mr Perry and Mr Melton who were both cross-examined, following which Mr Melton’s appeal was dismissed and he was ordered to pay £1,000 towards the Council’s costs. In giving the Court’s reasons for dismissing the appeal the Recorder reiterated that what the court had done was to embark on a rehearing of the appeal against the refusal of a licence.

[28]On 25 January 2008 Mr Melton applied to the Crown Court to state a case to the High Court. He identified four questions which he wished the Crown Court to state to the High Court as follows:(1) Was the magistrates’ decision to allow the notice of appeal to be amended at the original request of the Council an error in law?

(2) Was the disallowance by the Council to allow Mr Melton to use the licence a refusal or was it a fundamental revocation by operation of law?

(3) Does the Crown Court have the power to amend any such error of law as set out in section 28 of the Supreme Court Act 1981?

(4) Whether the Council’s policy and its refusal to send Mr Melton’s application to the Licensing Committee which contradicted the legitimate expectation of a clear statutory provision (as set out in section 52 of the 1976 Act), was lawful? It is in my view self evident that the first three questions were wholly misconceived. Questions one and three did not arise out of the Crown Court’s decision because there had been no appeal to the Crown Court against the magistrates’ decision to allow Mr Melton’s original notice of appeal to be amended. Neither did the second question arise out of the Crown Court’s decision which was adjudicating on an appeal against a refusal. In so far as the fourth question was intended to challenge the decision of the Crown Court to refuse a licence to Mr Melton, it was legitimate. It is however striking that on its face it proceeds on the premise that the question facing the Crown Court was not whether in the exercise of its discretion, it believed that Mr Melton should have been granted a licence, but rather whether Mr Perry’s exercise of his discretion not to refer Mr Melton’s application to the full committee was unlawful. It is striking because at the heart of Mr Leigh’s submissions to me was the submission that the Crown Court erred in law in answering the latter question rather than the former. In his application for a case to be stated Mr Melton explicitly accepted that the Crown Court was not the correct jurisdiction to challenge the Council’s policy. On 29 January 2008 Mr Stone put in a written response to the application to state a case. In relation to the second question posed by Mr Melton, Mr Stone reiterated that neither the Magistrates’ Court nor the Crown Court is the appropriate venue to determine the validity of the licence purportedly issued to Mr Melton in error in 2006:

“that would have been a matter for the High Court of Justice by means of an application for judicial review.”

[29]On 25 January 2008 the Recorder agreed to state a case, giving no reasons for his decision. On 12 August 2008 he signed the written statement of case which was before me. He formulated two questions for the opinion of this court (inviting the court to make such consequential orders as it considers necessary) as follows:(1) Were we correct in deciding that we only had jurisdiction to rehear the matter that came before the magistrates namely the appeal by Mr Melton of the refusal of Uttlesford District Council to give him a licence for a private hire vehicle and if we were correct [sic]

(2) Were we correct in dismissing Mr Melton’s appeal to us from the refusal of Uttlesford District Council to grant him a licence for a private hire vehicle? It is to be noted that the formulation of the second question is couched in language which suggests that the Crown Court considered that what it was doing was dismissing an appeal from the refusal of the Council to grant Mr Melton a licence as distinct from an appeal against the refusal of Mr Perry to refer Mr Melton’s application to the full committee.

[30]On 28 August 2008 Mr Melton issued an appeal notice in which the decision sought to be appealed against was the decision of the Crown Court of 4 January 2008 to refuse Mr Melton’s appeal from the Magistrates Court. The notice of appeal contained no grounds, stating that full reasons would be elaborated on in a skeleton argument.

[31]On 30 September 2008 Mr Melton applied to amend the case stated and his application was heard at a hearing on 29 October 2008. It came before His Honour Judge Stewart QC sitting as a deputy High Court Judge. I was told that after some four hours of oral argument, Mr Leigh who by then was instructed by Mr Melton, and who had sought to reintroduce questions as to the validity of the licence into the case stated, withdrew the application to amend whereupon the Judge ordered that there be sequential skeleton arguments in respect of the case stated by respectively 19 November 2008 and 10 December 2008 by Mr Melton and the Council and that in the event of Mr Melton applying for permission for judicial review by 26 November 2008, the appeal against the decision of the Crown Court on the case stated should not be listed pending determination of the application for permission for judicial review. If such permission were granted the appeal was to be conjoined with the judicial review.

[32]On 19 November 2008 Mr Leigh and Mr Williams on behalf of Mr Melton submitted a skeleton argument in relation to the case stated. In it they sought to argue that the alleged illegality of Mr Perry declaring that the original grant of a licence was null and void as well as the alleged error by the Magistrates Court in effectively forcing Mr Melton to amend his original appeal fell within the first question to be stated:

“The proceedings in the Magistrates Court should have been concerned with a revocation of and not a refusal to grant a licence. Had this been the case the issue before the magistrates would have been whether there had been a change in circumstances since the grant of the licence such that the respondent had a reasonable cause to take away the licence.”

The skeleton argument indicated that if the Council’s approach to “the public law issue” is wrong but the case stated is not the appropriate forum to consider the point Mr Melton intended separately to challenge by way of judicial review the Council’s conduct including a claim for damages.

[33]On 27 November 2008 Mr Melton issued a claim for judicial review of the Council’s “unilateral declaration…through its officer Michael John Perry that the taxi driver’s licence it granted on 9 May 2006 to the claimant to drive a private hire motor vehicle was invalid.” The decision was said to have been taken “on or between 9 May 2006 and 1 June 2006 by conduct and/or in writing.” The relief sought was a declaration that the Council could unilaterally declare invalid its action in issuing a private hire vehicle driver’s licence on 9 May 2006 (sic) and the said licence remained valid until its expiration on 31 March 2007 and damages for negligence. It is apparent from the Statement of Grounds that the first declaration sought omitted by mistake some such words as “not lawfully” after the word “could”.

[34]On 2 March 2009 Frances Patterson QC sitting as a deputy High Court Judge considered the application for permission for judicial review on the papers. She ordered that the application be rolled up with the substantive application if permission be granted. She observed:

“The case is undoubtedly stale and although there is some explanation for some of the delay it does not necessarily explain it all.”

The Application for permission to apply for judicial review

[35]Mr Melton’s ground of challenge is that the Council through its officer Mr Perry was wrong in law to unilaterally declare that the licence it issued and under which authority Mr Melton drove around for three weeks was ultra vires and of no effect. It is submitted that questions of the legality of a public body’s jurisdiction (factual or legal) as to where its legal boundaries lie cannot be determined by the public body itself. Such a legal boundary is policed by the Courts. It is not self-extending by the discretion or judgment of the body itself. Reliance is placed on a dictum of Farwell LJ in R v Shoreditch Assessment Committee ex parte Morgan

[1910] 2 KB 859

(at p880):

“No tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such jurisdiction: such question is always subject to review by the High Court, which does not permit the inferior tribunal either to use …..…a jurisdiction which it does not possess, whether at all or to the extent claimed, or to refuse to exercise a jurisdiction which it has and ought to exercise.”

