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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Raphael, R (on the application of) v Metropolitan Police Service (Rev 1) [2010] EWHC 1502 (Admin) (10 June 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/1502.html Cite as: [2010] EWHC 1502 (Admin), [2011] PTSR 152, [2010] BLGR 896

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		St Dunstan's House 133-137 Fetter Lane London EC4A 1HD
		10 June 2010

1. JUDGE MACKIE: The main issue on this application is whether the licensing sub-committee of the London Borough of Islington had authority to decide a review of the applicant's nightclub licence. That issue raises, briefly, questions under the Licensing Act 2003, Section 101 of the Local Government Act 1972, and Section 13 of the Interpretation Act 1978, as well as a point about delegation of authority by a council officer. Although there are two defendants and an interested party, only the second defendant, the London Borough of Islington, has participated. As one would expect, the first defendant, Highbury Corner Magistrates Court, has not been involved and there has been nothing from the interested party, the Chief Officer of Police for Islington.
2. The background is that proceedings were issued on 3 April 2009. Supplementary grounds were put forward in July 2009. Permission was refused on all grounds on the papers by Belinda Bucknell QC sitting as a Deputy High Court Judge on 14 September 2009. Permission was granted following a renewal hearing before His Honour Judge Pearl QC, but this was limited to what he described as the delegation point only. That point is split into a series of related issues.

The facts

3. I have, as well as a bundle of the relevant documents, a series of witness statements. There is a witness statement from PC Mark Usher, who was responsible for the Magistrates Court's proceedings, to which I will refer. There were three witness statements from Mr Niall Forde, who works for Islington, one from the claimant's solicitor, and two from the defendant's solicitor. Most of the facts, if not agreed, are not greatly in dispute. I will have to step back in time to 2005 in a minute, but the immediate facts can be summarised as follows.
4. The claimant, Mr Raphael, owns a nightclub, Orleans, near Finsbury Park station, which he has been running for about 15 years. The nightclub had a 24-hour licence until the decision now challenged. The immediate events leading up to that decision were as follows. On 3 June 2008, PC Usher applied to Islington for a review of the nightclub's licence.
5. In June or July 2008, Islington's licensing officer, Mr Forde, decided that he was satisfied that Islington had received a relevant representation within the meaning of section 52(7) of the Licensing Act 2003. As a result, on 28 July, the licensing sub-committee considered the matter and decided by a majority of two to one to amend the nightclub's licence and reduce the hours of operation from 24 hours a day to 12 noon to 3.30 am. On 5 August 2008 the sub-committee's decision was communicated in writing and on 26 August the claimant lodged a notice of appeal in the Highbury Corner Magistrates' Court. The matter came up on 5 January 2009 and the District Judge upheld the decision and dismissed the appeal. On 3 April 2009, as I say, these proceedings were issued, and there were the procedural developments which I have already mentioned.

Legal Framework

6. The legal framework within which this case is brought is as follows. The relevant statute, as I say, is the Licensing Act of 2003, which received Royal Assent on 10 July of that year. Section 3(1) of the Act defines a licensing authority to include a council or a London Borough, like Islington. Section 6(1) of the Act provides that each licensing authority must establish a licensing committee. Section 7(1) then provides as follows:

"All matters relating to the discharge by licensing authority of its licence and functions are, by virtue of this subsection, referred to its licensing committee and, accordingly, that committee must discharge those functions on behalf of the authority."

7. Section 9(1) of the Act permits the licensing committee to establish one or more sub-committees, consisting of three members of the committee. Section 10 then provides as follows:

"(1) A licensing committee may arrange for the discharge of any functions exercisable by it --

(a) by a sub-committee established by it, or

(b) subject to subsection (4), by an officer of the licensing authority."

The section provides in subsection (3) that:

"... the sub-committee may in turn arrange the discharge of function concerned by an officer [... and that] arrangements under subsection (1) or (2) may provide for more than one sub-committee or officer to discharge the same function concurrently."

So you can appoint more than one officer to do something, if you want to.

