Tilat Khan, R (on the application of) v Leicester Magistrates’ Court [2025] EWHC 2510 (Admin)

[2025] EWHC 2510 (Admin)Case No AC-2024-BHM-000217
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue The Birmingham District Registry, Bull Street, BirminghamDate 07/10/2025
Before
RICHARD KIMBLIN KC(SITTING AS A DEPUTY HIGH COURT JUDGE
Between
On the Application of TILAT KHANClaimantLEICESTER MAGISTRATES’ COURTDefendantLEICESTER CITY COUNCILInterested Party
Mark James (by direct access) for ClaimantJacqueline Lean (instructed by Wilkin Chapman LLP) for Interested PartyHearing Hearing date: 30 th September 2025
Approved Judgment
[1]This case is about the opportunity for counsel to make submissions in opposition to an application for costs in the Magistrates’ Court.[2]The Claimant was served with a liability notice to pay council tax to the Interested Party. That liability was contested and the dispute came before two justices at the Leicester Magistrates’ Court on 29th May 2024. They declined to quash the liability notice and ordered the Claimant to pay £13,500 in costs to the Interested Party. Eyre J granted permission to apply for judicial review on a single ground (Ground 3 on the Claim Form): “The Order of the costs made by the Lay Magistrates on 29th May 2024 without giving an opportunity to my Legal Representative to address them on the issue of the costs, is a breach of Human Rights and against the law”.[3]The over-arching issue is one of fact: did the Claimant have a fair opportunity to make submissions to the justices on the principle of payment of costs to the Interested Party, and if costs were to be paid, the amount? The facts are in dispute. Therefore Eyre J gave permission for witness statements to be filed and for the witnesses to be cross-examined.

BACKGROUND

[4]The Property is a self-contained hereditament situated within the larger property known as 5 - 8 Portland Towers. The Claimant is the registered freehold owner of the property. On each of 3 January 2023, 6 February 2023, and 15 January 2024, the Claimant was issued with a summons in respect of non-payment of Council Tax for the Property, relating to financial years 2018/2019 and 2020/2021 to 2023/2024.[5]On 29 May 2024 the Interested Party’s application for a liability order for the 2020/2021 – 2022/2023 financial years was listed for substantive hearing. The Claimant and Interested Party were represented by counsel: Mr Mohammad Tayyab Khan and Ms Evelyn Barden respectively. The Claimant’s letting agent, Mr Anderson was at court. The justices were assisted by a Court Legal Adviser, Mr Altaf Essat, though even his status is not agreed. As will become apparent, each of these participants is a source of evidence as to what did or did not happen at the hearing. All four provided witness statement and all except Mr Essat were called to give evidence in these proceedings.[6]The Claimant’s substantive case was that she was not the owner of the Property and/or that it was not a dwelling chargeable to Council Tax. The Interested Party’s position was that the Claimant was the owner; the Property was a dwelling chargeable to Council Tax; and that those matters were not, in any event, issues which could be raised on enforcement proceedings such as a liability order.[7]The Defendant made the liability order sought, and ordered the Claimant to pay the Interested Party’s costs of the proceedings. In making that Order, the Defendant had before it a costs schedule which had been filed and served by the Interested Party in the sum of £22,491.80. The Defendant ordered costs against the Claimant, in favour of the Interested Party, in the sum of £13,500.

THE ISSUE

[8]As I have indicated, the determinative issue in the case is whether or not Mr Khan had an opportunity to make submissions to the justices on the principle and quantum of the Interested Party’s costs application.[9]The Interested Party agrees that if this issue is decided in the Claimant’s favour, then there was an error of law. Those circumstances would be a breach of natural justice. It would plainly be unfair. It would be a failure to provide a hearing which was compliant with Article 6 of the European Convention.[10]However, the Interested Party does not concede that if such an error of law occurred that the impugned order should be quashed. The Interested Party argues that the outcome would be highly likely to be the same. This argument under s31(2A) Senior Courts Act 1981 raises questions of the extent of the costs jurisdiction of the Magistrates’ Court sitting in its civil jurisdiction, deciding whether to make a liability order, including as to costs.[11]The sum which is at large, on the Claimant’s best case, is £13,500. But the question of fundamental importance is whether the hearing of the costs application was in accordance with natural justice, or not.

