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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 >> Wilson v Ashford Borough Council [2010] EWHC 639 (Admin) (09 March 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/639.html Cite as: [2010] EWHC 639 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		9th March 2010

1. LORD JUSTICE LEVESON: This is an appeal by way of case stated from a decision of the East Kent Magistrates sitting at Ashford whereby on 17th August 2009 they ordered the appellant Judith Wilson to pay the respondent, Ashford Borough Council, the sum of £5,721 by way of costs incurred by the Council in relation to an appeal brought pursuant to section 81(7) and paragraph 1(3) of Schedule 3 of the Environmental Protection Act 1990 to the Crown Court at Maidstone from a decision of the Magistrates upholding an abatement notice issued under section 80 of that Act.
2. The appeal was abandoned more than three days before the date of the hearing and the issue for this court is whether the statutory power to award costs that arises pursuant to section 109 of the Magistrates' Court Act 1952 ("the Act") is affected either by Rule 12(5) of the Crown Court Rules 1982 as amended but soon to be superseded by the Crown Court Rules 1989 ("the Rules") and which still govern civil appeals to the Crown Court and by the practice of the Crown Court. In particular, that practice is to identify that if three clear case of abandonment of appeal is not given, costs may have to be paid.
3. The facts are specified in the case as follows:

"(a) On 5th October, 2007 the Respondent served an abatement notice on the Appellant pursuant to Section 80 of the Environmental Protection Act 1980 in respect of an audible intruder alarm at premises at 37, Raymond Fuller Way, Kennington, Ashford, Kent of which the Appellant was the freehold owner.

(b) On 16th October, 2007 the Appellant served a notice of appeal against the abatement notice to East Kent Magistrates' Court.

(c) On 3rd March, 2008 the East Kent Magistrates' Court dismissed the Appellant's appeal and ordered the Appellant to pay the Respondent's costs.

(d) On 4th March, 2008 the appellant served notice of appeal to the Crown Court at Maidstone against the decision of the East Kent Magistrates' Court on 3rd March, 2008.

(e) By way of a notice dated 8th April, 2008 the Crown Court sent to the Appellant, the Respondent and the Clerk to the Justices of East [Kent] Magistrates' Court a notice that the appeal would be listed for hearing at the Crown Court on 9th June, 2008 with a time estimate of two days. That notice included the words 'To abandon your appeal:... Notice must be given at least three clear days (not counting Saturdays, Sundays and Bank Holidays) before the date of the hearing. If you do not or if you do not appear at the hearing you may have to pay costs'. [The notice was signed by an officer of the Crown Court]

(f) The Appellant did not receive the said notice of hearing and only learnt of the hearing date on 3rd June, 2008 when her solicitors were contacted by the Respondent.

(g) The Appellant was not available to attend the appeal hearing on 9th and 10th June, 2008 and decided to abandon her appeal, relying on the words set out in paragraph (e) above as avoiding any liability for costs since she gave her notice of abandonment more than three clears days before the appeal hearing date.

(h) On 3rd June, 2008 the Appellant served notice abandoning her appeal, within three clear days of the appeal hearing on 9th and 10th June, 2008.

(i) On 5th June, 2008 the Crown Court recorded that the appeal had been abandoned and made no order as to costs, the Respondent having made no application for costs.

(j) From 15th July, 2008 there was correspondence between the Respondent and the Appellant in which the Respondent indicated that an application be made for costs.

(k) On 21st January, 2009 the Respondent sent a schedule of costs to the solicitors acting for the Appellant in the Crown Court appeal.

(l) On 5th March, 2009 the Respondent applied for an order against the Appellant pursuant to section 109 of the Magistrates' Courts Act 1980."

4. The argument before the Magistrate, repeated before this court, is that the Crown Court notice dated 8th April 2008 should be interpreted as meaning that, if the appellant did abandon her appeal more than three working days before the proposed hearing, she would not be at risk of costs, that she had a legitimate expectation of that outcome and that, in those circumstances, bearing in mind that the Crown Court assurance should bind the Magistrates' Court, it would be unfair and unreasonable both as a matter of law and in the exercise of the discretion vested in the court by section 109 of the Act to make an order for costs; alternatively, it is an abuse of process to entertain or grant such an application. The respondent contended that the notice gave no such express assurance and, in any event, section 109 gave the clearest discretion to award costs in these circumstances which no notice could abrogate and certainly not to the detriment of a third party who was not responsible for any assurance of any sort. It was further argued that the appellant had been legally represented throughout and ought to have been advised as to the effect of the statutory provisions.
5. The Magistrates concluded as follows:

"(a) Section 109 of the Magistrates' Courts Act 1980 gives the court a clear discretionary power to award costs on the abandonment of an appeal in the Crown Court.

