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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kelly, R (on the application of) v Liverpool Crown Court & Anor [2006] EWCA Civ 11 (19 January 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/11.html Cite as: [2006] EWCA Civ 11

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Mr Justice Newman

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th January 2006

Lord Justice Waller :

1. This is an appeal from the judgment of Newman J dated 25^th May 2004 by which he refused the application for judicial review of the appellant (Mr Kelly). Mr Kelly was seeking review of the decision of His Honour Judge Macmillan sitting with magistrates of 11^th July 2003. By that decision the Crown Court sitting in appeal from the Wirral Borough Council (the WBC) dismissed Mr Kelly's appeal against the withholding of certain licences to run certain "Hackney Carriages" more commonly called taxis. The crown court was considering three applications of Mr Kelly; first an application made on 10^th June 1991 for 10 licences; second an application made on 9^th June 1993 for a further 10 licences; and third an application made on 17^th May 2002 for 4 licences.
2. The dates of the first two applications only need to be stated to raise questions as to how the same were being considered by the Crown Court in July 2003. An accurate answer would involve a detailed consideration of litigation over that period and a detailed consideration of a running battle between Mr Kelly and the WBC. It is unnecessary however to do more than give a bare outline of the history in the light of the fact that on 5^th December 2001 the then Recorder of Liverpool now David Clarke J gave an extension of time to Mr Kelly to appeal at least the first two applications, and there is no challenge to his exercise of that discretion. Furthermore Mr Kelly convinced Davis J to grant permission to move for judicial review on 24^th February 2004, and Mr Colbey persuaded Carnwath LJ to grant permission to appeal to this court from the decision of Newman J on 4^th May 2005 indicating at least that Mr Kelly had a point which needed consideration in relation to the first two applications, and that delay alone should not defeat Mr Kelly. It is right to say that Mr Edis QC for WBC submitted that delay alone should defeat Mr Kelly and indeed that Newman J decided that it should and this court should not interfere with that aspect of his ruling. But I will come to that.
3. The relevant history is as follows:

i) Mr Kelly made his application for 10 licences on 24^th June 1991. Licences in this context apply to vehicles themselves: he was thus seeking "plates" for ten specified vehicles. His case is that the application was made so as to increase the business he already had which involved running some 22 taxis for which he already had "plates", and his case is further that he had to purchase the extra 10 taxis and make them compliant with the conditions which the WBC would impose if they granted "plates" for those vehicles.

ii) On 30^th July 1991 the WBC refused this first application on the basis that there was not sufficient "unmet demand". The statutory regime under which taxis were licensed had two aspects; first the licensing authority could lay down "such conditions as [it] considered reasonably necessary" [see section 47 of the Local Government (Miscellaneous Provisions)Act 1976]; second where the authority is considering whether to grant a licence having regard to the numbers of other licences already granted it can refuse to do so on the ground that "there is no significant unmet demand" [see Section 37 of the Town Police Clauses Act 1847(as amended)]. This is dealt with in the written argument of the WBC before Newman J at paragraph 11, page 322 of the Bundle, and I do not understand there to be any dispute about it.

iii) Mr Kelly appealed to the Crown Court. The right of appeal to the Crown Court where a person is "aggrieved…by the withholding of any….licence" is provided by Section 7(1) of the Public Health Acts Amendment Act 1907. On 12^th December 1991 His Honour Judge Arthur sitting with magistrates reviewed the decision. They held that there was unmet demand and ordered that the 10 licences should be granted.

iv) WBC did not challenge the finding on unmet demand but wished to appeal the decision ordering them to grant licences. Their contention was that Mr Kelly's application should be considered with those of other applicants. There was a problem getting the Crown Court to state a case but ultimately on 17^th March 1995 Laws J (as he then was) set aside the Crown Court order, directing that following the ruling that there was unmet demand the right order was to remit the matter to the WBC for them to consider Mr Kelly's application with all others who wished to apply for licences.

v) In the meanwhile Mr Kelly had made his second application for a further 10 licences on 9^th June 1993. In this application he did not specify a further 10 vehicles, and before us it was contended this made the application invalid. This was not a point taken by the WBC at the time and they simply were not prepared to consider it in any event until their challenge to HH Judge Arthur's decision had been disposed of.

vi) Mr Kelly appealed the decision of Laws J to the Court of Appeal. On 3^rd May 1996 they upheld the decision of Laws J. In the lead judgment Auld LJ expressed his ruling in this way:-

"I am of the view that Laws J correctly remitted Mr Kelly's application to the council for its consideration . . ."