APPLICATIONS

[12]By an application notice dated 26th August 2025, the Claimant applied for permission to argue a further ground which was actually two new grounds:(1) insufficient information;(2) incorrect basis of assessment. On reading the papers, it appeared to me that the proposed grounds were entirely without merit and far too late. In the event, at the very outset of the hearing, Mr James told the court that the application was not pursued so I say nothing further about it.[13]However, Mr James did have an application pursuant to CPR Rule 32.5(3) for Mr Khan to give oral evidence in relation to the submissions which he would have made to the justices, that being a new matter which had arisen since his witness statements were served.[14]The context was that Mr James had included two paragraphs in his skeleton argument on behalf of Mrs Khan which did exactly that: they explained what Mr Khan “could (and most likely would)have made”. Those points were, in summary:a. If the Interested Party had made its position on jurisdiction known earlier, then the costs of the contested hearing could have been avoided;b. The costs claimed in respect of the case management hearing of 17th January 2024 were unreasonable;c. The costs claimed in respect of the contested hearing on 29th May 2024 were unreasonable and not justified.[15]Mr James submitted that these points arose from the Interested Party’s position on s31(2A) Senior Court Act 1981. He wished to rebut the submission that the same decision would be highly likely in any event. Ms Lean opposed the application. She submitted that the s31(2A) point had been a part of the Interested Party’s case since the outset and it appeared in both the Summary Grounds of Defence and Detailed Grounds of Defence.[16]I refused that application because such evidence added nothing. I accept that points of the type which Mr James suggests could have been made to the justices are points which would be likely to be made. I did not need to hear evidence to that effect and it was not proportionate to open up still more factual issues in the course of this judicial review.[17]I have, nevertheless, gone on to consider Mr James’ points when I come to consider s31(2A) of the 1981 Act, below. THE EVIDENCE Sources

THE EVIDENCE

[18]There are two sources of contemporaneous evidence because hand-written notes were made by each of Ms Barden and Mr Anderson. In addition, Ms Barden wrote an attendance note to her instructing solicitors when she returned to chambers, on the same day as the hearing. Each was cross-examined in some detail on their respective notes.[19]In the weeks after the hearing, the Claimant and Mr Khan wrote on three occasions to the Magistrates’ Court: 3rd and 13th June 2024 and 15th July 2024. These documents are not contemporaneous but they are documents which were produced quite close in time to the hearing. They record the Claimant’s concerns about the outcome of the hearing.[20]The Claim Form is dated 23rd August 2024 and was issued on 30th August 2024. The Leicester Magistrates’ Court acknowledged service of the Claim form on 17th September 2024. Both contain signed statements of truth.[21]The Magistrates’ Court’s acknowledgment of service contained an account of the arguments, the decisions, and the events of 29th May 2024. It was signed by Mr Altaf Essat who gave his position as ‘Legal Advisor’. This information became more important in the case than might have been expected.[22]The witness statements were produced much later, pursuant to the order and directions of Eyre J on 1st April and 10th July 2025. The witness statements are dated between the end of April and the beginning of June 2025, about twelve months after the hearing. I heard the evidence of the three witnesses over a full day on 30th September 2025, sixteen months after the hearing.[23]From these principal sources of evidence I will consider what has been established and what remains contentious by reference to:a. What the hearing was about?b. What information did the parties have in advance of the hearing?c. Who was there, and in what role?d. What did Mr Khan, the Legal Advisor and the justices do when Ms Barden applied for the Interested Party’s costs?e. What happened after the justices had retired and returned to court?f. What happened after the hearing concluded?