It is submitted that the approach of the Magistrates Court was wrong and that the only legal avenues open to the Council were to seek judicially to review its own decision or to treat the licence as valid (as by the presumption of regularity of administrative action it is asserted that it in fact was) and to revoke it. Reliance is placed on what is said to be a common practice on the part of councils which apply for permission to challenge by way of judicial review a planning consent issued by its own officer where it subsequently believes that it was unlawfully issued for want of authority for example because the officer granted permission under delegated powers and had overlooked an objector’s petition that required, under the delegated powers regime, the application to go to a full planning committee. It is submitted that the only course open to the council in such a situation, assuming that the consent is not surrendered by the recipient with an undertaking not to reply upon, it is to make an application for permission to challenge its own grant by way of judicial review.

[36]The Council opposes the application for permission for judicial review on the following grounds:(1) When it was issued the claim was out of time by at least 27 months. If Mr Melton wanted to have his public law point adjudicated, his claim for judicial review ought properly to have been made by the end of September 2006 at the very latest. (In fact on the basis that the last alleged date on which the impugned decision was said to have been made was 1 June 2006 it ought by reason of CPR 54.5(1)(b)to have been made no later than 31 August 2006.)

(2) Since this undue delay is ascribable entirely to the conduct of Mr Melton and/or his legal representatives, it would be unjust for him to be granted an extension of time. (I interpose to observe that although there was no formal application for an extension of time pursuant to CPR 3.1(2)(a), both parties proceeded on the basis that such an application had been made.) Further the granting of such an extension would cause direct prejudice to the Defendant and be to the detriment of good administration in general.

(3) It is unjust if not an abuse of process for Mr Melton to attempt to seek judicial review to ameliorate the consequences of his conduct of proceedings to date which has throughout been carried out with the benefit of legal advice.

(4) Mr Melton has chosen to follow a particular appeal procedure in which it was not possible for jurisdictional reasons for the public law point he now raises to be adjudicated. He seeks to side-step the consequences of that choice by means of his untimely application. That is not what the judicial review process is for.

(5) The application itself is in all the circumstances misconceived, raising no arguable case, vexatious (given the length and reasons for the lapse of time in bringing it) and academic in that the licence issued to Mr Melton on 9 May 2006 would have expired in any event on 31 March 2007. Further had the Council treated the licence as valid in June 2006 Mr Perry would have referred the matter to the Licensing Committee asking them to revoke it on the basis of section 61(1)(b) of the 1976 Act and it is more likely than not that they would have done so.

(6) Mr Melton’s claim for damages has no real prospect of success being both exaggerated and unsupported by objective evidence.

[37]In his statement of grounds Mr Melton submits that there are “good reasons” for the delay in making his application. It would appear that the good reasons relied on are that he has acted proportionately, reasonably and sensibly in pursuing the appeal route alone as, had he been successful, whatever the correctness of the Council’s conduct, he would have been given a licence and in the usual course of things earlier than the time any judicial review was finally heard. He submits that the question of the lawfulness of the Council’s original conduct in denying the validity of the licence goes to the root of the appeal to the Magistrates Court and that the case stated is wide enough to include the public law point raised in the claim for judicial review. However because there is no certainty that the court will accept jurisdiction on the case stated to deal with the public law point that is a reason why it should be dealt with if necessary in a claim for judicial review. It is conceded that it is possibly easier with hindsight to consider how matters might have been pursued differently but submitted that the appeal to the Magistrates Court issued by the original solicitors acting for Mr Melton (different solicitors having become involved by the time of the hearing before the Crown Court) was logical on the facts as they appeared at the time. Thereafter both sides became focused on the appeal.

[38]It is further submitted that there would be no prejudice to the Council in the event that permission is granted out of time. This would appear to be put on the basis that the public law point has to be dealt with at the hearing on the case stated in any event. It is further submitted that it would serve the interests of justice in terms of any clarification of the kind of conduct under scrutiny in this claim to have the matter properly considered. Finally reliance is placed on the claim for damages.

[39]CPR 54.5(1) provides that a claim for judicial review must be filed promptly and in any event not later than three months after the grounds to make the claim first arose. The decision which Mr Melton seeks to challenge is said in the Claim Form to be Mr Perry’s unilateral declaration that the licence granted on 9 May 2006 was invalid. That decision is said to have been taken on or between 9 May 2006 and 1 June 2006. In the Statement of Grounds it is accepted that the date for the purposes of any time limit probably runs from the telephone call to Chequer Cabs or possibly Mr Perry’s letter to Mr Melton dated 1 June 2006. That concession is in my judgment rightly made. Indeed it is inevitable. The half hearted suggestion that it might be that the act complained of “is crystallised” on 17 April 2007 when before the Magistrates Court the Council convinced them that the proper appeal should be against a refusal and not revocation is in my view plainly wrong. Anything said by Mr Perry to the magistrates’ clerk on 17 April 2007 was purely consequential upon the initial so-called decision which he is alleged to have made that the licence had been invalidly granted. That decision, if a decision is what it was, was undoubtedly made no later than 1 June 2006.

[40]It follows that the claim for judicial review should have been filed no later than 31 August 2006. Nor, in my view, is there any reason why the requirement of promptness did not require Mr Melton to have filed it significantly before then. He handed back his licence to Mr Perry at the interview on 31 May 2006. He was no longer working for Chequer Cabs and he had access to legal representation. He issued a summons in the Magistrates Court appealing against the “suspension” of his licence on 25 July 2006 and in principle I can see no good reason why he could not and should not have issued a claim for judicial review at least by then.

[41]The claim for judicial review was in fact only issued on 27 November 2008. The fact that this appears to have been a day later than the deadline set by His Honour Judge Stewart QC as the condition for deferring the listing of the case stated appeal is in itself de minimis not least given the context that it comes at the end of what is in my view a period of some 28 months delay. It is, however, not the first time that Mr Melton has left the filing of a court document to the very last moment. Having applied (out of time) for an extension of time for service of his Appellant’s Notice to the Crown Court, he left service of the Notice until the very last day of the forty day extension period. As appears below the extent to which an applicant for an extension of time has complied with other rules is one of the matters the court will take into account pursuant to CPR 3.9(1) (e).

[42]In Sayers v Clarke Walker

[2002] 1WLR 3095

the Court of Appeal held that when considering whether to grant an extension of time for an appeal against a final decision in a case of any complexity the courts should consider all the matters listed in CPR 3.9.(1) that is to say “all the circumstances including(a) the interests of the administration of justice;

(b) whether the application for relief has been made promptly;

(d) whether there is a good explanation for the failure;

(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;

(f) whether the failure to comply was caused by the party or his legal representative;

(g) whether the trial date or the likely date can still be met if relief is granted;

(h) the effect which the failure to comply had on each party and

(i) the effect which the granting of relief would have on each party. CPR 3.9 is concerned with the approach of the court on an application for relief from a sanction imposed for a failure to comply with any rule, practice direction or court order. However Brooke LJ held that it is equally appropriate to have regard to the check list in CPR Rule 3.9 when a court is considering an application for an extension of time for appealing in a case of any complexity. That is because where an applicant has not complied with CPR Rule 52.4(2) and if the court is unwilling to grant him relief from his failure to comply through the extension of time he is seeking, the consequence will be that the order of the lower court will stand and he cannot appeal it. Brooke LJ held that even though this may not be a sanction expressly “imposed” by the rule, the consequence will be exactly the same as if it had been and it would be far better for courts to follow the check-list contained in CPR 3.9 on this occasion too than for judges to make their own check-lists for cases where sanction are implied and not expressly imposed (paragraph 21). Although in that case the Court of Appeal was dealing with an application to extend time to appeal as distinct from an application to extent time for filing a claim for judicial review, in my view the reasoning underlying his decision is applicable also in the context of an application to extend time for filing a claim for judicial review. (I should add that although this authority was not cited in argument I did not consider it necessary to afford the parties the opportunity to make submissions on it after the hearing since the approach outlined by Brooke LJ is one which in my view is both open to the court on the basis of CPR 3.1 2(a) and appropriate in a case such as this and nothing material turns on it so far as my decision in this case is concerned.)