Staughton LJ put it this way:-

"I agree that the application should be remitted to the Wirral Council for reconsideration."

vii) It is of some interest that Staughton LJ in his judgment was also troubled about the fact that Mr Kelly had brought the proceedings relating to unmet demand whereas others had not. He postulated the possibility that Mr Kelly's might still not get a licence, but expressed a hope that Mr Kelly's application would receive some special consideration as a result.

viii) The WBC did not at this stage consider Mr Kelly's applications as such. To deal with unmet demand they took a policy decision on 4^th September 1996 to issue 15 licences following consultation with some sections of the trade and invited applications.

ix) Mr Kelly had applied for permission to appeal to the House of Lords in May 1996 and the House of Lords dismissed that application in October 1996.

x) On 20^th December 1996 the WBC wrote to the appellant stating that their records showed that he was one of a number of people who had written to the council requesting to be considered for the grant of a licence enclosing with the letter an application form; Mr Kelly did not fill in the form or respond. His case is that he already had applications before the WBC one of which at least the Court of Appeal had confirmed should be remitted to the WBC.

xi) On 9^th June 1997 the WBC announced the 15 successful applicants. One licence was granted to each of 15 owner/drivers. Mr Kelly was not granted any licence. On 20^th June 1997 Mr Kelly wrote to the WBC stating that "my application for 10 licences remains to be determined". This seems to refer to the first application alone and that seems appropriate, because the only application considered by Laws J and indeed the Court of Appeal was the original 1991 application. On 25^th July 1997 the WBC responded saying that the court had left it to them to decide how the unmet demand should be met, that they had decided 15 licences were needed, had invited Mr Kelly to apply but he had not done so, and thus "he was not considered".

xii) Correspondence between WBC and Steele & Co, solicitors acting for Mr Kelly, ensued. Steel & Co refer to "applications" but press for consideration for "our client's outstanding application". At this time troubles arose over Mr Kelly's existing licences. The WBC sought answers about the extent to which he was using vehicles with existing "plates". Steele & Co for Mr Kelly sought to keep apart consideration of the applications and the use of the existing licences. On 21^st January 1998 the WBC in a letter to Mr Kelly's solicitors stated both that they did not consider that Mr Kelly had any outstanding application, and referred to the possibility of 16 out of 22 of Mr Kelly's existing licences not being used. That letter also refers to a further decision of the Crown Court which had found in the context of a refusal by the WBC of applications made by six applicants for "plates" in 1997, once again that WBC had not established that there was no unmet demand. It is of interest that His Honour Judge Crompton found some difficulty in assessing unmet demand because certain of the issued plates on vehicles belonging to Mr Kelly (indeed 16 out of 22) were not being used.

xiii) As far as Mr Kelly's existing licences were concerned, the WBC during this period withheld renewals but ultimately following proceedings the WBC accepted that Mr Kelly should retain those licences and all was resolved so far as existing licences were concerned by November 2000.

xiv) In the meanwhile no further action had been taken by Mr Kelly to get the WBC to consider the application remitted, as he asserted, to the WBC by Laws J and the Court of Appeal, nor indeed the application made in 1993.

xv) Ultimately Mr Kelly sought to appeal against the "withholding" of licences which he maintained should have been granted. Mr Kelly accepted that whatever date he could identify as the date when the WBC had "withheld" licences for which he had applied, either by virtue of the 1991 application remitted by the Court to the WBC, or by virtue of his application made in 1993 he needed an extension of time for appealing. The rules provided for appeals being brought within 21 days of any withholding. We have no document seeking permission to appeal out of time. We were told that any such document had been mislaid. In the chronology produced by Mr Kelly reference is made to His Honour Judge Mackay and magistrates dealing with his application for permission to appeal in relation to the 1991 application alone on 2^nd February 2000. That seems to have been considered while the Crown Court were also considering Mr Kelly's case relating to the WBC's failure to renew his existing licences [see page 431]. It seems from the judgment of the Recorder of Liverpool, ultimately granting permission to appeal to which I am about to refer, that His Honour Judge Mackay may, at one stage, have intimated that he would refuse permission extending time for permission to appeal, and did not in fact deal with that matter. The chronology indicates that it was thus only in November 2001 that by letter to the Crown Court Mr Kelly finally pressed his request for leave to appeal out of time against the withholding of licences, but now he was seeking that extension by reference to two batches of 10 licences, i.e. he was including his 1993 application. It was this application for an extension of time which finally came before the Recorder of Liverpool on 5^th December 2001.

xvi) On 9^th December 2001 the Recorder of Liverpool heard Mr Kelly's application. There is no doubt he was generous to Mr Kelly in extending time for Mr Kelly to bring an appeal. But he did so because "reconsideration . . . has never been given to the [1991] application." He was also prepared to include the 1993 application in his leave, because it was "an extant pending application" at the date of the Court of Appeal's judgment. He warned Mr Kelly that the appeal would not result "automatically in the grant of further licences or any particular number of licences to him . . .".