The hearing

[24]As Mr Khan explained in his witness statement, on 3rd January 2023, the Interested Party made an application for a liability order against his wife, Mrs Tilat Khan. He appeared before District Judge Watson on 25th January 2023 who adjourned the case. There was a series of case management hearings which resulted in a final hearing, listed for 29th May 2024. Mr Khan attended each of those hearings on behalf of his wife.[25]The Interested Party served a 14-page skeleton argument on the day before the hearing and provided a costs schedule. The Defendant’s acknowledgment of service records that the case was heard by two lay Magistrates, Mr Pantling and Mr Baker.[26]The point raised by Mr Khan was that his wife was not the owner of 9 Portland Towers in Leicester. Ms Barden, counsel for the Interested Party, argued that the court did not have jurisdiction to hear Mr Khan’s point. Rather, she submitted, it was a matter for the Valuation Tribunal. Mr Khan applied to adjourn, which application the justices declined. The Defendant’s acknowledgement of service records that:
“With the combined effect of Section 16(1) of the 1992 Act; Regulation 57(1) of the 1992 Regulations and the binding judgments of Piggin and Oyston, the Magistrates arrived at an irresistible conclusion that Mrs Tilat Khan could not raise her particular disputes in the Magistrates’ Court as these were enforcement proceedings for liability orders.”
[27]The Defendant’s acknowledgement of service provides the detail of the parties’ arguments and the justices’ reasons for arriving at this conclusion. That decision is no longer in issue in this court, permission having been refused on the papers and after an oral renewal on those grounds. However, I observe that the Defendant’s acknowledgment of service is a carefully drafted response to the claim which addresses the issues which were raised on the claim form in appropriate detail and with care. It was evidently prepared by Mr Altaf Essat who signed each page and gave his position as Legal Advisor to the Defendant.[28]These facts are not contentious save that during his cross-examination, Mr Khan forcefully explained that Mr Essat was not the court clerk. His evidence was that Mr Essat was not the clerk and he was not the advisor. He was not giving advice to the justices. He had nothing to do with this case. He was just sitting as an observer.[29]Given that this surprising issue arose for the first time in the cross-examination of Mr Khan, I gave Ms Lean permission to ask a limited scope of additional question of Ms Barden. Ms Barden’s evidence was that Mr Essat was the only legal advisor in court. The reason that she understood Mr Essat to be the legal advisor is that she had sent an email to him, as Legal Advisor, containing a relevant case authority. Mr Khan had been copied into that email. Further, during the hearing, Mr Essat sat where a Magistrates’ Legal Advisor normally sits.[30]I am sure that Ms Barden is correct. Her evidence was perfectly clear and supported by the fact that she had emailed Mr Essat as legal advisor. Mr Khan’s evidence on this point is unsupported by any material which would corroborate it, and it is a surprising point to raise for the first time during cross-examination. No plausible explanation was offered to support the idea that the person who signed the Defendant’s acknowledgement of service was anybody other that the Legal Advisor who assisted the justices on 29th May 2024.[31]As to the costs application, Mr Essat wrote this on the Defendant’s acknowledgment of service:
“A statement of costs in favour of Leicester City Council was served upon Defence Counsel, and upon Mrs Tilat Khan. The total sum being requested was £22,491.80. Every opportunity was given to Defence Counsel to make counter representations regarding the award of these costs in whole or in part, but defence counsel chose to remain silent. The Court further reminded defence counsel if he wished to address any particulars in this claim for costs which would be regarded as unjustified or excessive, but defence counsel still chose to remain silent. Nonetheless, The Magistrates, in their discretion, still taxed down the claim for costs in favour of Leicester City Council, and only awarded £13,500.00, this sum representing the legal fees incurred by Leicester City Council in appointing counsel representation.”
[32]Mr Essat signed a witness statement dated 30th April 2025 in which he gave an almost identical account.[33]The Claimant and Mr Khan dispute this account. The Claimant did not provide a witness statement nor did she give evidence, however Mr Khan filed witness statements. In his first witness statement dated 30th April 2025, Mr Khan said:
“Before retiring, the justices did not ask me to address them on the issue of costs, and I was not given an opportunity to make representations on behalf of my wife as to whether she should be ordered to pay the Council’s costs or on the amount claimed. If the justices had asked me to address them, I would have done so, and I would have made representations to challenge the Council’s costs.”
[34]In his second witness statement dated 9th June 2025 Mr Khan reiterated his case:
“As I mentioned in my First Witness Statement dated 30 April 2025, after the justices made the liability orders, Ms Barden made an application for the Council’s costs as set out in the Statement of Costs (summary assessment) dated 22 May 2024. The Council was seeking costs of the proceedings, in addition to the costs awarded under Regulation 34(7). After the application was made, the justices retired and there was no time for me to object to the application, and challenge the Council’s application for costs as set out in the Statement of Costs (summary assessment) dated 22 May 2024. After the justices returned to court, they made an order on the Council’s application for costs as set out in the Statement of Costs (summary assessment) dated 22 May 2024, and then left the court. If there had been time, before the hearing ended, to raise objections, that I had not been given an opportunity to make representations on the Council’s application for costs as set out in the Statement of Costs (summary assessment) dated 22 May 2024, I would have done so.”
[35]There is a third account, which differs from those given by Mr Essat and Mr Khan. Ms Barden provided a witness statement dated 21st May 2025 to which she exhibited her attendance note which included this passage:
“I then made an application for the costs of the liability orders on the basis of the schedule, saying that the hearing had been listed for a day, had been on foot for over a year, there had been numerous issues raised by Mr Khan which had made the compilation of evidence more complex than it needed to be, the issues were uncertain and shifting for that reason also, there had been a number of hearings and this hearing had been listed for a day. Mr Khan opposed costs in their entirety.”
[36]Therefore, on the basis of the witness statements from these three witnesses, either:a. A full opportunity was given and it was not taken up (Mr Essat);b. No opportunity was given (Mr Khan);c. The application was opposed in its entirety (Ms Barden).[37]Mr Anderson was the fourth witness in the case, called on behalf of the Claimant. His witness statement takes this position, which is more nuanced than that of other witnesses:
“My recollection is that Mr Khan was not invited to make any representations as to whether or not his wife should be ordered to pay the Council’s costs or about the amount of those costs. I have not recorded that Mr Khan was invited to make any representations about these matters or that he did so. Had Mr Khan been asked to make such representations, or had he done so, I am confident that I would have made a note of that.”
[38]Given these contrasting positions, I turn now to the contemporaneous documents.[39]Mr Anderson took a note at Mrs Khan’s request. It is a three-page handwritten note. On costs, it says:
“Apply for Costs – filled yesterday. £22,490.80 – 3x witness statements 1 x full day Section 64 magistrates court act – power to make an award of costs. Accepts that civil procedure rules gives court No application made for costs in the schedule” £22,490.80 – 3x witness statements 1 x full day No application made for costs in the schedule”
[40]Mr Anderson answered questions on his note in a straightforward and neutral manner. He did what he could to help the court. He had noted everything that he heard which was of importance. A lot of time at the hearing was Mr Khan speaking about his side of things. The hearing went on longer than anticipated.[41]He did not record who was making the points which he recorded, nor any timings by way of noting what happened at what time of the day. He did not record that the Magistrates retired to consider their decision. It was all a bit of a whirlwind.[42]He did not record the outcome of the justices’ consideration of the costs application. He was confident that it was not announced, but he was confident that he put the key things down in his notes.[43]He was re-examined on his evidence that “it was a whirlwind”. He explained that the case seemed to wrap up quickly and when asked about the Magistrates’ frustration with Mr Khan, he said that they had a lot less patience than today’s court.[44]The other contemporaneous note was made by Ms Barden in her blue book. In respect of costs, there is no note that a costs application was made nor any note of what the Legal Advisor, the justices or Mr Khan said, or did not say, in respect of costs. The relevant part of the note records:
“ bench will retire Returned at 1:17 a lot being asked for issues not particularly difficult. involved barristers £13,500 to cover barrister fees + costs of hearing”
Returned at 1:17 a lot being asked for involved barristers £13,500 to cover barrister fees + costs of hearing”