[43]The starting point for considering whether the discretion should be exercised in favour of granting an extension of time is in my view whether there is a good explanation for the failure to comply with the requirements of rule 54.5(1). In my view it is clear beyond argument that the answer to that question is in the negative. Mr Melton’s submissions to the contrary are in my judgment flawed. The proposition that it was proportionate, reasonable and sensible to pursue the appeal alone rather than in tandem with an application for judicial review ignores the fact that if, as occurred, the appeal was unsuccessful, the strict timetable laid down for the filing of claims for judicial review would be breached and delayed by the time taken for the appeal route to be exhausted. In the event (leaving aside the case stated appeal) the appeal route was exhausted on 4 January 2008. Even if a claim for judicial review had been filed immediately thereafter, there would have been an unacceptable delay of over 17 months. This is not a case where the appeal route was an alternative remedy such as would have prevented a claim for judicial review from being launched in that the amended appeal which was actually determined by first the Magistrates’ Court and then the Crown Court was against a refusal of a licence, whereas the claim for judicial review seeks to challenge the decision that the original licence was invalid. Moreover on the logic of this submission since the case stated appeal if successful could have led to the upholding of Mr Melton’s appeal to the Magistrates’ Court it would have been reasonable to wait until the outcome of that appeal before making a claim for judicial review. The fact that Mr Melton filed his claim in November 2008 rather than awaiting the outcome of the case stated appeal suggests that even he recognised the weakness of that submission.

[44]In his Statement of Grounds Mr Melton submits that the case stated is wide enough to include the public law point raised in the judicial review claim but adds that there is no certainty that the court will accept jurisdiction. The implication is that in that event that would of itself be a good reason for permission then being granted to pursue judicial review. In my judgment that is wrong for two reasons. First as appears below it is in my view entirely clear that the case stated is not wide enough to include the public law point raised on this application. The case stated is confined to the question whether the Crown Court was right to refuse Mr Melton’s appeal against the refusal of a new licence. That does not in any way turn on the question whether Mr Perry was acting unlawfully in unilaterally declaring the original licence invalid. The attempt to resurrect the public law point in Mr Melton’s ultimately abandoned application to amend the case stated in October 2008 was in my view as hopeless as was the original attempt by Mr Williams to resurrect it in his skeleton argument for the Crown Court. As soon as Mr Melton elected to pursue his amended appeal on 1 June 2007 against the refusal of a licence, he waived any right to appeal against any alleged procedural irregularity at the 17 April 2007 hearing which resulted in him amending his summons. At least from that time on it was in my view obvious that the appeal both to the Magistrates Court and to the Crown Court and indeed thereafter on the case stated was confined to the refusal issue.

[45]In any event the suggestion that a good reason for delaying the issue of the judicial review claim is to be found in what occurred in October 2008 is in my view misconceived. All that happened was that Mr Melton abandoned his attempt to widen the case stated to include the public law point. There was certainly no evidence before me to support the assertion in the Statement of Grounds that His Honour Judge Stewart QC “agreed that the topic needed to be resolved” in so far as the topic referred to was the public law point. It is denied in the Council’s detailed Grounds of Resistance that His Honour Judge Stewart QC at any point agreed that the public law issue needed to be resolved. It is asserted that he at no point expressed a view as to whether permission for judicial review should be granted or whether it was necessary or desirable that the public law points should be adjudicated. It is stated that what he in fact said was that, in circumstances where it was by no means certain that the Administrative Court hearing the case stated would entertain the public law point because Mr Melton had expressly chosen at first instance to proceed by way of the statutory appeal route in which issues of public law could not as a matter of jurisdiction arise, if Mr Melton wanted a determination on the public law issue the only way of doing so would be to apply (albeit well out of time) for judicial review.

[46]In my view the reasonable inference is that the reason for the claim for judicial review being made in November 2008 was that it was recognised that there was a possibility to put it at its lowest that the public law point might not be entertained as a live issue in the case stated appeal. This in turn raises the question whether there was any good reason for delaying until as late as four hours into the hearing of Mr Melton’s application to introduce the public law point into the case stated proceedings a decision to apply for judicial review. Again in my view the answer is clearly in the negative.

[47]First the question whether the point now sought to be raised in the claim for judicial review could legitimately be relied on in the appeals to the Magistrates Court, the Crown Court and the High Court is a question of law on which Mr Melton was free to seek legal advice. There is no suggestion that he had no access to legal advice. The inference from the fact that he was represented at both appeals is in my view the reverse. Second and in any event the procedural history summarised above shows that from a very early stage Mr Melton was put on notice that the appeal process was confined to the refusal issue and that if he wished to challenge the legality of Mr Perry’s declaration of the original licence as invalid the only appropriate forum for such a challenge would be the Administrative Court on an application for judicial review and not an appeal against the refusal of a licence to the Magistrates Court, the Crown Court and subsequently the High Court on a case stated. Thus as early as 5 October 2006 the Council’s skeleton argument expressly submitted that the Magistrates’ Court had no jurisdiction to hear the appeal in so far as it was in effect seeking a declaration that the purported grant of a licence on 9 May 2006 was a valid lawful grant and that the only appropriate jurisdiction in which to bring such a claim was the Administrative Court by way of judicial review. The point was repeated by Mr Perry in his letter dated 29 October 2006, by Mr Stone in his skeleton argument dated 11 April 2007 and again by Recorder Ashe QC in the preliminary ruling on 4 January 2008 when he held that a proper challenge to the validity of acts of officers would have been by means of judicial review in the Administrative Court of the Queen’s Bench Division of the High Court and not to have followed a route of appeal.

[48]Indeed the matter goes beyond notice to actual knowledge. As already mentioned Mr Williams on behalf of Mr Melton accepted in argument in the Crown Court that any complaint based on Mr Perry’s conduct was probably a judicial review matter on which time had expired even before the hearing of the appeal by the Magistrates Court. Mr Williams’ explanation for Mr Melton not having availed himself of that remedy appeared to be that it was unreasonable for Mr Melton to incur the cost of issuing judicial review proceedings seeking to uphold the licence. If and in so far as that was the explanation as to why a claim for judicial review had not been issued up to that point, while it may or may not have been a good reason for not bringing a claim for judicial review at all, it was not a good reason for delaying the bringing of such a claim. A fortiori it is not a good reason for delaying the bringing of the claim for a further ten months. If as a tactical or practical matter Mr Melton and/or those advising him calculated that an appeal against refusal if successful was a cheaper and quicker way of achieving what he wanted than a claim for judicial review challenging Mr Perry’s alleged declaration that the original licence was invalid then as a matter of fairness as between him and the Council and in the interests of justice in my view he must live with the consequence that if, as has happened, the appeal route took a long time and was ultimately unsuccessful he must live with the consequence that he has left it too late to bring a claim for judicial review.