xvii) On 18^th March 2002 the WBC deregulated i.e. they decided that it would no longer be their policy to limit numbers by reference to unmet demand, but at the same meeting it was resolved that taxis could not be more than 3 years old from the date of first registration. Mr Kelly suggests that the condition relating to 3 years was aimed at him, it being known that he had taxis which he had acquired prior to making his first application in 1991 which were very much older than three years.

xviii) When Mr Kelly's appeal first came on in the Crown Court His Honour Judge Dennis Clark apparently took the view that the three year point would prevent Mr Kelly succeeding and suggested that Mr Kelly should challenge the change in policy of the WBC.

xix) On 17^th May 2002 Mr Kelly made a further application for four licences, specifying the vehicles in this application. This was under the new policy and related according to Mr Kelly to vehicles that were less than three years old, calculating that date from date of first registration.

xx) Mr Kelly did not challenge the policy of the WBC. Another individual did challenge that policy. That challenge was however to deregulation and not to the three year policy. Matters, so far as Mr Kelly was concerned, were put in abeyance while the challenge was fought out. The WBC took the view that it was not possible to take a view as to Mr Kelly's applications until they knew whether the deregulation policy was going to be upheld as valid or declared invalid.

xxi) By a ruling of Sir Christopher Bellamy QC sitting as a High Court Judge on 18^th October 2002 the challenge to the WBC policy failed.

xxii) On the 1^st August 2002 Mr Kelly had lodged an appeal against the "withholding" of the four licences applied for in May 2002. He was however informed by the court that this application was too early because the WBC had not considered that application.

xxiii) On 5^th November the WBC altered the three year policy to three years from registration or manufacture whichever is the earlier – this policy change, if it applied, disqualified the four vehicles for which Mr Kelly had applied in May 2002. Indeed, on 24^th March 2003 (it seems from the chronology prepared by Mr Kelly), the WBC relied on this change of policy to defeat the application for four licences made in May.

xxiv) Mr Kelly's appeal to the Crown Court came before that Court more than once during 2003, and attempts were made by the WBC simply to have the appeal dismissed on the basis that the three year policy would mean that Mr Kelly could not now succeed on any of his appeals or applications whether they were his 1991 or 1993 or 2002 application. This point was indeed taken as a first point before the appeal commenced before His Honour Judge Macmillan on the 26^th June 2003. Judge Macmillan ruled in favour of Mr Kelly and allowed Mr Kelly to address him.

xxv) It is clear that Mr Kelly addressed the Court at great length. Ultimately His Honour Judge Macmillan, with magistrates, ruled that Mr Kelly's appeals in relation to his 1991 and 1993 applications should be dismissed because the "three years" policy applied. They ruled that he could not get round the fact that his vehicles were more than three years old from the date of manufacture. They ruled that they were "quite satisfied that this court cannot review or overturn or ignore the democratic resolution of the elected members of the local council or at least the committee which deals with taxi licences." Mr Kelly was critical of the way in which the judge conducted that hearing. In a transcript which we have it appears that following the ruling of the Crown Court he submitted that the judge had cut short his argument and did not allow him to get to certain relevant authorities, e.g. Sagnata v Norwich City Corporation [1971] 2QB 614. This is a highly relevant authority but it is harsh to criticise the court for cutting short any argument which has lasted for four hours without citation of, as it turns out, the key authority.

xxvi) As regards the May 2002 application for four licences the appeal was not dealt with by His Honour Judge Macmillan when he first gave judgment. However, Mr Slack for the WBC drew to the court's attention the fact that an appeal in relation to that application was also before them. The point on that application which Mr Kelly wished to make was that it was unfair for the WBC to be able to rely on the change that they had made even to their three year policy after that application had been made, and during the currency of an appeal in relation to the withholding of those licences. His Honour Judge Macmillan however dismissed Mr Kelly's appeal on this aspect because the court "felt bound by the orders of 18^th March and 5^th November 2002."