8. The provisions which I have mentioned came into force on different dates. Sections 3 to 5 came into effect on 16 December 2003 and Sections 7 and Section 10 on 7 February 2005. The Act includes a framework for applications for review of a premises licence, and this is set out in sections 51 and 52. Those sections were not brought into force until November, I think 24 November 2005. Sections 51 and 52 govern the licence review process which took place in the summer of 2008.
9. Section 51(1) gives an interested party or a responsible authority power to apply to the relevant licensing authority for a review of the licence. Section 51(4) allows the relevant licensing authority at any time to reject any ground for review specified in an application if it is satisfied that the ground is not relevant to one or more of the licensing objections or that it is frivolous or vexatious. The authority must, before determining an application, hold a hearing to consider that application and any relevant representations.
10. Section 52(3) obliges the authority, having regard to the application and any relevant representations, to take such of the steps mentioned in subsection (4) as it considers necessary for the promotion of the licensing objectives, and these include modifying the conditions of the licence.
11. Section 52(7) provides that relevant representations are representations that are relevant to one or more of the licensing objectives and that meet the requirements of subsection (8). Those requirements include this:

"If the representations are made by an interested party (who is not also a responsible authority) and they are not, in the opinion of the relevant licensing, authority, frivolous or vexatious."

12. In addition to those provisions, I should mention others relied upon by counsel for the parties. Section 101(1) of the Local Government Act 1972 provides for delegation and a local authority may arrange for the discharge of any of their functions by, amongst other things, a committee of the authority. Under Section 101(2):

"... where by virtue of this section any functions of the local authority may be discharged by a committee of theirs, then unless the local authority otherwise direct, the committee may arrange for the discharge of any of those functions by a subcommittee or an officer of the authority."

13. One further statutory provision came into play during the course of the hearing, and that is Section 13 of the Interpretation Act 1978. That section, headed "Anticipatory Exercise of Powers", provides as follows:

"Where an Act which or any provision of which does not come into force immediately on its passing confers power to make subordinate legislation or to make appointments, give notices, prescribe forms or do any other thing for the purposes of the Act then unless the contrary intention appears [inaudible] the exercise any instrument thereunder may be made so as to come into force at any time after the passing of the Act so far as may be necessary or expedient for the purpose:

(a) Of bringing the Act or any provision of the Act into force, and.

(b) Of giving full effect to the Act or any such provision at or after the time when it comes into force."

The facts bearing on the legal framework

14. I turn next to the relevant facts, bearing on those provisions. It is common ground that the determination under challenge was made in July 2008 by a licensing sub-committee. On 26 January 2005, a meeting of Islington's Licensing Committee took place and a report was prepared by officers entitled "Appointment of Licensing sub-committees Terms of Reference and Scheme of Delegation". The purpose of this report was to provide for the appointment of the licensing committee and to approve their terms of reference and to approve the delegation scheme functions.
15. The report contains a number of recommendations, including that four licensing sub-committees be established, within identified terms of reference; that members of those sub-committees be appointed; and that the scheme of delegation of functions attached as an appendix to the report be approved. Those were duly approved. The appendix lists various specified licensing functions and then identifies which are sought to be delegated to sub-committees and which to be delegated to an officer, in this case to "Assistant Director Environment Conservation (Public Protection)".
16. Two particular licensing functions are relied on. The first is described as "application to review authority's licence/club premises certificate" and that is sought to be delegated to sub-committees in "all cases". The second is described as "decision on whether a complaint is irrelevant, frivolous vexatious, et cetera", and this is sought to be delegated to the assistant director in all cases.
17. At the licensing committee meeting on 26 January 2005, the report was, in effect, adopted. The process from Islington's standpoint is set out in three witness statements from Mr Niall Forde, who is employed as a Licensing Officer with Islington and has occupied that role since August 2004. He describes the process by which the application for a review of the premises was made following, amongst other things, a complaint. The complainant provided a supporting representation to an application by the police for the review. Mr Forde satisfied himself that the representation was a relevant representation within section 52(7), to which I have already referred. He says:

"I was also satisfied that it was not a frivolous or vexatious representation. As the representation was received from a local resident and in response to an application for a review of a premises licence made by the police as responsible authority on the grounds of serious crime or disorder, it was decided to withhold all the personal details of the interested party."