involved barristers

[45]Ms Barden explained that she returned to her chambers and wrote an attendance note in the form of an email to her instructing solicitor. The material part of that email states:
“I then made an application for the costs of the liability orders on the basis of the schedule, saying that the hearing had been listed for a day, had been on foot for over a year, there had been numerous issues raised by Mr Khan which had made the compilation of evidence more complex than it needed to be, the issues were uncertain and shifting for that reason also, there had been a number of hearings and this hearing had been listed for a day. Mr Khan opposed costs in their entirety. The Magistrates awarded £13,500 on the basis that they considered the case was simple and did not justify the costs incurred but that due to Mrs Khan’s conduct there had been a need to engage counsel and so the costs of attendance at the hearings by counsel was justified.”
[46]Mr James put his client’s core case to Ms Barden, namely that Mr Khan did not make any submissions on costs. To that Ms Barden responded:
“With that I cannot agree, you will see my note to my instructing solicitor in which I record that he objected. This was made by me in chambers on return from the hearing. My blue book is not a perfect record. I like to make my notes to solicitors as soon as possible after the hearing. So, what I recall is recorded in the email.”
[47]Mr James asked Ms Barden why she did not record any submissions which Mr Khan made. To that Ms Barden responded:
“It may be that they were very brief. That is as far as I can go. There are all manner of reasons why it may not be perfect. With great respect, I find Mr Khan difficult to follow. I am speculating because I do not recall precisely what happened.”
[48]Though the hearing was fast moving, that does not mean that the hearing was not conducted properly, said Ms Barden. Either Mr Essat was wrong in saying that Mr Khan was silent or her immediate recollection was wrong, she said.[49]Ms Barden’s evidence was scrupulously fair. She answered each question with a directness which spoke of integrity. On no occasion did she seek to argue the case one way or the other.

After the hearing

[50]I turn now to what happened in the weeks following the conclusion of that hearing.[51]The first event was for Mr Khan to send an application to review the costs order to the Magistrates’ Court on 3rd June. It said nothing about natural justice. The second event was for Mrs Khan to send a document to the Magistrates’ Court in these terms:
“Notice of appeal against costs order 13 June “The Counsel for Leicester City Council, acting on behalf of the Revenue and Benefit Department, produced a Statement of Costs (Summary Assessment Order) claiming £22,491.80 costs in relation to these proceedings. The Learned Lay Magistrates did not enquiry why this matter was not dealt with on 25 January 2023 and why, on the first opportunity on 25 January 2023 before the Learned District Judge, Mr Watson, the issue of jurisdiction was not raised. The Learned Lay Magistrates should not have exercised their discretion to award the cost in the sum of £13,500 in favour of Leicester City Council because the issue of the jurisdiction should have been resolved on 25 January 2023 without incurring any further cost. … The Learned Lay Magistrates were fundamentally wrong to award the costs against me in the sum of £13,500 against me. They did not take into consideration the background of the case. The issue of the jurisdiction should have been resolved on 25 January 2023 before Learned District Judge, Mr Watson, without incurring any costs.”
[52]Next, there was a letter dated 15th July:
“On 29 May 2024, after the conclusion of the case in relation to the Liability Order, Counsel for Leicester City Council handed over a Schedule of Costs to the Lay Magistrates. The Lay Magistrates, without giving me the opportunity to address on the issue of the costs, immediately retired to consider the issue of the costs against Mrs Tilat Khan. The Lay Magistrates should not have decided the issue of the costs without giving me an opportunity to address them.”
[53]This was the first occasion on which a fairness complaint was made.