(b) the normal rule in civil proceedings is that the unsuccessful party should pay the costs of the successful party.

(c) The notice sent by the Crown Court dated 8th April, 2008 did not expressly state that the Appellant was not at risk of an order for costs even if she served notice withdrawing her appeal more than three working days from the proposed hearing date.

(d) The Crown Court notice dated 8th April, 2008 did not give any legitimate expectation to the Appellant that she would not be liable for costs and there was no abuse of process."

The case then goes on:

"Accordingly we ordered the Appellant to pay £5,721 in costs to the respondent."

It is unclear whether that sum represented or included any costs which arose after notice of abandonment of the appeal but no appeal on quantum has been mounted and there are no facts in the case which assist on that issue.

6. In the circumstances, the questions posed for the Administrative Court are:

"(a) Whether an application under Section 109 of the Magistrates' Courts Act 1980 was precluded given the wording in the notice sent by the Crown Court dated 8th April, 2008 in circumstances where an appeal in the Crown Court is abandoned at least three clear days before the appeal hearing?

(b) Whether an application under Section 109 of the Magistrates' Court Act 1980 and an award of costs under that section amounted to an abuse of process in light of the wording in the notice sent by the Crown Court dated 8th April, 2008 on the basis of the notice giving rise to a legitimate expectation on the part of the Appellant that no order for costs would be made if she abandoned her appeal more than three clear days before the date of the appeal hearing?

(c) Whether we were unreasonable in exercising our discretion to award costs in light of the wording of the notice sent by the Crown Court dated 8th April 2008 on the basis of the notice giving rise to a legitimate expectation on the part of the Appellant that no order for costs would be made if she abandoned her appeal more than three clear days before the date of the appeal hearing?

(d) Whether our decision was correct in law?"

The law

7. I start with the provisions of the Crown Court Rules relating to abandonment of an appeal. Rule 11 provides that an appellant may abandon an appeal without leave if he gives notice at least three days before the appeal hearing; less than three days before the hearing, he requires the leave of the Crown Court. Rule 12 deals with the jurisdiction of the Crown Court to award costs between the parties and is in these terms:

"12(1) Subject to the provisions of section 109(1) of the Magistrates' Courts Act (powers of magistrates' courts to award costs on abandonment of appeals from magistrates' courts) ..., no party shall be entitled to recover any costs of any proceedings in the Crown Court from any other party to the proceedings except under order of the Court.

(2) Subject to ... the following provisions of this Rule, the Crown Court may make such order for the costs as it thinks just.

...

(5) No order for costs shall be made on the abandonment of an appeal from a magistrates' court by giving notice under Rule 11.

..."

Thus Rule 12(5) precludes the Crown Court from awarding costs on an appeal abandoned at least three days before the hearing but it is important to underline that Rule 12(1) is specifically subject to Section 109 of the Act. That provision is in these terms:

"(1) Where notice to abandon an appeal has been duly given by the appellant-

(a) The court against whose decision the appeal was brought may issue process for enforcing that decision, subject to anything already suffered or done under it by the appellant; and

(b) The said court may, on the application of the other party to the appeal, order the appellant to pay to that party such costs as appear to the court to be just and reasonable in respect of expenses properly incurred by that party in connection with the appeal before notice of the abandonment was given to that party."

That power is, of course, discretionary.

8. There is no question of the subordinate legislation contained within the Crown Court Rules abrogating the primary provisions of the Act and I, for my part, have no doubt that the proper construction of the legislative provisions derives from the fact that, more than three days before the hearing, an appellant can abandon an appeal without leave; thereafter, he or she requires leave. If leave is not required, there is no purpose in bringing the parties to the court for a hearing. Thus, if costs are the only issue, Section 109 provides that the Magistrates can deal with the matter: if it were otherwise, as Mr Flanagan argues, it is difficult to see how Section 109 would ever bite because in any other case, leave being required, costs could be dealt with by the court at that Crown Court hearing. That view accords with that expressed by the editors of Stone's Justices Manual (2009 edition paragraph 1-6083), who in relation to rule 12(5) note:

"The power to order costs lies with the magistrates' court under the Magistrates' Courts Act 1980, s.109(2)."