18. He also deals, in another of his witness statements, with the process. He refers to the very large number of licensing applications received by Islington, some 3800 since the 2003 Act came into force, including 650 applications for reviews of premises determined by sub-committees. He produces various documents which the authority says constitute the relevant delegated authority to him and to Mr Jan Hart, the Assistant Director of Public Protection.
19. A matter relied upon by Islington is that there were also committee meetings on 26 May 2005, 17 May 2006, 22 May 2007 and 22 May 2008 which approved the establishment of licensing sub-committees with specific members. Each meeting proceeded on the basis that the scheme of delegation has already been lawfully put into effect.

Submissions by the Parties

20. That then leads to the submissions by the claimant. Ms Richards submits that Section 7 and most importantly Section 10 were not in force on 26 January 2005, when Islington's licensing committee purported to delegate licensing functions to sub-committees and to the assistant director, because those provisions did not come into force until 7 February 2005, 12 days later. Section 51 and 52 did not come into effect until months later. She submits that it therefore follows that the purported delegation on 26 February 2005 was invalid because as at that date the licensing committee had no power to delegate licensing functions under the 2003 Act whether to sub-committees or to officers. In consequence, the licensing sub-committee which took the decision in 2008 lacked authority and the decision was a nullity.
21. She also contends that the Licensing Officer, Mr Forde, did not have delegated authority to decide what was or was not frivolous and vexatious under 52(7). She submits that this is a core part of the overall decision-making process, as one sees from the statutory framework. She places emphasis on the fact that when the licensing committee in January 2005 purported to delegate, it did not have that power; that the licensing committee purported to delegate that particular function to the assistant director alone and did not, as it could have done, appoint more than one officer to do so. She also submits that the assistant director has no power to delegate a function to other employees even if it is validly delegated to him. Only licensing committees and sub-committees have the power to arrange the discharge of licensing functions by officers. She submits that, both in relation to this and to other matters, the meetings in 2005, 2006, 2007 and 2008 were irrelevant, because those decisions were not concerned with any question of delegation of functions to officers and the review of licensing was not expressly covered in any subsequent report. She also says that the documents exhibited by Mr Forde are neither here nor there, because not only, on her submission, do they not show valid delegation but, as a matter of principle, the Act did not permit or empower the assistant director to sub-delegate the licensing function conferred upon him to other officers.
22. Mr Nigel Giffin QC and Mr Gary Grant, for Islington submit that those submissions are misconceived. They accept that Section 10 was not brought into force until 7 February 2005 but they do not accept that as at 26 January 2005 the committee had no power to delegate. They rely upon the provisions of Section 101, which I read out earlier. They submit that there never was a time when a licensing committee lacked the power of delegation to a sub-committee. Until 7 February 2005, it had power under Section 101. Between 7 February and 24 November 2005, it had both that power and the power of delegation under Section 10. Thereafter, it had solely the power under the 2003 Act. So far as delegation to a sub-committee is concerned, there is no material difference between the power conferred by Section 101 and that conferred by Section 10.
23. They accept that the committee probably was under the misapprehension that Section 10 of the 2003 Act was already in force. It is quite clear to me that they were under that misapprehension. But the submission of the borough is, "So what?" The fact that the committee's power to delegate was contained in Section 101 rather than Section 10 was of no materiality. They submit that a misapprehension by a local authority about the source of the power under which it is acting does not itself invalidate the decision that it takes; it only does so if that has caused the authority for example to act in excess of its powers or not to have regard to relevant considerations.
24. They place reliance on the first instance decisions in Somerset CC ex parte Fewings and in Brentwood BC ex parte Peck as holding that it did not matter that the authority failed to consider the statutory source of its power, because it did not as a result fail to take into account any relevant considerations. Their submissions are encapsulated in the following words of Moore-Bick LJ in the Court of Appeal decision R (Risk Management Partners Ltd) v Brent LBC [2010] LGR 99 as follows:

"I accept that there may be cases in which it is necessary for a body which derives its powers solely from statute to identify clearly the particular power under which it purports to act if more than one is available. That will be so when different criteria exist in relation to different powers and where there may be doubt about the basis on which the decision is taken."