xxvii) Mr Kelly applied for permission to judicially review the Crown Court decision. Charles J refused permission on paper. Mr Kelly renewed the application which came on before Davis J on 3^rd February 2004. Mr Kelly did not appear to argue the matter, telephoning the court saying he had problems with his business. Davis J however did not dismiss the application because Mr Kelly had not appeared, and indeed granted him leave limited to one point. He was not prepared to give leave by reference to the allegations of procedural unfairness that Mr Kelly was making in relation to the hearing in the Crown Court. Davis J furthermore thought that the Crown Court were right not to "review" the validity of the WBC's policy and it was on that basis that he ruled that that disposed of the 17^th May 2002 four vehicle application. But he ruled that the 1991 and 1993 applications fell into a different category because they had been "remitted" by Laws J and the Court of Appeal, and the applications antedated the change in policy. He held that it was arguable that His Honour Judge Macmillan should not have viewed Mr Kelly's appeal as an attack on the three year policy, but should have looked at the applications which they should have considered prior to the change in policy without regard to that policy. Davis J clearly did not appreciate that there was a distinct point in relation to change of policy that could have been made in relation to the four vehicle application of 17^th May 2002, but in the context of this case where he did not have the assistance of counsel as we have had, he cannot be blamed for that.

xxviii) The application for judicial review then came on before Newman J on 25^th May 2004. Newman J clearly took a poor view of the way, as he thought, Mr Kelly had delayed in getting the WBC to reconsider the applications of 1991 and 1993. Mr Kelly would appear to have been his own worst enemy over the years in failing to act when he could have done and in taking points which were not his best points, and indeed taking such points as he did take, at too great a length. In the result the real point which he had became obfuscated and despite the fact that Mr Kelly on this occasion did have counsel, Newman J appears to have given Mr Kelly's case fairly short shrift. He took the view that the 1991 application had not been "remitted" (see para 10 of his judgment); he took the view that the letter from the WBC of 20^th December 1996 and Mr Kelly's failure to respond to it was fatal to Mr Kelly's judicial review application. He did not accept Mr Kelly's explanation that he did not need to respond because he had already made applications, one or possibly two of which had been remitted by the Court of Appeal to be heard or reheard by the WBC Newman J held it was not unreasonable for the council to take the view that, following the letter, Mr Kelly was no longer pursuing his applications once he failed to respond. Newman J looked at the delay between 1997 and 2001 and was of the view that such a period of delay posed an almost "insurmountable barrier" to the court considering judicial review. He was also critical of the period which followed between Mr Kelly gaining leave to appeal out of time from the Recorder of Liverpool in November 2001, while the challenge was being made to WBC's policy. That criticism was made despite the fact that it was at the WBC's behest that there was any postponement in the hearing of the appeal. Newman J was of the view that delays gave rise to "insurmountable difficulties". He did however look at the way that His Honour Judge Macmillan had approached the appeal, but he rejected the submission that there was any error in HHJ Macmillan's reasoning and his "blanket acceptance of the change [of policy]". He was of the view that the Crown Court's approach was right. It "cannot be criticised for applying the law which includes the policy."

xxix) Newman J, in the last paragraph of his judgment, was unclear as to whether the 2002 four vehicle application was before him or whether there was a fresh application for that aspect to be judicially reviewed. He, in any event, dismissed whatever Mr Kelly's application was in relation to the 2002 application.

xxx) Newman J refused permission to appeal. Application was made to this Court and came before Carnwath LJ on 4^th May 2005. It seems that Mr Kelly had put in fifty pages to support his application but he was lucky enough to be represented by Mr Colbey, who in short written submissions identified the points on which Carnwath LJ ultimately gave permission for an appeal to the full court. The two points identified by Mr Colbey were first that it was arguable that Laws J and the Court of Appeal had remitted the 1991 and the 1993 applications to the council for their reconsideration and that the applications had never been reconsidered; and second that the approach of the Crown Court in treating the policy as a complete answer to Mr Kelly's application was wrong in law. In that latter regard Mr Colbey referred to Sagnata v Norwich City Council (supra). He submitted that authority, which itself had relied on many previous authorities, demonstrated that the Crown Court should have applied an independent judgment as to whether and to what extent it was right to pay regard to the policy, having regard to the fact that it did not exist when the applications should have been reconsidered by the WBC. Mr Colbey further submitted that Newman J should not have taken into account delays prior to the Recorder of Liverpool extending time for the appeal to the Crown Court. He submitted that the judicial review was of the decision of the Crown Court and thus for delay to be relevant to a denial of judicial review it had to be delay following the decision of the Crown Court.

xxxi) Carnwath LJ gave permission to come to the full court on the basis that it was arguable that Mr Kelly had never had his applications considered and that it was arguable that the approach of the Crown Court was flawed.