[49]For that reason even if the claim for judicial review had been launched immediately after the failure of the Crown Court appeal in January 2008 there would in my view have been no good reason for the delay up to that point. In relation to the period between January 2008 and November 2008 it is the case that there was a long delay by the Recorder between agreeing to state the case on 28 January 2008 and signing the written case with the two formulated questions on 12 August 2008. However in my view nothing material turns on that. While that delay no doubt caused the delay in Mr Melton applying to amend the case stated and thus indirectly led to the hearing of the amendment application not being heard until October 2008, I have already held that in my view nothing that occurred in October 2008 justified the delay in applying for judicial review or provided a good explanation for such delay. I would add that Mr Melton was not prevented from seeking to run a challenge to the legality of Mr Perry’s decision as to the invalidity of the original licence in the case stated appeal by any order made by His Honour Judge Stewart QC. He chose to abandon his application to amend the case stated so as to include such a challenge. That was his choice.

[50]In short in my view there is no good reason for the delay in this case. There is a particular importance in the need for promptness in the bringing of claims for judicial review as is reflected in CPR 54.5(1). Where, as here, the delay is nearly two and a half years after the decision complained of and two and a quarter years after the three month deadline laid down by CPR 54.5 (1)(b), the court is likely to scrutinise with particular care any submission that there is a good reason for the delay. A change of legal representation and/or a change of opinion on law and/or tactics is unlikely to pass the test. It is not the function of the remedy of judicial review to serve as a tactical means of plugging an actual or perceived gap in the legal argument of a claimant on an appeal on a case stated where the resort to that remedy involved a failure to comply with the prescribed time limits, still less a failure on such a large scale as in this case.

[51]In my view where there is a combination of very long delay and an absence of good reason for the delay it is not a necessary precondition for a refusal to extend time and the consequent refusal of permission to apply for judicial review that the defendant must have established particular prejudice that would flow if permission were granted. The strict time limits prescribed by CPR 54.5 (1) reflect a public interest in the expeditious bringing of claims for judicial review which is wider and more general than the particular prejudice which may arise to a defendant from delay in any particular case. Section 31 of the Supreme Court Act 1981 provides that: (6) Where the High Court considers that there has be undue delay in making an application for judicial review, the court may refuse to grant – (a) leave for the making of the application, or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. (7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made.” Although the power to refuse the grant leave for the making of an application for judicial review pursuant to section 31 appears to be contingent on the court considering that the granting of leave would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration, it does not, in my view, follow that the power of the court to refuse to grant an extension of time pursuant to CPR 3.9 and thus to refuse to grant permission pursuant to CPR 54.4 is dependent on the court considering that a grant of an extension of time and permission to apply for judicial review would cause substantial or any hardship or substantial or any prejudice or would be detrimental to good administration where it does not consider that there is good reason for the application having been delayed. In my view that follows from the open ended nature of the discretion conferred on the court by CPR 3.1(2)(a) and from the fact that the effect which the failure to comply with the relevant rule (in this case Rule 54.5) had on each party is only one of the matters which the court will consider pursuant to CPR 3.9 when considering an application for an extension of time for issuing a judicial review claim.

[52]That this is the position is also in my view implicit in the decision of the House of Lords in R v Diary Tribunal ex parte Caswell

[1990] 2 AC 738

at 747 B where Lord Goff held:

“It follows that, when an application for leave to apply is not made promptly and in any event within three months, the court may refuse leave on the ground of delay unless it considers that there is good reason for extending the period; but even if it considers that there is such good reason, it may still refuse leave (or, where leave has been granted, substantive relief) if in its opinion the granting of the relief sought would be likely to cause hardship or prejudice (as specified in section 31(6)) or would be detrimental to good administration. I imagine that, on an ex parte application for leave to apply before a single judge, the question most likely to be considered by him, if there has been such delay, is whether there is good reason for extending the period under Rule 4(1). Questions of hardship of prejudice or detriment under section 31(6) are, I imagine unlikely to arise on an ex parte application where the necessary material would in all probability not be available to the judge.”

(emphasis added)

[53]In fact in my view there would be substantial prejudice to the Council if permission were granted in this case. Mr Melton has at every stage sought unsuccessfully to rely on the public law point in his appeals to the Magistrates Court, the Crown Court and the High Court. Those attempts were unsuccessful in the Magistrates Court and the Crown Court and, as appears below, are unsuccessful in this court. Similarly the appeals in respect of the refusal to grant a licence have also failed in the courts below and, as also appears below, failed in this court. In the Magistrates’ Court the Council was awarded £3,000 against costs claimed of £4,903.15 and in the Crown Court Mr Melton was ordered to pay a contribution to the Council’s claimed costs of £2,034.10 in the amount of £1,000. Mr Melton’s unsuccessful appeals have thus left the Council out of pocket. Of no less importance in my view is the fact that a considerable amount of time has been wasted on the part of the Council and in particular Mr Perry in resisting the appeals both generally and in relation to the misguided attempts to raise the public law issue in them. If a claim for judicial review had been brought promptly it is at least possible and in my view likely that those costs and that time could have been avoided.

[54]Further and in any event it would in my view be detrimental to good administration for permission to be given so long after the decision complained of in circumstances where the claimant has been put on notice by the defendant council from an early stage that the appropriate forum for determining his public law rights is on a claim for judicial review, elects not to bring such a claim but instead to follow a different procedural route for the adjudication of his claims and more than two years after the three month time period has expired finally decides to apply for judicial review because he and/or a new legal advisor then take(s) a different view of the case. A fortiori where, as in my view is the case here, the alternative route followed was misconceived. The system of judicial review places significant burdens on public authorities. In addition to the time and costs involved in defending actual claims for judicial review challenging their decisions, the prospect of the possibility of having to defend them once a complaint has been made or intimated can itself be diverting of resources and attention. It is important that public bodies should be able to order their affairs on the basis that, absent good reason, that prospect will cease to exist when the prescribed time limits expire and in any event will not continue for years. There are many other calls on what are often scarce resources both of money and personnel. There is an obvious public interest in public authorities being able to rely on the protection afforded to them by the strict time requirements imposed on would-be claimants by CPR 54.5 being assiduously enforced by the courts save where there is good reason for a delay. In my judgment no such good reason exists in this case. Mr Melton’s submission that it would serve the interest of justice to the wider public to have a determination of the public law issue sought to be raised by him does not in my judgment come anywhere close to balancing let alone outweighing the various matters to which I have already referred.