25. Islington also relies upon the fact that between the coming into force of Section 10 and the taking of the sub-committee decision in the summer of 2008, there were the various committee meetings which I have mentioned. The borough's submission is that it is perfectly obvious that the committee must be taken, by necessary implication, to have adopted that scheme of delegation going forwards, otherwise it would have been passing a meaningless resolution on each occasion. They also say that they would have submitted, if necessary, that this amounted to a ratification of past delegated decisions. They also submit that, where everyone has proceeded for years on the basis that the necessary delegation had occurred it would be inappropriate to grant any relief that might otherwise have been available.
26. Islington disputes the claims about Mr Ford's alleged lack of authority to take the decisions which he took. Counsel submit that this is a point of even more arid technicality than the claimant's first argument. They say there is no suggestion that the complainant's representations were irrelevant or out of time and that noone could possibly have considered them frivolous or vexatious. They point out that an authority can consider all the representations it receives if it wishes to do so. Then they point to a series of cases to substantiate this point: in the real world, the way in which local authorities function is to delegate powers to the relevant senior officer, not expecting that he or she will deal with all such matters personally but rather on the basis that they will be exercised by staff in that officer's department.
27. At the hearing, Mr Giffin made a submission based on Section 13 of the Interpretation Act which, as he says, was a simple one. The submission is this. Section 10 of the Licensing Act confers power to "do any other thing" for the purposes of the 2003 Act, that is to say, to arrange for a licensing committee's functions to be discharged by a sub-committee or officer. Therefore the Section 10 power could be exercised at any time after the passing of the 2003 Act, so far as is necessary or expedient for the purpose of giving full effect to any provision of the Act at or after the time when it would come into force.
28. That argument was responded to by Ms Richards in her two helpful supplementary notes. She submits that Section 13 should be narrowly construed, permitting as it does the exercise of powers before the date upon which it has been determined that the statutory provisions come into force. She submits that it could not have been necessary or expedient on 26 January 2005 for the borough to exercise the power of delegation in Section 10 to give full effect to the Act or to the section, bearing in mind that the underlying functions which were sought to be delegated would not be coming into force until 24 November 2005 and a statutory power of delegation would be available as soon as 7 February 2005.
29. She also submits that there is in this case a contrary intention apparent from the legislation. She relies upon the provisions in the 2003 Act, providing for the sections and schedules to come into force in accordance with orders to be made. She relies on the fact that the various commencing orders deliberately brought different parts of the legislation into force at different times, and also on various other matters, set out in her skeleton argument, which she says point to a scheme for bringing the Act into force in a particular way, which is of itself evidence of a contrary intention. She also submits that the phrase "to do any other thing for the purpose of the Act" would not cover a delegation of power from a licensing committee, relying principally on principles of statutory construction, and the ejusdem generis rule.
30. Mr Giffin and Mr Grant respond to those submissions. They say that it was expedient for a scheme of delegation to be in place before the council's substantive functions under the Act came into force, so that the officers and sub-committees could begin dealing with the relevant matters without hiatus. Once that is accepted, it does not matter whether the delegation arrangements were made a short time or a long time in advance. Second, they contend that there is no contrary intention appearing from the Act. They say that the existence of commencement powers in an Act is present in almost every case, and they point to similar arguments being put forward and rejected in the case of Mundowa in the Court of Appeal. They say that delegating a function plainly is "any other thing," and submit that the authorities relied upon by Ms Richards do not make good her submission that the guidance available from the courts is that Section 13 and its predecessor should be interpreted in a narrow or limited fashion.