SUBMISSIONS

[54]Mr James submitted that Mr Khan is an experienced barrister, called to the Bar in 1972. As Mr Anderson put it, if Mr Khan has something to say, he will say it. Mr Khan was very firm in his evidence.[55]Mr Essat had not attended the hearing to give evidence on behalf the Defendant. There was no hearsay notice in which circumstances the Civil Procedure Rules require a witness to be called to give evidence. That witness statement should be discarded entirely.[56]There was strong circumstantial evidence to support the Claimant’s case. The Magistrates were frustrated. It was a whirlwind of a hearing and was moving into the lunch hour. It is plausible that the court “wanted to get rid and move on.”[57]On the other side of the case, there is Ms Barden’s evidence which comes down to one line in her attendance note which was prepared about three hours after the hearing. That part of her attendance note is not supported by the notes in her blue book and she could not remember the submissions which Mr Khan made. Mr Barden’s email should be understood as a reconstruction which sometimes happens with memory. We all have fallible memories.[58]The balance comes down in favour of finding that Mr Khan was not given a reasonable opportunity to deal with costs.[59]Ms Lean submitted that any counsel would expect there to be a costs application and would be expected to defend his or her client and to protect their interests. In this case a costs schedule was filed and served in advance of the hearing. Mr Khan was on notice and had full particulars of the costs sought.[60]There is no detailed contemporaneous account from the Claimant nor her witnesses whereas the account in the Defendant’s acknowledgment of service and Ms Barden’s email make clear that Mr Khan had an opportunity to make submissions.[61]It is notable that no witness suggests that Mr Khan raised an objection that he was not given an opportunity to say what he wished to say. An experienced barrister would stand up and make the point.[62]Mr Khan’s evidence should be approached with caution because of the absence of contemporaneous notes and his evidence is wholly dependent on recollection a year and half after the event. The evidence has evolved over time and in response to sight of the Detailed Grounds of Defence. In his second witness statement, Mr Khan referred to costs being awarded under Regulation 34(7) of the 1992 Regulations in respect of Council Tax. This point is ex post facto rationalisation, brought about by reading the Interested Party’s Detailed Grounds of Defence.[63]Mr Khan was confused about Mr Essat. Mr Khan was adamant that there was a clerk in addition to Mr Essat being in court.[64]Mr Anderson had not made a note of large parts of the hearing. Most notably, Mr Anderson had not noted the decision and the reasons given by the justices on the costs submissions. Evidently, the justices had made that decision, had announced it, and gave their reasons as was noted by Ms Barden.

NATURAL JUSTICE

[65]The Interested Party’s Detailed Grounds of Defence include, at [§§16-17]:
“The Claimant does not articulate the specific right or Article relied upon in support of the claimed breach of Human Rights. It is assumed, given the nature of the complaint advanced under this Ground, that the protected rights at issue are those under Article 6. The Interested Party does not dispute that if the Defendant had refused to hear the Claimant on the question of costs at the hearing, that would constitute procedural unfairness: De Smith’s Judicial Review, 9th Edn at 9-904. There is no need, therefore, for the Claimant to separately seek to rely on, or to assert a breach of, Article 6 ECHR in that respect.”
[66]The Claimant’s skeleton argument goes no further on the legal basis for the Claim. Neither counsel made detailed submissions on the law of natural justice in the particular context which arises here, though Ms Lean drew attention to R (Paling) v Ipswich Magistrates Court [2021] EWHC 2739 (Admin) in which Mr David Pittaway QC, sitting as a Deputy High Court Judge, heard a fairness case in which the grounds were as to:(1) the ability of the Claimant to hear what was said at a hearing, and;(2) the refusal to allow the Claimant to make oral submissions in addition to the 10-page synopsis he had handed into the justices.[67]Notice is central to natural justice: Kanda v Government of Malaya [1962] AC 322 at [337] for the well-known dictum of Lord Denning that if the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. Further, I understand the learned Deputy Judge in Paling to have accepted [at 11] counsel’s submissions that the court must make its own independent judgment of fairness rather than apply a Wednesbury reasonableness approach: R (Mahfouz) v General Medical Second Defendant [2004] EWCA Civ 223 per Carnwath at para 19 and R v Panel on Takeovers and Mergers ex p Guinness plc [1991] QB 146 per Lloyd LJ at para 184. The question is, does the court perceive that there was a failure on the part of the decision-maker to discharge its judicial function with the result that the hearing was unfair?: Rose v Humbles [1972] 1 WLR 33, para 12.[68]Representation may be an important factor in securing natural justice at a hearing. In this case, both parties appeared by junior counsel before the Magistrates’ Court, as they were plainly entitled to do.