[55]As with the case of Sayers I should add that although R v Diary Tribunal ex parte Caswell was not cited in argument I did not consider it necessary to afford the parties the opportunity to make submissions on it after the hearing. Nothing material turns on it so far as my decision in this case is concerned both because my view as to the absence of a requirement for proof of prejudice to the defendant is based on the wording of CPR 3.1(2) (a) and 3.9 and the contrast between that language and the language of Section 31 and is not dependent on my interpretation of the dicta in that case and also because of my finding that extension of time and grant of permission would cause substantial prejudice to the Council and would be detrimental to good administration.

[56]So far as prejudice to Mr Melton in the event of extension of time and permission to apply for judicial review being refused is concerned, reliance appeared to be placed on the fact that there is no certainty that the court would accept that the case stated is wide enough to include the public law point sought to be raised in the claim for judicial review. I see no force in that argument. It is indeed right that if the public law point cannot be raised on the case stated appeal the only manner in which it could be raised is on a claim for judicial review. However that has always been the case since Mr Melton first complained about Mr Perry’s decision. As it happens I do not consider that the public law point can be raised in the case stated appeal and in my view it has always been obvious that that is the case. However that may be. The prejudice here relied on in my view amounts to no more than the prejudice suffered by any applicant for permission to pursue a judicial review claim outside the prescribed time limit, namely that he will be unable to bring a claim that he would have been able to bring had he sought to do so within those time limits. The absence of an alternative remedy is not in itself without more sufficient prejudice.

[57]The second point of prejudice relied on appeared to be based on the loss of the ability to recover damages for the substantial financial loss which Mr Melton alleges he suffered as a result of the Council’s conduct. The Statement of Grounds includes a claim for damages for negligence which caused him to lose the opportunity to earn a better living licensed in the Council’s district than outside it, it being foreseeable that he would lose his employment as a result of Mr Perry’s telephone call to Chequer Cars.

[58]Even if I were of the view that the damages claim was properly particularised and arguable or even good, any prejudice to Mr Melton flowing from his inability to pursue it as part of a claim for judicial review would in my view come nowhere close, either on its own or together with the other alleged prejudice relied on, to balancing let alone outweighing the other matters arguing against granting an extension and permission to pursue judicial review to which I have already referred. In so far as such a claim is dependent upon Mr Melton’s ability to obtain permission to claim judicial review, it falls in my view to be considered in the same way as any prejudice to him flowing from his inability to pursue the claim for judicial review itself. That is to say it has to be balanced against those factors arguing against an extension being granted. In every case where an extension of time is refused there is a theoretical prejudice to the claimant in being prevented from pursuing a claim which he would have been able to pursue if time had been extended.

[59]For the reasons set out above I have come to the very clear view that there should be no extension of time and permission to apply for judicial review should be refused by reason of Mr Melton’s failure to comply with the requirements of part 54.5.

[60]It will be apparent that I have reached this view without reference to any view on the underlying merits of Mr Melton’s claims. As a general matter it would rarely be appropriate to dismiss an application for an extension of time on the ground that the claim is weak unless the court was able to conclude that an application to strike out or for summary judgment would succeed.

[61]However where a claimant positively relies as a factor arguing for the extension of time on an assertion that refusal of an extension would be a particular prejudice to him by reason of the strength of the claim of which he would thereby be deprived, the court would in my view bound to reach a view on that assertion if it is of the view that, if made out, that factor would or might tip the balance in favour of granting an extension. As I have indicated that is not the position in this case and in any event Mr Leigh did not advance an argument based on a submission that Mr Melton’s damages claim is clearly a strong one. If he had advanced such an argument and if I had considered that a conclusion that the damages claim was clearly a strong one would or might tip the balance in favour of the grant of an extension of time. I would have considered it both legitimate and necessary to express a view on it. Had that been the case, I would have rejected the argument for the following reasons.

[62]Quite apart from the lack of particularisation, there would in my view be formidable difficulties for Mr Melton in pursing his claim for damages. Even if he succeeded in establishing that the Council was liable to him in negligence by reason of Mr Perry having told Chequer Cars that his licence was invalid, he would have to prove on the balance of probabilities that but for the negligence he would have continued to drive with the benefit of a licence from the Council. In my view if Mr Perry had taken the view that it would be unlawful for him to tell Chequer Cars that the licence had been invalidly granted, it is probable to put it at its lowest that he would immediately have recommended the Committee to revoke Mr Melton’s licence. The Council’s licensing standards are stated to exist to achieve the objective of ensuring the safety and wellbeing of the fare paying public. To achieve that objective the Council states in the licensing standards that it expects drivers licensed by it to meet those standards both on an application for a new licence and during the period a licence is held:

“Whilst each case will be dealt with on its individual merits applications for a new licence from persons who fail to meet these standards will normally be refused and existing licence holders who cease to meet these standards are likely to have their licence suspended or revoked or not renewed on application.”

(emphasis added)

[63]It is in my view clear beyond argument that the licence purportedly granted to Mr Perry on 9 May 2006 was actually invalid. Mr Perry’s evidence was that both he and Miss Oliva had delegated authority to issue licences only where the applicant met the licensing standards. By reason of his six penalty points Mr Melton did not meet those standards when he made his application. It follows that the licence signed by Miss Oliva on the recommendation of Mr Hardy was issued ultra vires and was invalid. It is also the case that, Mr Melton having denied that he was present on the M25 at the time of the offences for which he was convicted, Mr Perry reached the clear conclusion at his interview on 31 May 2006 that there were no extenuating circumstances which meant that the Committee might be prepared to depart from its normal policy and grant him a licence even though he did not comply with the standards. That being so, if Mr Perry had been of the view that he could not lawfully tell Mr Melton or Chequer Cars that the licence had been granted invalidly, he would in my view probably have recommended the Committee to revoke the licence as a matter of urgency, for the very same reasons which led him to refuse the licence on his own consideration, namely that there were in his view no reasons for departing from the Council’s normal policy.

[64]In my view had Mr Perry recommended the Committee to revoke the licence, it would probably have done so. Section 61(1) of the 1976 Act provides that a council may suspend or revoke or refuse to renew a licence on any of the following grounds:

“(a) that he has since the grant of the licence – (i) been convicted of an offence involving dishonestly indecency or violence; or (ii) been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or of this part of the Act; or (b) any other reasonable cause.”

Mr Leigh submitted that the Council could not lawfully have revoked the licence in reliance on Mr Melton’s continuing failure to meet the standards and/or the fact that the initial licence had been granted invalidly and by mistake because those were not matters which had arisen since the grant of the licence. He submitted that the reasonable cause referred to in section 61(1)(b) must be one which has arisen since the grant of the licence. In my view that as a matter of interpretation of section 61(1)(b) is plainly wrong. (i) been convicted of an offence involving dishonestly indecency or violence; or (ii) been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or of this part of the Act; or (b) any other reasonable cause.”