Decision of the Court

31. In January 2005, the licensing committee appointed sub-committees, in the belief that it was doing so under the 2003 Act. That is clear, despite faint suggestions from Islington otherwise. At that time, the licensing committee had a power to delegate under Section 101 to do precisely what it thought it had done under the 2003 Act.
32. It is clear from the Somerset and Brentwood cases that where an authority fails to consider the statutory source of the power, that does not matter if it does not as a result take into account in relevant considerations. In the Court of Appeal in Risk, the court, in the judgment of Moore-Bick LJ, with which his colleagues agreed, reached substantially the same view, where there was a question whether an authority had acted under one specified section or another.
33. Ms Richards placed reliance on the decision of Moses J in R (British Association of Shooting and Conservation Ltd) v Sefton MBC, where he said this, at paragraph 30:

"During the course of argument I was referred, partly, I fear, on my own instigation, to a number of other provisions in the 1972 Act and in subsequent Acts empowering the local authority to encourage visitors, recreational facilities, tourism and economic development. I do not refer to those provisions in any greater detail because it is plain that in making its decision the committee did not regard to these powers. It does not seem to me possible to justify a decision by reference to different statutory powers which the authority did not have in mind when reaching its conclusion. Indeed, it seems to me dangerous to justify a decision by search for an alternative statutory authority after the decision subject to challenge. It is dangerous because those provisions may themselves require different statutory considerations to be taken into account."

34. Thus the learned judge questioned whether it was possible to justify a decision by reference to different statutory powers, but this was on the basis that those different provisions might require different considerations to be taken into account. Sefton is a first instance decision, and this observation is obiter, albeit from a judge of particular distinction in this field. It seems to me clear, looking at the authorities and the reasoning behind them, that the position is, if I may respectfully say so, precisely that identified by Moore-Bick LJ. In this case, the competing provisions are both what at the hearing I called "vanilla"; there is no question of the committee deciding not to delegate or to delegate differently because it proceeded under one provision or another. The committee clearly wished to take this step and in trying to do so it had the same power under a different statute. It would be over-formalistic and quite wrong to thwart the committee's decision in this way.
35. It follows that Section 101 can and would, if necessary, have validated the decision. There is also the question of Section 13. The existence of the timetable for bringing an Act into force is, it is suggested, the appearance of a contrary intention. When one looks at the Act of 2003, not of course at the later statutory instruments, the existence of commencement provisions is not evidence of contrary intention. Those provisions are not inconsistent with or contrary to the need or desire by an authority to take preparatory steps before a statute comes into force. It may well be "expedient" to take those steps in the timescale adopted by the committee in this case; the section uses the word "expedient" to cover what may not be strictly necessary, it says "necessary or expedient". While matters might or might not have been more efficiently dealt with at a different time or over a different timetable, that is not a relevant consideration.
36. The use of Section 13 or, one is tempted to say, falling back on Section 13, is no doubt uncommon but that is no reason for its provisions not to be invoked from time to time. That is why it is there. It is true that there is no case law on Section 13 and little on its predecessor. The absence of case law on a provision can mean several different things or nothing, but that is no reason to adopt a particularly narrow or restrictive approach to the interpretation of this statute. The appointment of a sub-committee by the licensing committee under Section 10 of the 2003 Act is the "doing of any other thing" for the purpose of the 2003 Act. Section 13 enabled that power to be exercised any time after the passing of that Act.
37. I do not accept the related submission by the claimant that the licensing committee did not until May 2005 have power to exercise functions under the 2003 Act. This submission arises from the fact that in May 2005, the terms of reference of the licensing committee were changed from:

"The licensing committee shall have responsibility for all licensing matters under the relevant legislation"

To:

"This committee is established under the Licensing Act 2003 to exercise all licensing functions as defined by the Act and any other related matters which may lawfully be delegated to it."