Thus the jurisdiction between the courts is explicable and consistent.

9. I must deal with an observation of the Divisional Court which appears to contradict that approach. In R v Crown Court at Guildford [1988] 87 Cr.App.R 265, the Court was dealing with an appeal which was not abandoned prior to three days before its hearing but which was in fact heard. Having dealt with the issue which was the subject of the appeal, Bingham LJ made the point that leave could be abandoned not later than three days before the day fixed for the appeal and referred to rule 12(5) of the Crown Court Rules. He went on at page 270:

"The position, therefore, appears to be this. If notice is given before the time stipulated, an appellant may abandon his appeal as of right, and if he does that, he is at no risk as to costs. If, however, he wishes to abandon, but does not give notice within the stipulated period, he may apply to abandon, but requires the leave of the court in order to do so."

10. On the face of it, Bingham LJ's observation as to absence of risk as to costs provides some support for the submissions which Mr Broatch advances in this case. However, in my judgment, the particular issue with which this court is concerned did not arise for decision in that case and, although even observations of Bingham LJ obiter justify the very greatest of respect, they do not fully reflect the statutory provisions, including those set out in section 109(2) of the Act, which does not appear to have been cited to the court. As a matter of law, therefore, I have no doubt that the respondent is correct to argue the Magistrates have a jurisdiction to award costs.
11. What then is the meaning and effect of the notice of hearing which the Crown Court, by an administrative officer, issued and upon which the Magistrates found that the appellant relied when deciding to abandon her appeal on the basis that she was not available to attend the two day hearing? Mr Broatch argues that the clear meaning of the relevant words is that if an appellant does abandon the appeal before the three day period, that appellant would not be at risk of an adverse order. Although I entirely agree with the Magistrates that the notice did not expressly state that an appellant would not be at risk of an adverse order for costs if abandoning more than three days before the proposed hearing date, for my part, I would accept that it was not unreasonable for an appellant reading the notice, and unversed in the provisions of the Crown Court Rules and the Magistrates' Courts Act, to make an assumption to that effect. But I would equally accept that, if reliance was to be placed on that assumption, confirmation would first be sought from the lawyers who had acted throughout and presumably were still acting. After all, the appellant had been the subject of an adverse order for costs in the Magistrates' Court and it would be odd, given that further costs would have been incurred by the Council, for them not to want to recover those costs if the matter was not to be pursued. For her solicitors, it would have been a simple matter to research the law: as I have said, Stone's Justices Manual makes the position clear or at the very least identifies the risk that the respondent to an appeal will argue to the contrary. Thus, to that extent, although I do not go as far as the Magistrates, my conclusion does not, in itself, make a practical difference to the outcome.
12. The second ground is a criticism of the application by the Magistrates of what is described as the normal rule as to costs. Mr Broatch argues that the rule is one of practice and submits that the underlying error is to equate abandonment of the appeal with the appellant having lost the appeal so as to be the unsuccessful party. First, he argues that she was not the unsuccessful party: she did not pursue her appeal not because of any concern as to the merits but because she relied on the notice. Looking at the matter through the eyes of the Council, however, she challenged the abatement notice, lost before the Magistrates, instituted an appeal but then decided not to pursue that appeal, notwithstanding that she had commenced it. She did so for her own reasons. They had been put to the expense of defending the abatement notice and had not been successfully challenged. The Magistrates had to hold the balance between the parties.
13. Secondly, he argues that the normal practice is not really applicable to regulatory proceedings where the powers as to costs are governed by the individual statutory regimes. In my judgment, there is no merit in this point. First, the appellant well knew that an unsuccessful challenge was likely to lead to an adverse order for costs: that is what had happened in the Magistrates' Court and clearly represents this particular jurisdiction. Second, the statutory regime in this case, including the Act, was brought into play by the Environmental Protection Act 1990, both in relation to the Magistrates' Court and the Crown Court and did have a costs regime which included section 109 of the Act.
14. Mr Broatch next argued that the appellant had a legitimate expectation that no order for costs would be made. He relies on the summary by Bingham LJ in R v Inland Revenue Commissioners ex parte MFK Underwriting [1990] 1 WLR 1545 at page 1569H in these terms:

"If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. If in private law a body would be in breach of contract in so acting or estopped from so acting a public authority should generally be in no better position. The doctrine of legitimate expectation is rooted in fairness. But fairness is not a one-way street. It imports the notion of equitableness, of fair and open dealing, to which the authority is as much entitled as the citizen."