[65]Mr Leigh’s alternative submission was that even if the Council had been entitled to and had revoked the licence, Mr Melton would have appealed to the Magistrates Court pursuant to section 61(3) and that by reason of section 77(2)(b) and (ii) of the 1976 Act he would have been entitled to carry on driving with the benefit of his revoked licence until the disposal of his appeal. Section 77(1) applies section 300 to 302 of the 1936 Public Health Act as if they were part of the 1976 Act. Section 301 of the 1936 Act provides for an appeal against a decision of a Magistrates Court to the Crown Court. This is in my view a very unattractive argument. Both the Magistrates Court and the Crown Court rejected Mr Melton’s appeals against the Council’s refusal of his application for a licence. In my view for the reasons set out in the context of my judgment on the case stated appeal, they were entitled to do so. If the appeals had been against a subsequent revocation by the Committee on the recommendation of Mr Perry rather than against a refusal of licence, in my view the Magistrates Court and the Crown Court would probably have rejected those appeals for the same reasons. If that is right it follows that the loss which Mr Melton seeks to recover flows from the fact that he was unable to carry on driving while pursuing an unmeritorious appeal. There is no equivalent right conferred by the Act to continue driving while appealing against an initial refusal of a licence. Thus the loss relied on by Mr Melton would be the artificial loss of an opportunity to carry on driving pending an unmeritorious appeal against revocation which only existed because of a mistake on the part of the Council in issuing him a licence in the first place and which he would not have had if the Council had refused his application as three courts have now held it was entitled to do.

[66]Even if such a claim had a good prospect of success I would allocate very little weight to any prejudice flowing from the fact that he would be deprived of the ability to pursue it by a refusal to extend time. In reality however, it is possible to identify two difficulties in the path of such a claim. The first is that the right to carry on a business pending an appeal conferred by section 77(2)(b) and(ii) of the 1976 Act does not apply in relation to a decision to suspend, revoke or refuse to renew a licence under section 61(1) if the decision has immediate effect in accordance with section 61(2B) of the 1976 Act. Section 61 (2B) provides:

“If it appears that the interests of public safety require the suspension or revocation of the licence to have immediate effect and the notice given to the driver under subsection 2(a) of this section includes a statement that this so and an explanation why, the suspension or revocation takes affect when the notice is given to the driver.”

It is in my view probable that such a notice would have been given to Mr Melton upon his licence having been revoked. In the absence of extenuating circumstances, it is in my view probable that the Committee would have concluded that the interests of public safety required the licence to be revoked with immediate effect given that Mr Melton did not comply with the licensing standards and the initial licence had only been granted by mistake.

[67]The second difficulty for Mr Melton is that he was under a duty to mitigate his loss. The obvious mitigation would have been to reapply for a licence which, on his case, the Council would probably have granted on the merits. One of the extraordinary features of this case is that I was told that Mr Melton has never reapplied for a licence, not withstanding that I was told that the six penalty points expired in November 2008.

[68]In these circumstances Mr Melton’s claim to damages would appear to be both speculative and unattractive and his inability to pursue it would not in my judgment be a sufficient prejudice to justify granting an extension of time which would not otherwise be justifiable.

[69]In these circumstances it is not necessary for me to decide the question whether the claim for judicial review is arguable. However out of deference to the submissions skilfully and persuasively advanced by Mr Leigh, I shall address this issue briefly. As I understood Mr Leigh’s submission it was that it was unlawful for Mr Perry to declare that the action of the Council in issuing the purported licence on 9 May 2006 was null and void and thereafter to treat as if it had never happened. If it considered that the licence was invalid the only legal avenue open to the Council was to seek judicial review of its own decision in granting the licence or alternatively to treat it as valid and subsequently revoke it.

[70]In support of this submission he relied on the dictum of Farwell LJ in the Shoreditch case cited above. In oral argument Mr Leigh accepted that the proposition of law for which he contended would require an extension of the principle set out by Farwell LJ. The Claim Form does not identify when Mr Perry is said to have made the decision sought to be challenged. It is said to have been taken “between 9 May 2009 and 1 June 2006 by conduct and/or in writing.” At the oral hearing Mr Leigh submitted that the relevant decision was the telephone call to Chequer Cabs in which they were informed that the licence was issued ultra vires, that it was suspended or revoked and that Mr Melton must not drive.

[71]Mr Stone, in written submissions which were also skilful and persuasive, submitted that the telephone call to Chequer Cars was not susceptible to judicial review. It was merely a manifestation or consequence of Mr Perry’s determination, on being confronted with evidence that the purported licence had been issued ultra vires, that it was a nullity. The telephone call had no legal effect, neither revoking nor suspending the licence. He accepted that in principle Mr Perry’s decision that the licence was invalid because it had been issued outwith delegated powers would have been amenable to review although it was not arguably unlawful, both because he was correct in his decision and also because even if he had been incorrect his decision had no legal consequence. Although Mr Stone accepted that it would have been open to the Council to apply to seek judicially to review the initial grant of the licence as having been made ultra vires, he did not accept that that was the only avenue legally open to the Council. If Mr Perry had been wrong to state that Mr Melton was not entitled to drive under the document mistakenly issued by Mr Hardy (a premise which Mr Stone did not accept) that was at its very highest mistaken advice, not a wrongful administrative act giving rise to a claim in judicial review. If Mr Melton was right that the licence was valid by operation of the presumption of regularity (which he also did not accept) he could have continued to drive and relied on the licence in the event of enforcement proceedings being taken against him.

[72]In Mr Stone’s submission the Shoreditch principle is not engaged because this was not a situation where the Council and/or its officers had either refused to exercise a jurisdiction that had been given to it or arrogated to itself a jurisdiction which it did not possess, those being the two scenarios referred to in the dictum of Farwell LJ. That dictum, as emphasised by Farwell LJ’s use of the word ‘final’, was an expression of the well-worn principle that the final and conclusive determination of an inferior tribunal’s jurisdiction is a matter for the superior courts. None of Mr Perry’s action could be construed as a final or conclusive decision on the limits of the Council’s jurisdiction or an attempt otherwise to exclude the jurisdiction of the High Court.

[73]Had it been necessary for me to decide the matter I would have been of the view that the claim for judicial review was arguable, but only just so. I can see some force in the argument that where a local authority takes steps to inform a third party that a licence purportedly granted by it is invalid and should not be relied on by that third party in relation to the licensee, the local authority is thereby purporting to rule on the invalidity of its own actions. Although in theory it is open to the third party and the licensee to ignore what the Council says, in practice that may be somewhat unrealistic.

[74]However if I had granted permission to apply for judicial review, I would have rejected the claim. In my judgment Mr Leigh was right to accept that the proposition for which he contended would require an extension of the Shoreditch principle. In terms, the dictum of Farwell LJ was concerned with a case where an inferior tribunal purports to be the final arbiter of its own jurisdiction thereby ousting the jurisdiction of the High Court. That is not, in my view, what Mr Perry was seeking or purporting to do either when he saw Mr Melton on 31 May 2006 or when he authorised the telephone call to Chequer Cars. Nothing that he did or decided had any legal effect and Mr Melton and Chequer Cars would have been free to ignore what Mr Perry said. If Mr Melton and/or Chequer Cars had chosen to ignore what Mr Perry said and Mr Melton had continued to drive in reliance on his licence any enforcement proceedings against him or them could not in my view have relied on a failure to comply with Mr Perry’s advice. They could, of course, have relied on the underlying argument that the licence had in fact been invalidly granted which in my view was the case.