38. The fact that the later change made the committee Licensing Act 2003-specific does not mean that it lacked the necessary power before then. There is no reason to construe strictly the prior, broad wording under which the committee acted.
39. If these factors did not apply, the applicant still has to deal with the fact that the committee, in May 2005 and each of the following three years, approved the establishment of licensing committees and the appointment of members on the understandable assumption that the scheme for this delegation was in effect. I do not see how the fact that the specific issue of the power to delegate was not raised (and it would have been odd if it had been) detracts from the fact that at all these meetings the members proceeded on the assumption that the powers were in effect. Indeed, if they had known of any alleged defect in the grant of powers, they would obviously have wanted to put it right and done so. The committee repeatedly adopted and ratified the scheme of delegation.
40. I turn next to the claim that Mr Forde did not have delegated authority to carry out delegated functions under section 52(7). That subsection, and others, spares the sub-committee from having to consider material which in the opinion of the authority is frivolous or vexatious. It is a filter to spare the members having to consider all sorts of dross. The claimant says that the delegation of that power was to the assistant director and not to Mr Forde. The submission has a superficial attraction because, of course, at least in local government, the starting point is that the person on whom a power is conferred will exercise it personally. The claimant submits that the assistant director had no power to delegate and that the papers produced do not show that that has been done.
41. This submission is, it seems to me, comprehensively demolished in the written skeleton argument of Mr Giffin and Mr Grant. The claim can be shortly dealt with by reference to the judgment of Turner J in Prytherch v Conwy Borough Council, with Waste Recycling Group plc as the interested party, which is case number CO/1354/2001. The learned judge said this, at paragraph 15:

"It was submitted that the common sense of the situation was summed up in a passage in the judgment of Shearman J, as he was, in Cheshire CC v the Secretary of State for the Environment, where he said:

'The multitude of tasks which were entrusted by standing orders to the County Secretary and Solicitor is such that it is inconceivable that the council intended that all those functions should be attended to by one person or that he himself should make the relevant value judgments himself in respect of each of them.'

"I find myself in respectful submission of the obvious good sense of Shearman J's observation. It is one thing, as in Walton, for there to have been no delegation at all and for the decision taken without it to have been quashed. It is otherwise fair for there to have been formal delegation at the head of a department and for the actual decision to have been taken by a person working in that department who was informally the delegatee and answerable to that head. It then becomes a matter for the court to construe whether or not the intended scope of the delegation by the council's standing orders extended to what must be an everyday and necessary occurrence if a department is to be able to function efficiently. It plainly was."