FINDINGS

[69]The onus is evidently on the Claimant to establish that the Defendant erred in law in deciding to make an order for costs in the sum of £13,500. At the hearing, Mr James submitted that the burden of establishing the facts on which Ground 3 depends is a burden which lies on the Claimant. There is authority that in establishing a jurisdictional fact the concept of burden of proof is of less importance. Rather, the court should simply apply the civil standard to the evidence without resorting to the concept of a burden of proof: R (CJ) v Cardiff City Council [2011] EWCA Civ 1590; [2012] PTSR 1235 per Pitchford LJ at [21]. The factual issue in this case is not jurisdictional, but is a precedent fact to the court considering the merits of Ground 3. I have approached the issue on the evidence to the civil standard but have not adopted any requirement for the Claimant to bear the burden.[70]Some precision is needed in understanding both what is alleged as the error of law and what circumstances would suffice to make out that error. Ground 3 is expressed in terms of being given an opportunity to be heard. The Interested Party’s concession is that a refusal to hear Mr Khan would be contrary to natural justice. The ground of review and the concession are not coterminous. A refusal to hear counsel is an act which actively prevents counsel from making a submission, in writing or orally, which they would otherwise have made. An opportunity to be heard is different. It comprises a hearing or other means of communicating to the tribunal, the option to appear or be represented and a willingness by the tribunal to listen to and to consider the representations a party choses to make.[71]This case is not about refusal. There is no evidence that either the justices or their legal advisor turned Mr Khan away when he sought to say something. They did not receive written submissions and refuse to consider them. Rather, this case is about whether Mr Khan had a proper chance to make his oral submissions.[72]In my judgment, there are important matters which are not in dispute and which are relevant context in which to make findings on the live evidence:a. First, the parties had a long period during which to prepare;b. Second, the Claimant had a copy of the costs schedule. It was with the court and with Mr Khan on the day before the hearing.c. Third, the parties were both represented by counsel.[73]It is also part of the context that the complaint which is at the heart of this case was first raised on 15 July 2024 in a letter from the Claimant to the Magistrates’ Court. Before that date, Mr Khan did not raise any question or make any application to the justices after they had announced their decision. Moreover, Mr Khan did not raise any fairness point in his ‘Notice of Appeal’ dated 13th June 2024. His complaint in respect of costs was that the Interested Party should have made the arguments on which it was successful at an earlier stage, avoiding the costs of the hearing. He did not complain that he was unfairly prevented from making that point. However, I have not based my factual findings on any inference drawn from these documents. There are many reasons which might explain why a party may not wish to allege unfairness. The absence of a complaint early in the dispute does not necessarily mean that proper grounds for complaint do not exist. I have therefore focussed on the contemporary material and the evidence which I have heard about it.[74]I appreciate the basis of Mr James’ submissions on Mr Essat’s evidence. He did not attend to give evidence. However, I do not accept Mr James’ submission that his evidence should be given no weight. Mr Essat signed the Defendant’s acknowledgment of service, which contains a statement of truth. In judicial review proceedings the court proceeds on the basis that the defendant is complying with its duty of frankness and candour. At the substantive stage, the defendant must identify relevant factors and evidence to assist the court: CPR 54A APD11.1. The evidence I have seen does not indicate that the Defendant has done anything other than comply with its duties. The situation is therefore rather different to civil factual disputes because it is a Part 8 Claim to which CPR 54 and the duty of candour applies. The court is not bound to accept the facts as set out by the Defendant, but equally it is not appropriate to discard the Defendant’s evidence solely because the Defendant has not appeared and has not given live evidence.[75]There are three contemporaneous notes or accounts of the hearing. There are Ms Barden’s and Mr Anderson’s handwritten notes of the hearing. The third document is Ms Barden’s attendance note which is contained in her email to her instructing solicitor dated 29th May 2024 and timed at 16:15. I have found Ms Barden’s notes of the hearing and her attendance note to be the best evidence available, for these reasons:a. Her notes in her blue book are well made, structured, indicate whose contribution is being recorded, and they are notes made by counsel in the case;b. Her evidence about these notes was impartial and clear as I have said at paragraph 49 above;c. She did not overplay the completeness of her notes. They are not a full record;d. She recorded the outcome of the costs application and the Magistrates’ reasons whereas Mr Anderson did not. In this regard, Ms Barden’s note is more helpful than Mr Anderson’s note;e. She wrote an attendance note shortly after the hearing had concluded which summarised her immediate recollections, assisted by her note whereas Mr Anderson, understandably, did not do this;f. There is an apparently irreconcilable difference between Mr Essat’s account as recorded in the Defendant’s acknowledgement of service in that he said that Mr Khan was silent when invited to make submissions whereas Ms Barden’s recollection is that Mr Khan resisted the whole of costs application;g. However, there is no conflict between Ms Barden and Mr Essat on the question of whether Mr Khan had an opportunity to address the justices.[76]I also accept Mr Essat’s evidence that Mr Khan was invited to make submissions. If Mr Khan did not appreciate that this had been said, through distraction or other reason, that does not mean that the opportunity was not given.[77]I accept Mr James’s submissions that Mr Khan is indeed an accomplished and very experienced barrister. His evidence was indeed firm. However, I found his evidence about Mr Essat both difficult to follow and to be inconsistent with evidence about which I can be quite sure. There can be no doubt that Mr Essat was the Legal Advisor as is clear from the acknowledgement of service, his witness statement and Ms Barden’s experience at court. This feature of the case gave me cause for some caution with other parts of Mr Khan’s evidence.[78]I also accept the evidence that the hearing was fast moving. That is life in many courts. Without more, that would not persuade me that there was a failure on the part of the decision-maker to discharge its judicial function with the result that the hearing was unfair: Rose v Humbles. Rather, the result indicates the opposite. Many advocates would regard limiting adverse costs to 60% of those claimed as a good result. The justices were clearly seeking to do justice between the parties.[79]In my judgment, the key question is one of opportunity. In that regard I find that Mr Khan was in a position to make submissions on costs. He had the costs schedule and sufficient notice of the application that he would face if the court did not accept his client’s case. There is no evidence that Mr Khan was prevented from standing up to make submissions. The act of standing up is both physical and a signal to the court. That opportunity was present from the time that the costs application was made until the justices returned from their retirement. In my judgment it was open to Mr Khan to:(1) make submissions immediately after the application had been made;(2) to have a message sent to the justices to ask them to come back to court to hear submissions, or;(3) to ask to make submissions immediately upon the return of the justices to court.[80]Does the evidence as a whole indicate that Mr Khan was deprived of an opportunity to make submissions on costs? I do not think that it does. In the normal context of a costs application at the end of a Magistrates’ Court hearing, I find that there was a lawful opportunity for the Claimant to be heard. That finding is sufficient to dismiss the application.[81]Though my finding disposes of the case, I shall also address the submissions on s31(2A) Senior Courts Act 1981.