Submissions

4. Mr Colbey pressed succinctly the same points before us as he had made to Carnwath LJ. He simply submitted that delays prior to the appeal coming on in the Crown Court were irrelevant to the question whether judicial review should be available. He submitted that on the wording of the judgments of the Court of Appeal quoted above, if on no other basis, it was clear that at least the 1991 application had been remitted to the WBC. It was in any event clear that the WBC had not considered the 1993 application. He submitted thus that there was no reason why Mr Kelly should respond to the December 1996 letter, having regard to the fact that he had already made applications to the WBC and had the benefit of an order of the court that the WBC should consider at least one of those applications. He further submitted on the basis of Sagnata that the Crown Court's approach in applying the policy in a blanket fashion was simply wrong. What the Court should have done was to have regard to the special circumstances of Mr Kelly's case and see to what extent it was fair to apply the policy which had been brought into being in 2002. He submitted that the conclusion should have been that it would have been unfair in relation to the 1991 application and indeed the 1993 application to apply the policy with any rigour, having regard to the fact that those applications should have been considered in 1996 or at latest in 1997. He submitted further that having regard to the fact that in relation to vehicles with existing plates, such vehicles had had their licences renewed from time to time, despite the fact that they were more than three years old, the right approach would have been to allow Mr Kelly's application adopting the new policy of deregulation but waiving the requirement that vehicles should be less than three years old, either from the dates of manufacture or the dates of registration. He also made submissions on the 2002 four vehicle application submitting that there was a separate and distinct point in relation to the change to the three year policy made during the currency of the appeal process in relation to that application.
5. Mr Edis QC also made succinct submissions. His primary submission was that Newman J's findings on delay were a complete answer to Mr Kelly's appeal. He submitted that it was on this ground alone that Newman J had dismissed the application for judicial review; that that was an exercise of discretion; and thus that this court should not interfere. In the alternative, his submission was that the letter of the 20^th December 1996 and Mr Kelly's failure to respond to the same was a complete answer to Mr Kelly's application for licences in 1991 and 1993. His submission was that the effect of the decision of Laws J and the Court of Appeal was to leave it to the WBC to take a decision in relation to unmet demand, which it had done in September 1996. It was then open to the WBC to invite applications, including applications from Mr Kelly, which they did by their December 1996 letter. If Mr Kelly did not respond, as he did not, it was then open to the WBC to treat Mr Kelly's 1991 and 1993 applications as withdrawn, which is what they did.
6. If the above submissions were unsuccessful, I did not understand Mr Edis seriously to challenge Mr Colbey's submission that the approach of the Crown Court was flawed insofar as it treated the three year policy adopted in 2002 as a complete answer to Mr Kelly's applications of 1991 and 1993. If he was wrong in his submissions he was however concerned as to what this court should do if it upheld Mr Colbey's submissions. In that regard he made two points as a preliminary. First, so far as the 1993 application was concerned it was, he submitted, not a valid application because it did not identify vehicles on which plates could be placed. In any event it was not an application which had been "remitted" by Laws J or the Court of Appeal. The only application remitted was the 1991 application. Secondly, so far as the 2002 four vehicle application was concerned, it was clear that Davis J had not granted permission to challenge the Crown Court's decision on judicial review.
7. He further submitted that if the Court of Appeal upheld Mr Colbey's submissions then, although very unattractive, the appropriate course was to remit the matter to the Crown Court. He put his submissions in this way. He said there were three possible alternatives so far as this court was concerned. First it could remit the matter to the WBC but neither side sought that for obvious reasons. Second the Court of Appeal could deal with the matter itself. That had obvious attractions to both sides since it would bring to an end this long-running litigation without a further hearing in the Crown Court, which itself might lead to further appeals. But Mr Edis submitted this court did not have all the material available to it, which a court or council considering issuing a licence should have. Thus he submitted as the third alternative remission to the Crown Court, which, however unattractive, was the correct course to take.
8. Mr Colbey, in response to these latter submissions of Mr Edis, simply submitted that this court should deal with the matter so as to bring to an end the long-running litigation and to save the costs and inconvenience of a further hearing before the Crown Court.

Discussion and Conclusion

9. There are many unsatisfactory features of the history of this case which have led to an application for licences made in 1991 only coming before the Crown Court on appeal in 2003. Some of the blame could undoubtedly be laid at Mr Kelly's door, but some cannot. There is no reason to go into who was more to blame for that delay, because however unsatisfactory that delay may be and whoever is at fault the following points are clear:-

i) First, this court is concerned with an appeal from the decision of Newman J, who was being asked to judicially review a decision of the Crown Court made on 11^th July 2003. Delay relevant to the question whether judicial review should still be available could only be delay since that decision. Rightly or wrongly, the Recorder of Liverpool had extended time for appealing. It was that appeal which came on before the Crown Court. It is only that appeal in relation to which there was an application for judicial review. Newman J was in my view simply wrong to take the delay prior to the appeal to the Crown Court into account in considering the remedy of judicial review.