42. It is unimaginable that the members of the committee would expect the assistant director personally to sift and distinguish the actual from the potentially frivolous and vexatious material. The informal delegation of this task by the assistant director to Mr Forde was appropriate and lawful. Indeed, if one asks oneself whether those taking the delegation decision had intended the delegation to the assistant director to be to him or her alone, their answer, to borrow a contractual law analogy, would have been, "No, of course not, we would not have expected him to deal with it personally, it should be delegated appropriately, efficiently, and economically down the line."
43. Furthermore, it has not even been suggested that the relevant representation was frivolous or vexatious. That consideration makes this aspect of the challenge purposeless. Indeed, even if the representation had been frivolous and vexatious, which it is not, the sub-committee would still have had the right to see it if it had so wished.
44. It follows that, for the reasons I have given, this challenge fails. The appointment of a licensing committee was required by the 2003 Act. Of itself that was a straightforward and uncontroversial matter. No criticism can or has been made of the substance of the decision, as opposed to the question of the timing. While accepting the force of Ms Richards's submissions that judicial review is concerned with process, and the other, similar submissions she makes in paragraph 13 of her reply skeleton argument, the fact remains that there had been no suggestion that these events have unfolded to the particular prejudice of the applicant. He has not been affected by some unfairness of approach or by consideration of irrelevant matters or even, in truth, by some accident of timing. These factors confirm my view that this application must be refused, which it is.
45. Finally I should say that I sent a message, which I hope reached both counsel yesterday, to inform the parties of what the outcome of this decision would be, because I did not want to trouble the applicant to come here unnecessarily to sit through lengthy and disappointing news.
46. MR GRANT: My Lord, thank you for that judgment. I think in fairness, on the transcript "Miss Russell" ought to read "Miss Richards".
47. JUDGE MACKIE: Oh, I beg her pardon, that's throughout, isn't it. Rather than apologise to her, which of course I do, would the transcript kindly note that.
48. MR GRANT: My Lord, as for ancillary orders, may I first of all apply for an application for costs against the appellant in this matter, the total sum for Islington Council is £23,597, that's to cover both today's hearing, the substantive hearing, as well as preparation for the permission hearing, as well as my attendance at the permission hearing. My attendance was £1,000 out of that figure, and you may think this is one of those cases where it's worthwhile, because at the permission hearing a number of matters were whittled down, which meant your Lordship could concentrate on the sole issue decided today.
49. That costs figure compares favourably to the applicant's costs figure of £30,103, albeit they had to prepare the bundle, which was substantially more than Islington's, even though Islington instructed both leading and junior counsel, which you may think was reasonable in the circumstances, given the potential for wide-reaching consequences of any adverse judgment.
50. There had also been a letter that I can hand up to your Lordship by the council seeking to settle this matter.
51. JUDGE MACKIE: Yes.
52. MR GRANT: So your Lordship can see that fair warning was given to the appellant that the misapprehension at the permission hearing having been resolved, Section 101 clearly had effect, a judgment that --
53. JUDGE MACKIE: It's a shame Judge Pearl didn't know that, isn't it.
54. MR GRANT: It was an error, of which I played a part, for which I apologise.
55. JUDGE MACKIE: I am not casting blame, it is just unfortunate.
56. MR GRANT: So as of 18 December, when that letter was written, that was well before the vast majority of our costs were racked up, so there was full and fair warning to the applicant but he still decided to push on to today, and indeed he has made a commercial decision to have done so.
57. In addition to our costs application for these proceedings, we ask for the stay on the costs ordered in the Magistrates' Court against the appellant to be lifted, that stay was imposed by His Honour Judge Pearl at the permission hearing. Those are the two ancillary orders we ask from your Lordship.
58. MR PATEL: My Lord, I don't think that in principle I can oppose an application for costs but what I do say is that this is not -- there are many points which the claimant wishes to make in terms of the costs, the appropriateness of particular costs, in particular as to whether two counsel or -- whether the claimant should be paying for two counsel being instructed by the defendant. The defendant can quite properly take a view as to the implications of the case for itself and instruct two counsel but that is another matter to whether it expects to recover those costs from the claimant.
59. My primary submission, my Lord, is that this is a matter that should be dealt with by detailed assessment, not by summary assessment, at which stage these points and others can be taken by the various parties as to the amount of costs and the appropriateness of the costs that have been incurred.
60. My Lord, the second point I make is that in relation to the costs of permission, or up until permission, it was Islington's own error, in effect, in not pointing out section 101(15), pointing out that, which my learned friend has frankly admitted, which meant that the case may well have got past that stage, so in any event I say that such costs, until permission, ought not to be granted against the claimant, and there is a perfectly respectable argument --
61. JUDGE MACKIE: But when it was pointed out --
62. MR PATEL: No, I don't make that submission, I make it up until that point.
63. JUDGE MACKIE: You say they were under a duty to draw it to your attention?
64. MR PATEL: They were certainly under a duty to draw it to the court's attention.
65. JUDGE MACKIE: So is your side.
66. MR PATEL: No, it wasn't an argument we were relying upon.
67. JUDGE MACKIE: Yes, okay.
68. MR PATEL: It was an argument that they were relying upon, with respect.
