Wheeler v Norfolk County Council [2014] EWHC 2232 (Admin)

Case No CO/16986/2013

[2014] EWHC 2232 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Friday, 13 June 2014

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE BEATSON

MR JUSTICE COLLINS

Between

WHEELERAppellant

Between

NORFOLK COUNTY COUNCILRespondent

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Mr R Moules (instructed by Bates Wells Braithwaite) appeared for Appellant

for The Respondent did not appear and was not represented.

J U D G M E N T

[1]MR JUSTICE COLLINS: This is an appeal by way of case stated against the decision of Norfolk justices sitting at Norwich Magistrates' Court on 12 September 2013 when they made an order for costs against the Appellant; an order for costs in favour of an interested party, if I may so describe him, rather than a Defendant, the justices having dismissed the Appellant's case that he had brought.

[2]The case in question related to an application made under section 130 of the Highways Act 1980. He asserted that a particular footpath in Brampton in Norfolk had been unlawfully obstructed by a Mr Dixon. He made an application, as he was entitled to do, to the Local Authority to deal with that matter; effectively to ensure that the obstruction was removed. The Local Authority took the view that there was no unlawful obstruction.

[3]The Highways Act by section 130A entitles a person who alleges that the highway is obstructed, first of all, as I have said, to serve the highway authority with a notice requesting them to secure removal. By sub-section (5) of section 130A, the application has to include the name and address of any person who it appears to him may be, for the time being, responsible for the obstruction. That was, as I have said, Mr Dixon.

[4]The Local Authority having decided that it would not take any action because it was not appropriate to do so meant that there was a right in the Applicant to apply to the Magistrates' Court. That is what he did. As I say, the Magistrates' Court decided that his claim failed. Following such an application, there is a power in the court to make an order for costs, but that power is in accordance with section 64 of the Magistrates' Court Act 1980. The relevant provision of section 64 is, by sub-section (1), as follows:

"On the hearing of a complaint, a magistrates' court shall have power in its discretion to make such order as to costs... . . . (b) on dismissing the complaint, to be paid by the complainant to the defendant, as it thinks just and reasonable..."

I need read no more of section 64(1).

[5]It is thus clear beyond any doubt from the statutory provision that the only power in the Magistrates' Court under section 64 is to make an order, if it dismisses a complaint, against the defendant and if it allows the complaint, to be made by the defendant to the complainant. Thus, the power is only given to make orders for costs between the parties to the case who are either complainant or defendant.

[6]The justices took the view that they had a wide power to award costs to the interested party; that is to say the person allegedly responsible for the unlawful obstruction. That person is given a right to attend a hearing. That is provided by section 130C which, by sub-section (6), provides:

"On the hearing of the application any person who is, within the meaning of section 130A above, a person for the time being responsible for the obstruction to which the application relates has a right to be heard as respects the matters mentioned in section 130B(4)..."

That relates to the relevant powers of the magistrates to deal with issues of obstruction.

[7]The justices relied upon a decision of the Court of Appeal in Perinpanathan, R (on the application of) v City of Westminster Magistrates Court

[2010] 4 All ER, page 680

. That was an appeal in relation to the quantum of costs which had been awarded in connection with a matter before the magistrates, a matter which was a civil consideration. It is not necessary to go into the details in any way, but what was relied upon was observations of Lord Neuberger at paragraph 19 of the judgment where he said this:

"The starting point must be a consideration of section 64 and of the statutory provisions applicable in alcohol licensing and other cases. In my judgment, section 64 is concerned with both liability for costs and their amount. The only statutory restriction on the power of the magistrates is that they cannot make an order for costs against a successful party. This restriction explains its wording. It does not provide any "steer" or indication to the court that costs should follow the event, although in cases between private individuals that is likely to be the order failing good reason to deprive a successful party of some or all of his costs."

[8]I should correct what I said earlier. That case concerned an argument that costs should have followed the event, but the magistrates had decided in the circumstances that they would not make an order.

[9]It is clear that the observations of Lord Neuberger that I have referred to were in the context of a case where there had been an application that an order should be made against the party in question, that is to say, in that particular case, the Defendant, who was the police, the matter having been decided in favour of the other party.

[10]It is quite impossible and would have been impossible for Lord Neuberger and the Court of Appeal to have ignored the precise wording of section 64. It is not such as enables the court to make any order in favour of the person who I have described as the interested party; that is to say, the person who has a right to be heard if he wishes as the alleged obstructor of the highway in question.

[11]In those circumstances, the decision of the justices was clearly wrong. They were not entitled to make an order against the Appellant, Mr Wheeler, in favour of Mr Dixon. In those circumstances, this appeal must be allowed and that order quashed.

[12]I would only add that we have received notification on behalf of Mr Dixon that he was not proposing to attend this hearing because he took the view that the costs involved would be excessive. He would, I am afraid, for the reasons I have indicated, have had no conceivable chance of success. Indeed, it is unfortunate that when one looks at the submissions that were made in writing on his behalf by counsel then instructed by him at the Magistrates' Court that no proper argument was put forward by reference to the precise wording of section 64.

LORD JUSTICE BEATSON: I agree. The decision of the Court of Appeal in Perinpanathan's case did not concern the scope of the jurisdiction of a Magistrates' Court in a case such as this to make an order of costs, but it concerned the principles governing the exercise by such a court of what was undoubtedly within its jurisdiction. This appeal must be allowed.