ii) In agreement with Carnwath LJ when he gave permission to appeal, Newman J was in my view wrong in taking the view that Mr Kelly's 1991 application had not been "remitted" for reconsideration by the WBC. The language of the Court of Appeal is clear. In any event, as Carnwath LJ pointed out, the Recorder gave permission on the basis that the WBC should have reconsidered the 1991 application and the decision of the Recorder has never been challenged. On the other hand the 1993 application (whether valid or not – and there is no need to decide that point) had not been remitted and the 2002 application is not strictly the subject of any appeal before us, since it was not properly before Newman J.

iii) However eloquently Mr Edis put the point before us, the judge was wrong to place such reliance on WBC's letter of 20^th December 1996 and Mr Kelly's lack of response to it. Mr Kelly had made a valid application in 1991. The court had ordered its reconsideration. The WBC were simply not entitled to put Mr Kelly in the position of having to make another application in 1996 in order to have his 1991 application considered. What is more, the Crown Court's decision was not that Mr Kelly had withdrawn his application. Their decision was on the basis that that application was outstanding and was one which could not succeed because of the three year policy.

iv) Once that stage is reached, (i.e. that judicial review cannot be defeated by delay, and the Crown Court's decision must be considered on its merits), there is in fact no answer to Mr Colbey's submission that it was wrong to approach the appeal on the basis that WBC's change in policy was a complete answer. It may not be His Honour Judge Macmillan's fault that this point was never properly focused on because of the way Mr Kelly spoke for four hours without getting to it. But, nevertheless, the point is a good one and the Crown Court was guilty of an error in law.

10. The really difficult question is what flows from the above. The short answer would be remission to the Crown Court and there is force in Mr Edis' submission that in normal circumstances that would be the appropriate course. Remission to the WBC is clearly not an alternative option and the only other alternative is that this court tries to tackle the question as to what order the Crown Court should have made and make that order in place of the Crown Court.
11. Remission to the Crown Court is an unattractive proposition, having regard to the very lengthy and unfortunate history of the dispute between Mr Kelly and WBC. Remission would involve a further lengthy hearing. That would use up the resources of the court and would be extremely costly to both parties. Mr Colbey thus supported this court dealing with the matter and in truth Mr Edis got near to supporting this court dealing with the matter, but felt it his duty to point out the absence of the relevant material which anybody issuing licences should have before it issues the same. I am not going to go into the sort of material which this court does not have, because it is obvious that Mr Edis is right. How then should we proceed?
12. I have asked myself what order the Crown Court would be likely to make in a case of this sort. If Mr Kelly's applications had been considered prior to any change in policy Mr Kelly could not have claimed the right to ten or twenty licences. Indeed, it seems that owner drivers were getting one licence each when unmet demand was still the test. If now, after the change in policy, Mr Kelly can say that because of deregulation there is no limit on the number of licences that can be issued, he surely must be met with the three year policy also. He cannot have his cake and eat it.
13. What then is the answer? We should, I think, at this stage have some regard to the overriding objective of the CPR (CPR 1.1). What we are endeavouring to do is to deal with a case justly. We must have regard to "saving expense"; we must endeavour to deal with the case in ways which are proportionate (i) to the amount of money involved, (ii) to the importance of the case, (iii) to the complexity of the issues and (iv) to the financial position of each party. We must try to deal with the case expeditiously and fairly and allot cases only with an appropriate share of the court's resources, taking account of the need to allot resources to other cases. I accept that the overriding objective cannot give the court a jurisdiction that it otherwise does not have. But it seems to me that this court has the jurisdiction to substitute its order for the order of the Crown Court. The only problem lies in its appreciation of the fact that it has not, as it should have in an ideal world, all the material which the Crown Court might have.
14. I would reason a solution in the following way:-

i) The 1993 application could not have been actually "remitted" by Laws J or the Court of Appeal in 1995/1996. The 2002 application for four vehicles was not one on which Mr Kelly got leave to move for judicial review.

ii) It seems that while unmet demand was the criterion, the WBC, even when found to have been unjustified in their assessment, were only issuing licences, on the whole, to individuals. They certainly could not have been criticised for not granting Mr Kelly ten licences pursuant to his 1991 application. That said, however, clearly their assessment of fifteen vehicles in 1996 as meeting the unmet demand, could be criticised since in relation to 1997 the court held that once again they could not justify their view that there was no unmet demand, leading to a further twenty-five licences being issued.

iii) In the above context I have accordingly asked myself what is the maximum number of licences which Mr Kelly would have had issued to him by the WBC acting fairly and having regard to unmet demand. To a significant extent, the answer is a matter of impression. In addition to the factors already mentioned, I take into account the observations of Staughton LJ referred to in paragraph 3(vii) above. In my view he could never have got more than five licences.