69. JUDGE MACKIE: Yes.
70. MR PATEL: Again, as I said, this might be a point better taken on detailed assessment rather than summary assessment, given the figures that are involved.
71. The other application -- and in addition, I don't think I can object in principle to the stay being lifted on the Magistrates' Court, that stay was clearly granted on the basis of this application and this application has now been determined.
72. Subject to this one point, which is that we do seek permission to appeal from your Lordship's judgment, we seek it on both bases, firstly that there is a realistic prospect of success on any appeal and secondly that there is some other compelling reason for appeal to take place. I do not need to rehearse, my Lord, the arguments that have been raised by the claimant in relation to Section 101 and Section 13, in particular, of the Interpretation Act, your Lordship has set them out fully in the judgment and you have set out your reasons for why you think in fact those arguments can be relied upon by Islington in this case. All I say is that the arguments that the claimant raises, and, in particular, the arguments that the claimant set out in the second note, as to why such arguments didn't avail Islington, do raise a realistic prospect of success and which ought to be considered by the Court of Appeal.
73. The other aspect of a permission to appeal application is obviously some other compelling reason and, as your Lordship pointed out, Section 13 of the Interpretation Act, and certainly that part of the case, has not been considered before by the courts, and whilst your Lordship has given it a particular interpretation and said that Islington can rely upon such a section, it would, in our submission, be a reason for an appeal to take place, so that that provision can be the subject of the Court of Appeal's learning as well.
74. My Lord, unless there are any other further matters, those are the questions I raise.
75. JUDGE MACKIE: Thank you very much.
76. MR GRANT: My Lord, can I just make one correction, that's in relation to Islington raising the Section 101 point. It was raised in our response to the supplemental grounds as early as August 2009, and you can see it at page 55 of the bundle, it was raised that early and it was very late the night before at the permission hearing that the other side made a submission that it was not yet in force, sadly that was not checked by the time of the morning, so it proceeded on that incorrect basis.
77. Insofar as the application for permission to appeal, your Lordship could clearly have made this decision even without reference to Section 13 of the Interpretation Act, simply on the black and white law of Section 101, which we say is a simple point and a decisive one, one we've pointed out as early as -- certainly as late as December 2009 with the letter. We say this is not a case where there is confusion or it needs clarity from the appeal court, and permission to appeal ought not to be granted.
78. JUDGE MACKIE: Thank you very much.
79. First there is the question of costs. It is submitted to me that I should not assess those today, because of the factors which have been drawn to my attention and other ones. I accept the submission that costs be assessed but there needs to be a payment on account, an appropriate payment on account will be £15,000, payable within 14 days, because, subject to something unexpected emerging in the course of the proceedings before the costs judge, it seems to me unlikely that the borough is going to recover less than that.
80. So far as permission to appeal is concerned, if the matter had been decisive, I would have given permission to appeal on Section 13, essentially for the reason Mr Patel gives but, since the case failed comprehensively on other, more conventional grounds, it is not appropriate, it seems to me, to give permission to appeal. If, of course, the Court of Appeal takes a different view, then so be it, and the claimant can, of course, now apply to a Lord or Lady Justice if he wishes to do so.
81. Unless there is anything else, I thank you all for your help.
82. MR GRANT: I think your Lordship has the advantage over us.
83. JUDGE MACKIE: Thank you very much.
84. MR PATEL: My Lord, I am sorry to call you back in.
85. JUDGE MACKIE: That is all right.
86. MR PATEL: I am instructed to ask for a stay on the order for costs. Could I have a couple of minutes to take proper instructions on that and then make the application.
87. JUDGE MACKIE: Yes. It is best if I leave while you do that.
88. MR PATEL: I can go outside, it is up to your Lordship --
89. JUDGE MACKIE: Then they have to sit here and suffer, so I will rise briefly -- if you could make it relatively brief, I have other things waiting.
90. MR GRANT: My Lord, while you are here. Can I raise one more matter shall I know there are local authorities up and down the UK waiting for this judgment, because they have taken a similar course to Islington. Would you order that a transcript is prepared, obviously checked by your Lordship, and distributed to the parties?
91. JUDGE MACKIE: Is it really of any interest?
92. MR GRANT: Great interest.
93. JUDGE MACKIE: Okay, the answer is yes, but obviously I will need to check it first.
94. MR GRANT: Thank you.
95. JUDGE MACKIE: Thank you very much. I will come back in a minute.
(A short adjournment)
96. JUDGE MACKIE: Mr Grant, on behalf of the second defendant, has applied for two ancillary relief orders.
97. Firstly, there is the question of costs. It is submitted to me that I should not assess those today. I acceded to the submission that there should be a detailed assessment of costs by a Costs Judge. However, there needs to be a payment on account, and the appropriate payment on account will be £15,000. Such Costs Order is stayed for 28 days.
98. Secondly, there is the question of the staying of the Costs Order imposed by HHJ Pearl. The stay on the Costs Order imposed by HHJ Pearl QC at the Highbury Corner Magistrates' Court on 9 December 2009 in favour of the second defendant to be lifted.  Such order to take effect 28 days from today.
99. Finally, a transcript of the judgment is not to be provided to the parties at public expense. A transcript can, of course, be provided to all the parties at their own expense.
100. [The judge later made it clear through the Administrative Court office that the transcript would not be at public expense.]