[75]As to Mr Stone’s submission that permission should be refused on the ground that the claim is academic, his point was that whether or not Mr Melton was entitled to rely on his licence dated 9 May 2006 it would have expired in any event on 31 March 2007 and that there is no provision in the 1976 Act or any other statute for the court to resurrect a licence once it has expired. Thus if the claim had been brought properly and expedition had been sought, a successful claim might have led to Chequer Cars reinstating his job before 31 March 2007. As it is, there would be no practical effect of a decision in his favour. Taken on its own there is force in that submission. However in my view the claim for judicial review must be taken together with the claim for damages for negligence. The latter, notwithstanding my view that it is speculative and unattractive, would in theory, if successful, be capable of leading to an award of damages. In my view therefore this would not of itself be an independent ground for refusing permission.

Conclusion

[76]For the reasons set out above in my view there should be no permission to extend the time for filing the claim form for judicial review which was filed neither promptly nor within three months after the grounds to make the claim first arose. Accordingly I refuse permission to apply for judicial review.

The case stated

[77]My answer to the first of the two questions posed by the Crown Court is in the affirmative. The Crown Court was correct in deciding that it only had jurisdiction to rehear the matter that came before the Magistrates Court namely the appeal by Mr Melton of the refusal of the Council to give him a licence for a private hire vehicle. The contrary is in my view wholly unarguable. The appeal to the Crown Court was made pursuant to section 301 of the 1936 Act as applied to the 1976 Act by section 77(1) of the 1976 Act. As Recorder Ashe QC correctly stated in his preliminary ruling such an appeal operates as a rehearing which can only be a rehearing of the actual process that actually happened in the Magistrates’ Court. It is not only clear beyond argument but was explicitly accepted by Mr Leigh in oral argument before me that the only matter which was the subject of the appeal actually heard by the magistrates on 1 June 2007 was the appeal against the refusal of the licence. It was simply not open to the Crown Court to entertain any appeal against any alleged suspension or revocation of the licence purportedly issued on 9 May 2006. There had in fact never been any appeal against any alleged revocation. As to the original appeal against suspension in the original summons, that was amended by Mr Melton and no appeal or claim for judicial review was made in respect of any alleged role on the part of Mr Perry, the magistrates or the magistrates’ clerk in putting pressure on him to amend his summons. This was frankly acknowledged by Mr Williams in the Crown Court but is in any event self evident.

[78]As to the refusal of the Crown Court to entertain those aspects of the Notice of Appeal which went into the question whether the licence purported to have been granted on 9 May 2006 was valid or not, that was in my view entirely lawful. In so far as it raised a challenge to the validity of the acts of an officer of the Council it was a matter that should have been and indeed has now belatedly been sought to be challenged in the Administrative Court on judicial review. Further and in any event in my view those matters were irrelevant to the determination of the only matter which was live on the appeal before the Crown Court, namely whether the Council had been wrong to refuse Mr Melton a licence.

[79]The second question stated by the Recorder was:

“Were we correct in dismissing Mr Melton’s appeal to us from the refusal of the Council to grant him a licence for a private hire vehicle?”

In essence as I understood it Mr Leigh’s challenge to the decision of the Crown Court was that it asked itself the wrong question. The question it should have asked itself was whether Mr Melton should have been granted a licence. In answering that question the Court was obliged to put itself in the position of the Council, which for these purposes should be taken as the full Licensing Committee, and to ask itself whether its own view was that Mr Melton should have been granted a licence. The question which it is alleged the Crown Court erroneously asked itself was whether Mr Perry had erred in failing to refer the application to the full committee. The significance of the alleged error of approach it was said lay in the fact that the questions which Mr Perry had to ask himself were different from those which the Committee would have had to ask itself. The former were confined to whether he should exercise his discretion to refer the matter to the Committee on the basis that it might depart from its normal policy of refusing an application which did not comply with the licensing standards. The latter involved a consideration of whether all these circumstances justified such a departure.

[80]Before addressing these questions I should record that I was shocked to be told in the course of argument in answer to my question as to what would be the practical consequences of the appeal being allowed on this point that the only benefit to Mr Melton would be in relation to the costs incurred in the court below. That is because his six penalty points have already expired so that he was and indeed had been for several months before the hearing free to make a fresh application for a licence without the impediment of any penalty points. Thus although I was told that where an appeal in the Crown Court is successful it is the current policy of the Council to grant a licence for twelve months beginning with the first day of the month of the hearing, there is no reason to believe that such an outcome would be any different to the outcome of a fresh application for a licence. Thus if anything was largely academic it was the second question raised in the case stated.

[81]Turning to Mr Leigh’s submission, the first question that arises is what the Crown Court actually decided. Mr Leigh’s contention that it confined itself to asking whether Mr Perry had been wrong to refer the application to the committee derives some support from a passage in Recorder Ashe QC’s ruling in which he said:

“[Mr Perry] did not find any basis for exercising his discretion and we cannot criticise him in that. Even if we could criticise him, it is difficult to see what we can do, because our jurisdiction is either to uphold the Harlow magistrates or to allow the appeal. It is not the function of this court to exercise the powers of the committee. That would be wrong.”

[82]Mr Leigh relies in particular on the sentence “It is not the function of this court to exercise the powers of the committee.” That he submitted shows that the court was not considering what the Committee would have considered, namely whether in all the circumstances including the discretion to depart from the normal policy Mr Melton should have been granted a licence. Rather it was only considering whether Mr Perry was wrong to refuse to refer the application to the committee.

[83]Taken in isolation that sentence lends some support to Mr Leigh’s submission. This raises a point of some importance. The Council has a valid and legitimate policy whereby Mr Perry has delegated authority to grant a licence only where the standards are complied with and where they are not complied with either to refuse the licence or at his discretion to refer it to the Committee if he considers that they may exercise a discretion to depart from the published policy of normally refusing a licence where the standards are not complied with. By contrast the full committee has the power to grant a licence even where the standards are not complied with if it considers that there are extenuating circumstances.

[84]It is undoubtedly the case that the appeal both to the Magistrates Court and to the Crown Court operates as a rehearing in which the court is required to substitute its own decision on the application for that of respectively the Council and the Magistrates’ Court: see Sagnata Limited v Norwich Corporation

[1971] 2 QB 614

and Stepney Borough Council v Joffe

[1949] 1 KB 599

. On the other hand as was held by Lord Goddard LCJ in the latter case in a passage approved by the Court of Appeal in the former:

“That does not mean to say that the Court of Appeal, in this case the Metropolitan Magistrate, ought not to pay great attention to the fact that the duly constituted and elected local authority have come to an opinion on the matter and ought not lightly of course, to reverse their opinion. It is constantly said (although I am not sure that it is also sufficiently remembered) that the function of a court of appeal is to exercise its powers when it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right.”