iv) I have then asked myself whether there is any great harm going to be done to the interests of the WBC or the present licensees, or potential applicants for licences if Mr Kelly is granted five licences for vehicles, the subject of his 1991 application, now. The WBC says he may not use the vehicles for which those five licences would be granted. They say that he may sell those vehicles, as it seems he has his existing vehicles with licences. That as it seems to me is not a valid objection. He was always free to sell his vehicles with "plates" and if the WBC had considered his application when they should have done the vehicles which would have been granted licences pursuant to the 1991 application would have been amongst the vehicles which he is free to sell at the present time. The real concern of the WBC, and indeed of the public, must be that if five licences are granted in respect of these vehicles, the subject of a 1991 application, the effect will be to have elderly vehicles plying their trade. The question is whether there is some danger in allowing that to happen. As I understand the position there are existing old vehicles plying their trade, they being allowed to do so despite the change in policy in 2002 because they were vehicles licensed prior to that change of policy. Even in relation to those vehicles there are requirements that the same should pass an MOT test twice a year, and the WBC have applied conditions in relation to those vehicles and there is no reason why similar conditions should not be applied to vehicles granted a licence pursuant to the 1991 application. It seems to me that five further vehicles more than three years old, but to which conditions already applied to similar vehicles will apply, cannot be said to be likely to damage the interests of the WBC or other licensees or indeed other applicants for licences nor to be dangerous from the public point of view.

v) It is also possible to approach the matter by posing the question simply what number of licences would it be fair that Mr Kelly should have now in the light of (i) what he might reasonably have got under the unmet demand regime (ii) the fact that he took on WBC as recognized by Staughton LJ (iii) the fact that the unmet demand regime no longer applies (iv) his vehicles are all more than 3 years old, (v) there are many licensed vehicles which are more than 3 years old plying their trade. Taking account of all these factors as best one can, I would take the view that fairness seems to require 5 licences.

15. Is it right, having regard to the above considerations, to remit this matter to the Crown Court for a hearing over a number of days in order for that court to consider whether less than five licences should be granted? In my view there is a clear answer to that question. It would be quite out of proportion to the importance of the case, to the amount of money involved and to the financial position of each party to do so. Furthermore it would involve a use of the court's resources already over-utilized by the litigation between these two parties. This conclusion is reinforced by the fact that the Crown Court, even with all the further information it may have, will ultimately have to rely on its overall impression and decide how many licences Mr Kelly would have been awarded. It is not as if, by refusing to send this matter back to the Crown Court we would be depriving WBC and Mr Kelly of the opportunity to have a quantitatively reasoned and precise answer. This court should, in my view, substitute for the Crown Court's decision, which dismissed Mr Kelly's appeal, the grant of five licences to vehicles nominated in his 1991 application, provided those vehicles have passed their MOT test and comply with those conditions which are applied to vehicles of more than three years of age. So that there is no misunderstanding about the conditions to be applied, they should be those conditions that were originally applied to vehicles of three years or more in 1996 and as applied to those vehicles at the present time. I would be prepared to hear counsel's submissions on this latter aspect so that if possible further litigation between these parties can be avoided.
16. I would accordingly allow the appeal and substitute an order for the issue of five licences to Mr Kelly for vehicles, the subject of his 1991 application.

Lord Justice Dyson:

17. I agree that this appeal should be allowed for all the reasons given by Waller LJ. I also agree that we should substitute an order for the issue to Mr Kelly of licences for 5 of the vehicles which were the subject of his 1991 application. In the exceptional circumstances of this case, I consider that it is preferable that this court should decide on the appropriate relief, rather than remit the matter to the Crown Court or WBC. I wish to add a few words to explain how I arrive at the figure of 5 vehicles.
18. As Waller LJ explains, the Crown Court wrongly considered that the 2002 policy provided a complete answer to Mr Kelly's appeal. The court should have taken into account the fact that, in the circumstances of this case, it was unfair to rely on the 2002 policy to deny Mr Kelly's claim, since his claim should have been dealt with by WBC before that policy came into being. It is not in dispute that a licensing body (like any other public body) can lay down for itself a general policy to guide its decisions, but it must not fetter its discretion and should only apply the policy in an individual case if it is fair and just to do so: see, for example, Sagnata v Norwich Corporation [1971] 2 QB 614.
19. It is because it was unfair and unjust to Mr Kelly to apply the 2002 policy rigidly in his case that the decision of the Crown Court was wrong in law. By the same token, it seems to me that justice and fairness must be the lodestar which guides us to the appropriate relief in this case. As a matter of principle, I can see no other route to the solution.
20. The question, therefore, is how many licences it is now just and fair to award to Mr Kelly, taking into account all relevant circumstances. In my judgment, that is the only relevant question. Waller LJ's primary approach is to ask (i) what is the maximum number of licences that would have been issued to Mr Kelly if WBC had applied the unmet demand policy fairly and (ii) whether there is any great harm in granting that number of licences to Mr Kelly now. His alternative approach is to ask what fairness requires having regard to a number of specified relevant factors.
21. I readily accept that issues (i) and (ii) are relevant to what I consider to be the only question that arises. If Mr Kelly would not have received more than 5 licences under the superseded policy that should have been applied to him, that is a strong reason why fairness and justice require that he be awarded no more than 5 licences under the current policy. I doubt, however, how helpful it is to focus on the maximum number of licences that Mr Kelly would have been awarded under the superseded policy, rather than making an estimate of the actual number of licences that would have been awarded to him.
22. Applying the test of fairness and justice, I would hold for the reasons given by Waller LJ at paragraph 14(v) of his judgment (but also taking into account the prejudice suffered by Mr Kelly in having no further licences since 1991) that Mr Kelly is entitled to 5 licences.