S31(2A) SENIOR COURTS ACT 1981

[82]Ms Lean submits that if I had found against the Defendant on the natural justice issue, then the court could refuse relief under s31(2A) Senior Courts Act 1981. The foundation for this submission is the scope of the Magistrates’ Court’s power under the Council Tax (Administration and Enforcement) Regulations 1992 (“the Regulations”), particularly Regulation 34(7) which provides:
“(6) The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid. (7) An order made pursuant to paragraph (6) shall be made in respect of an amount equal to the aggregate of— (a) the sum payable, and (b) a sum of an amount equal to the costs reasonably incurred by the applicant in obtaining the order.”
[83]Ms Lean’s argument is founded in R (Nicolson) v Tottenham Magistrates Court [2015] EWHC 1252 (Admin); [2015] RA 543, per Andrews J, as she then was, at [25, 31, 34]. From Nicolson she derives the propositions that in ordering costs to be payable as provided for under regulation 34(7), the Magistrates’ Court must be satisfied that:a. The local authority has actually incurred those costs;b. the costs in question were incurred in obtaining the liability order; andc. it was reasonable for the local authority to incur them.[84]Where the causal nexus is established, the question of whether costs were reasonably incurred is a matter for the Magistrates to determine, subject to challenge on Wednesbury grounds. Ms Lean’s bold submission is that once the court is satisfied that the costs have been reasonably incurred they have no discretion but to award costs in that amount.[85]Mr James also argues that the limit of the Magistrates’ Court’s jurisdiction on costs is that set out in Regulation 35 of the Regulations but he comes to a different result based on the interpretation of ‘incurred’. He relied upon A & D Computers Limited v Nottingham [2022] EWHC 2922 (Admin) at [26] perFarbey J.:
“Costs are incurred not only by the commencement of proceedings but also by the manner in which they are (or are not) pursued. Any party to proceedings in the Magistrates' Court should be prepared to pursue those proceedings conscientiously. It does not matter whether the party is a private or a public actor.”
[86]While A&D Computers was a case concerning the exercise of discretion under s. 64(1) of the Magistrates Court Act 1980, Mr James submits that Farbey J was setting out the natural meaning of the word “incurred” in this context and the same meaning should be given to that word in reg. 35 of the Regulations. This is also consistent with the ‘instruction of QC’ example given by Andrews J at [51] of Nicolson.[87]In my judgment, Mr James’ argument is essentially correct. Nicolson is over-extended in the Interested Party’s argument. That was a case of very particular facts in which the Claimant provoked his case in the public interest in order to establish what local authorities were doing which justified their routine application for costs when seeking liability orders. Reverend Nicolson did not contest the liability order. On the contrary, he went out of his way to receive a summons so that he could test the system when he accepted that a liability order should be made. Nicolson is not about the costs of a contested liability order and it does not address the costs jurisdiction of proceedings which require several hearings over a period of a year.[88]I do not understand Andrews J to hold, nor to make any remark which was unnecessary for her decision, to the effect that the Magistrates did anything which was outside of their powers in this case. To the contrary, per Nicolson at [51-52] the amount of costs is open to challenge in an appropriate and individual case. This case is unusual in that the liability order was contested. The costs incurred are well outside of the norm, but in my judgment the Magistrates were obliged to consider what sum was ‘reasonably incurred’. That was a matter which the Magistrates were best placed to assess.[89]For these reasons, if I had found there to be a breach of natural justice, I would not have refused relief.