[14]MR MOULES: Thank you, my Lords. I am grateful. I do have an application for costs. As your Lordships are no doubt aware, it is unusual for costs to be awarded against the Magistrates' Court.

[15]MR JUSTICE COLLINS: Yes. We do not normally do that, do we?

LORD JUSTICE BEATSON: No. What are the particular factors that lead you to invite us to make an unusual order?

[17]MR MOULES: Indeed. Three factors in particular, my Lords.

[18]Firstly, the relevant authority of the Court of Appeal in Davies indicates that where there is a flagrant breach by the magistrates, that can lead to a costs award. In my submission, this case is a flagrant disregard of their jurisdiction. The point was taken expressly in the costs hearing, and you have seen the skeleton argument in the papers, by the paralegal then assisting Mr Wheeler that the clear terms of section 64 did not allow costs to be awarded. As my Lord Collins J has indicated, no argument of substance was made on behalf of Mr Dixon in response.

[19]The reasons of the justices are entirely unclear as to the basis on which they found that they purported to have jurisdiction. Insofar as they cited the City of Westminster case, it was not being relied on by any of the parties before them, other than in relation to costs as between the Defendant and the --

MR JUSTICE COLLINS: Who are you asking for? Are you making an application against the justices --

[21]MR MOULES: Against the justices.

MR JUSTICE COLLINS: -- or against Mr Dixon?

[23]MR MOULES: Against the justices.

[24]The first factor is the point was clear and obvious both from the wording of the statute and the argument at the specific costs hearing that they convened.

[25]The second point is that it would be perverse if costs were not recoverable in a case such as this where the only substantive issue is jurisdiction to make a costs award. The costs awarded in this case were some £2,000. The costs of these proceedings exceed that award. It would be a perverse disincentive to challenge the magistrates' excess of jurisdiction in relation to their costs jurisdiction if one would be --

[26]MR JUSTICE COLLINS: Of course, this being a civil matter, there is no power to make an order out of central funds, is there?

[27]MR MOULES: Indeed. That is precisely the issue that gave rise to the exceptions in Davis. I fully appreciate they are narrow exceptions.

[28]The third factor, which was a factor not considered in Davies, is the Aarhus Convention where costs in environmental matters must not be excessively high so as to --

MR JUSTICE COLLINS: You are pushing it a bit to bring this in Aarhus.

[30]MR MOULES: In my submission, it does fall on the boundaries of Aarhus. It is --

LORD JUSTICE BEATSON: I always respect the ingenuity of counsel, but I have never heard an Aarhus argument in anything analogous to this situation.

[32]MR MOULES: Where one is concerned with rights of public access on footpaths --

LORD JUSTICE BEATSON: Yes, I see.

[34]MR MOULES: -- I certainly do not say that they are relevant in a highways case.

LORD JUSTICE BEATSON: What you really say is that those who initiated this whole process were, in a way, Aarhus people.

[36]MR MOULES: Indeed.

MR JUSTICE COLLINS: Why should we not have the power to make an order against Mr Dixon?

[38]MR MOULES: In my submission --

[39]MR JUSTICE COLLINS: Just as, for example, if it had been the police or whatever public body who had brought proceedings there would be power, if the magistrates got it wrong, to make an order against them, would there not?

[40]MR MOULES: They are the person --

MR JUSTICE COLLINS: It was his application for costs which led to the wrong decision, was it not?

[42]MR MOULES: Indeed, yes. He has filed a skeleton argument professing to be neutral in this matter --

MR JUSTICE COLLINS: Well, I know.

[44]MR MOULES: -- not neutral in the sense that perhaps the Swiss would understand it, but undertakings have been given to Mr Dixon as regards his position on the understanding he does not --

MR JUSTICE COLLINS: So there is no way --

[46]MR MOULES: So I am bound not to.

LORD JUSTICE BEATSON: So really it is the court or nothing.

[48]MR MOULES: It is the court or nothing, my Lord.

LORD JUSTICE BEATSON: Well, I think you have made the points, have you not?

[50]MR MOULES: I think so, yes.

LORD JUSTICE BEATSON: Mr Moules, we have some sympathy with the position of those you represent, but in a sense, you are aiming at the wrong culprit. For my part, I do not think you have yourself within the exceptions to the Davies rule. It is a stringent rule. It is there for a purpose. There are good independent of the judiciary reasons for it.

[52]MR MOULES: Indeed. May I take instructions on one final matter? Your Lordships do have discretion not only to quash the order, but also to remit the matter back. Insofar as my client has incurred costs resisting Mr Dixon's application in the Magistrates', that matter falls due to be decided.

LORD JUSTICE BEATSON: To what --

[54]MR MOULES: I do not know whether the paralegal costs --

LORD JUSTICE BEATSON: All right. Do take instructions, but it seems to be that this is a recipe for just more costs.

[56]MR MOULES: Fruitless litigation.

LORD JUSTICE BEATSON: Do take instructions, but you can hear what we both say.

[58]MR MOULES: I understand the point about proportionality. I understand the representation was pro bono, so the point falls away.

LORD JUSTICE BEATSON: All right. Thank you.

[60]MR MOULES: I am grateful.