Lord Justice Neuberger:

23. I agree that Mr Kelly's appeal against the order of Newman J must be allowed for the reasons given by Waller LJ. I also agree that we should substitute an order for the issue of licences to Mr Kelly for five of the vehicles (to be selected by him) which were the subject of the 1991 application. Since this is an unusual order for this court to be making, I shall briefly explain why it appears to me to be right.
24. As is clear from the judgment of Waller LJ, the history of litigation relating to applications by Mr Kelly to the WBC for the grant of taxi licences is quite extraordinary both for its duration and for the number of hearings. The consequences, in terms of delay in the grant of any licences, costs to the parties, and court time, have already been wholly disproportionate to the issues at stake, whether judged in terms of financial value or principle. Accordingly, we should, if at all possible, resolve all issues finally on this occasion, rather than remit any matter to the Crown Court for a yet further hearing with yet more evidence and argument as Mr Edis QC says we ought to order. Indeed the overriding objective would seem to me to require it.
25. Can we properly resolve the issue which Mr Edis contends should be remitted to the Crown Court, namely, the number of taxi licences which should be accorded to Mr Kelly? In my view, we can and should.
26. First, while the Crown Court may be in a better position to resolve that issue than we are, I am not convinced that that would necessarily be the case, and I am certainly convinced that the Crown Court would not be in a much better position than we are. The assessment involved cannot, of necessity, be quantitatively reasoned. It requires one to come up with a precise number of licences based on a number of factors, which are, in many cases, rather different in character, most of which are not quantitative in their nature, and the weight to be given to each of which is a matter of opinion. The exercise can therefore be said to be particularly difficult, whatever the state of the evidence.
27. Secondly, because of the history of this dispute, we have an unusual amount of evidence already available to us. We are therefore in a better position to resolve this sort of issue than this court normally would be. Thirdly, although WBC knew that Mr Kelly would be applying to us to determine this issue rather than to remit it, they have not been able to tell us, even in general terms, what evidence they would wish to rely on in addition to that already available. Fourthly, I am unconvinced that our decision will involve any injustice to WBC or any of its licensees, or, indeed, the potential passengers. In this connection, I adopt what Waller LJ says in paragraph 14(iv) of his judgment.
28. In the light of these factors, the extraordinarily protracted and expensive history of these proceedings, and the overriding objective, I have reached the conclusion that we can and should decide the issue. In that connection, I would characterise the issue as the number of licences which should fairly be accorded to Mr Kelly, not the maximum number which the Crown Court would award him if we remitted the issue. The issue we are deciding must, as a matter of principle and fairness to WBC, who are asking for what I accept would be the normal course, namely remission, be the same issue as the Crown Court would have to decide if we had remitted the matter.
29. In arriving at the conclusion as to the fair number of licences, I consider that the following factors are relevant. First, the number of licences Mr Kelly might reasonably have expected to have been awarded under WBC's original policy based on unmet demand. Secondly, the fact that Mr Kelly, alone of all potential licensees, took the risk of taking WBC to Court – the point made by Staughton LJ as mentioned by Waller LJ in paragraph 3(vii) above. Thirdly, the fact that the policy of WBC has now changed, so that unmet demand is no longer a requirement. Fourthly, the fact that the policy has now also changed so that vehicles over three years do not qualify, and Mr Kelly's vehicles are all over three years old; against this, it must also be borne in mind that there are many vehicles licensed by WBC which are more than three years old. Fifthly, there is the delay which Mr Kelly has suffered in having no further licences since 1991, whereas he should not have been in that position.
30. Taking into account these factors, which is perfectly easy in principle, but very difficult in terms of arriving at a precise result, I am of the view that five licences is the fair outcome.