ANOTHER METHOD

[90]Judicial review is neither designed for nor well suited to the resolution of factual issues: "Judicial review might be said to be a singularly inapt means of examining issues of credibility…Judicial review is suitable to deal with issues such as the rationality of the judgment reached; whether relevant factors have been taken into account; whether sufficient opportunity has been given to the affected party to make representations etc. All of these take place on - if not an agreed factual matrix - at least one in which the areas of factual controversy are confined.

(A) v Croydon London Borough Council [2009] UKSC 8 at [33])

[91]The alternative route to the High Court is to apply to the Magistrates’ Court to state a case under s111 Magistrates’ Courts Act 1980. As summarised by Andrews J in Nicolson at [18], the justices are entitled to refuse to state a case if the application is “frivolous” (in the sense of raising questions that are futile, misconceived, hopeless or academic), or inappropriate, or if it raises issues which are irrelevant to the court’s decision. A refusal is susceptible to judicial review. Four points occur.[92]First, there is, therefore, a connection between the primary means of challenge on a point of law under s111 of the 1980 Act, and judicial review: case stated first, with judicial review to follow if needed. There is no procedural bar to judicial review instead of an application to state a case, but to do so risks problems in the litigation and for the court which are avoidable.[93]Second, the time limit for an application under s111 is 21 days: see s111(2). This is a notably shorter period than the three-month time limit for judicial review. This claim was filed just before time expired. Given that the Magistrates’ Court is not a court of record and so has neither a recording, a transcript nor obligation to keep a note, it is likely that the best evidence can be secured shortly after the decision which is said to be in error, rather than leaving a longer gap.[94]Where a Claimant does not make an application to state a case and does apply directly for judicial review, it may be instructive to consider whether the application has been made promptly having some regard to the time limit for the primary route of appeal under s111, namely 21 days. This was the principle used in the Administrative Court in planning cases before the present six-week limitation was introduced, i.e. the statutory time limit on challenges to a minister’s decision (six weeks) was used as proxy for what constituted a prompt application in a planning judicial review.[95]Thirdly, a further distinction is that a case stated is a document which is produced via an iterative process, and ultimately signed by the justices. The draft case stated is seen and commented upon by the court and the parties. It should therefore contain the relevant material in a single document and relevant exhibits to the case stated. It will have the advantage of the tribunal itself stating what happened. In this case, the acknowledgment of service came close to that but was four months after the decision and it was not the evidence of the tribunal which is evidence which would have assisted the court.[96]Fourthly, the case stated procedure removes the need for witness evidence with its associated costs and requirement for court resources. In turn, it removes the evidential problems which arise when a judicial review turns into a contested hearing on the facts, such as the evidential status of documents which have gone into an agreed hearing bundle, but which are not exhibited to a witness statement. A further example is the relative weight to give to evidence filed by the Defendant, who will almost never appear and be represented, in comparison to that evidence which is called by the active parties.[97]The helpful and pragmatic approach of counsel assisted in navigating these issues in this case. I am grateful to them all, whether advocate or witness.

CONCLUSION

[98]The application for judicial review is dismissed.

COSTS

[99]The Interested Party applies for its costs in the sum of £33,521.20. The principle that the Claimant should pay the Interested Party’s reasonable costs is not resisted.[100]Mr James submits:a. Eyre J reserved costs when he granted permission. The costs of the permission hearing should not be allowed, applying the general rule that the court will not make an order for costs against the claimant at the permission stage;b. Further solicitors’ costs of £3,183.98 were reasonable;c. Counsel’s fees for documents and the brief fee should be £9000.[101]The basis for these submissions in that the maximum which was at risk for the Interested Party was £13,500. The costs schedule is disproportionate. The correct approach is to objectively assess “the lowest amount which it could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances.”: Kazakhstan Kagazyp plc v Baglan Abdullayevich Zhunus [2015] EWHC 404 (Comm) at [13] per Leggatt J, as he then was.[102]Ms Lean submits:a. The permission hearing resulted in ‘costs reserved’ not ‘claimant’s costs in the case’ and is an appropriate case to depart from the general position because the nature of Ground 3 clearly required the Interested Party to attend the permission hearing;b. The Claimant does not contest the principle of the costs of the acknowledgment of service;c. The Interested Party’s counsel had become a witness in the case and that required a change of counsel, with associated additional cost. A case with two counsel as witnesses is not an ordinary judicial review;d. There were matters which had to be dealt with such as the application to add additional grounds.[103]I accept Ms Lean’s submission that the Interested Party should have its costs of the acknowledgment of service which I summarily assess in the sum of £2000. I will not disturb the general approach to permission costs because I do not see anything which actually required the Interested Party to attend. I accept the basis of Mr James’ submissions as to proportionality. Proportionality in the resources to be directed to litigating a costs order of £13,500 is a particularly important consideration. Taking these points in the round, I have summarily assessed solicitors’ and counsel’s fees as £4500 and £10,000 respectively. The order shall therefore be that the Claimant shall pay the Interested Party’s costs in the sum of £16,500.