[85]On the facts of this case the question for the Crown Court was whether the Council and the Magistrates’ Court were wrong to conclude that Mr Melton should not be granted a licence because they were not satisfied that he was a fit and proper person to hold a drivers licence (see section 51(1)(a) of the 1976 Act). On its face that required the Crown Court to reach its own independent view of whether Mr Melton was a fit and proper person. At the same time it would appear that the Crown Court was obliged to ask itself whether the decision actually reached was wrong. That decision was taken by Mr Perry under his delegated authority on a narrower basis than would have been open to the Committee and than was open to the Crown Court. It might in a theoretical case be possible to imagine circumstances in which a Crown Court might conclude that in its view an applicant was a fit and proper person despite his failure to comply with the Council’s licensing standards, while not concluding that the official exercising limited delegated authority had exercised his discretion wrongly in forming the view that a full licensing committee might not exercise its discretion to depart from the normal policy. Were such a case to occur in my view the correct approach would be for the court to allow the appeal if in its view the applicant was a fit and proper person.

[86]On the facts of this case it is in my view clear that the Crown Court did reach the view that put generally the Council was not wrong to refuse Mr Perry his licence That is so both because it concluded that Mr Perry was not wrong to refuse the licence and also because it concluded that there were no extenuating circumstances to justify a finding that he was a fit and proper person to hold a licence. In my judgment it was not wrong to reach those conclusions and did not make an error of law. Further, even if I am wrong in that conclusion, the Crown Court was in my view correct to dismiss Mr Melton’s appeal in that it is clear that, on the evidence before it, it was of the view that there were no extenuating circumstances such as would justify departure from the normal policy and that Mr Melton was not a fit and proper person to hold a licence. It was in my judgment not wrong to reach that view and made no error of law in reaching it.

[87]The purposes of the private hire vehicle driver’s licensing regime was summarised by Lord Bingham LCJ in McCool v Rushcliffe Borough Council

[1998] 3 All ER 889

at 891F as follows:

“One must, it seems to me, approach this question baring in mind the objectives of this licensing regime which is plainly intended, among other things, to ensure so far as possible that those licensed to drive private hire vehicles are suitable persons to do so, namely that they are safe drivers with good driving records and adequate experience…”

In R (on the application of Westminster City Council) v Middlesex Crown Court [2002] EWCH 1104, para 21 Scott Baker J addressed the question how a Crown Court or Magistrates Court should approach an appeal where the Council has a policy:

“In my judgment it must accept the policy and apply it as if it was standing in the shoes of the Council considering the application. Neither the Magistrates Court nor the Crown Court is the right place to challenge the policy. The remedy, if it is alleged that a policy has been unlawfully established, is an application to the Administrative Court for judicial review…”

It follows that in this case the Magistrates Court and the Crown Court were both entitled and obliged to apply the Council’s policy as if it was standing in its shoes considering the application. That policy provided that while each case will be dealt with on its individual merits applications for a new licence from persons who fail to meet the licensing standards adopted by the Council will normally be refused. Those standards included “no serious motoring offences in the last three years. For this purpose a serious motoring offence is defined as one where six or more points have been endorsed on the driver’s licence.”

[88]One consequence of this is that it is in my view of no avail to Mr Melton to point out that at the time his licence application was refused he possessed a licence issued by a neighbouring council. Different councils are entitled to adopt different policies. In Leeds City Council v Hussain

[2002] EWHC 1145 (Admin)

Silber J, having cited Lord Bingham’s dictum in McCool held “its purpose therefore is to prevent licences being given to or used by those who are not suitable people taking into account their driving record, their driving experience, their sobriety, mental and physical fitness, honesty and that they are people who would not take advantage of their employment to abuse or assault passengers. In other words the council, when considering whether to suspend the licence or revoke it, is focusing on the impact of the licence holder’s vehicle and character on members of the public and in particular, but not exclusively, on the potential users of those vehicles. This does not require any consideration of the personal circumstances which are irrelevant, except perhaps in very rare cases to explain or excuse some conduct of the driver.” (paragraphs 25 and 26). As appears from this passage Silber J’s comments are no less applicable to the grant of a licence than to its suspension or revocation.

[89]It is in my view quite clear from a careful examination of the transcript of the appeal in the Crown Court both that Mr Williams sought to persuade the Court that there were extenuating circumstances such as to justify the grant of a licence and that the Court reached the conclusion, which it was in my view entitled to reach, that on the evidence before it there were no such extenuating circumstances.

[90]There had been a dispute of fact between Mr Melton and Mr Perry as to whether the latter had given the former an opportunity at the 31 May 2006 interview to put forward extenuating circumstances in support of his application for a licence. Mr Perry said that he had. Mr Melton said that he had not. The Court preferred the evidence of Mr Perry:

“We accept the evidence of Mr Perry, however this was interpreted by the appellant, that in fact he sought at the interview to get information to see if there was a case to exercise his discretion to put it up to the committee.”

In the next sentence the Recorder added:

“He did not find any basis for exercising his discretion, and we cannot criticise him in that.”

In my judgment that is a key passage. It shows that the court addressed its mind to the matters raised by Mr Melton at his interview and reached the view that they were not even such as ought to have led Mr Perry to conclude that a committee might grant a licence by reference to them. In my view that is not a conclusion which the court would have arrived at had it been of the view that those matters were such as would justify a departure from the normal policy and show that Mr Melton was a fit and proper person.

[91]This is hardly surprising. Mr Melton at the interview denied having been present at the scene of the offences of which he was convicted. He thus failed to advance any mitigating circumstances in relation to the offences. In the account which was accepted by the Court Mr Perry said that he explained to Mr Melton that he had to find reasons to do with the circumstances of the accident which would justify taking the matter to the Committee. As Mr Williams himself accepted in argument Mr Melton’s statement that he thought he had been on the M11 and not the M25 at the time of the offence was “a great hurdle to get over”.

[92]It is further of note that, as pointed out by the Recorder in argument, Mr Williams did not ask Mr Melton in chief what were the extenuating circumstances. When asked by the Recorder what extenuating circumstances there were, Mr Williams’ reply was that Mr Melton had not challenged the magistrates’ decision. He had not said that the conviction was wrong. In fact that is precisely what he did say to Mr Perry by denying his presence at the scene. However even if he had not done so that would not in my view have been an extenuating circumstance or anything approaching it. Beyond that all that Mr Williams could put forward was that Mr Melton had no previous convictions other than for minor speeding offences. In argument before me it was suggested that the fact that he stood to lose his livelihood or at any rate a part of it by being forced to continue working from a neighbouring council area was an extenuating circumstance. In my view, that is precisely the kind of matter which Silber J, rightly in my respectful view, held does not require to be considered. As to the fact that a neighbouring council had granted him a licence, as already mentioned it is no part of the function of the court to go behind the policy of the Council whose decision is under appeal.

[93]It is clear from the transcript that the court was well aware that the appeal before it was a full rehearing and in my view the court made no error of law and was not wrong in dismissing Mr Melton’s appeal from the refusal of the Council to grant him a licence. The court did in my view conclude that he was not a fit and proper person to hold a driver’s licence having regard to the Council’s policy. If I am wrong in that conclusion, it is nonetheless my view that that was in fact the view of the court and if it had addressed its mind to that question it would have dismissed the appeal for that reason. I would go further. In my view on the basis of the evidence and submissions before the court it could have come to no other conclusion. In these circumstances I would answer the second question in the case stated in the affirmative.