The significance of this dictum is in the qualified terms in which it is explained. The doctrine prohibits one party from relying on strict rights which it has represented would not be enforced, leading the other party to act to his or her detriment. From the premise that public authorities should be in no better position, the concept of legitimate expectation has grown, but only as a generality - "it would often be unfair". In this case, there is no question of the court suggesting that it would not enforce rights for its benefit to the detriment of the appellant; the court is entitled unaffected by any costs order: it is a third party which is affected, namely the local authority. The court is simply not in a position to impact on the rights of the local authority which has expended costs and by statute is entitled to pursue them. Mr Broatch suggested that the court was offering the parties, or more particularly the appellant, what he described as "a deal" articulated in this way: "if you, the appellant, abandon your appeal early, thereby saving the court time, you will avoid an order for all costs incurred by the respondent to this appeal". I do not accept that the law permits the court to make such an offer and neither do I accept that anyone who understood the statutory arrangements which set up and operate the courts would believe that it did. It is worth underlining the notions of fairness upon which legitimate expectation is based. In my judgment, it is quite simply inconceivable that it could be considered that an official of the Crown Court could bind a judicial decision either of the Crown Court or the Magistrates' Court.

15. We were referred to authorities which deal with the abuse of process of criminal prosecution, whether because a suspect of crime has been cautioned or received some undertaking that he would not be prosecuted. For my part, I do not find those very different circumstances helpful in this case. Neither do I consider it arguable that, even if there was an implied representation, its implementation did not interfere with the statutory duty of the court. Although Mr Broatch says that section 109 is discretionary only so that to dismiss an application for costs would not be contrary to the legislation, such an approach entirely ignores the obligation to the court to approach such an application between the parties judicially.
16. I deal with one further argument which flows from it. Mr Broatch submits that, as the Magistrates expressly found reliance by the appellant on the pronouncement, the abandonment of her appeal was to her detriment. He submits that doubtless it could have been adjourned to be heard at a future date. He goes on that, had she been successful she would have recovered her costs and also set aside the adverse order for costs made against her in the Magistrates' Court. These were chances which she gave up by not pursuing her appeal. What she did not do, however, was either to seek to adjourn her appeal or, alternatively, to reinstate it on the basis that she abandoned it on a false premises. R v Crown Court at Knightsbridge ex parte Commission of Custom and Excise [1986] Crim LR 194 identifies the jurisdiction to permit an argument that abandonment is a nullity in certain circumstances. Looking at the parallel jurisdiction in the Court of Appeal Criminal Division, see R v Medway [1976] QB 779, possible arguments for withdrawing a notice of abandonment can be based on mistake, misapprehension on the part of the appellant and the like. It does not appear that any of these considerations were brought to mind notwithstanding the intimation of an application for costs which, according to the case, was as early as 15th July 2008.
17. Mr Broatch then submits that to allow the local authority to pursue an application for costs represented an abuse of the court's process. Once again, that is to confuse whatever criticism might be made of the court with the position of the respondent local authority. There is no question of abuse of process by the local authority in pursuing an order for costs which section 109 permitted. No person representing the authority, either actually, ostensibly or in any other way, had made any such representation. The application had to be determined in accordance with the merits of the matter between the parties. In that regard, I accept that the general merits of the appellant's position might have impacted on the discretion of the court. It may be that costs incurred after notice of abandonment could have been challenged, which would not have been possible if the case had gone to court, because leave was required to abandon after the three day time limit. No information as to the circumstances in which the sum ultimately ordered was reached has been provided to us and there is certainly no suggestion the Magistrates made any error of law in their approach to determination of quantum. The case specifically refers to the discretion of the court, albeit without spelling out how that discretion was approached or exercised. If a challenge was to be made on that matter, care should have been taken to supplement the case with the relevant facts for the decision of this court.
18. I do not pretend that I do not feel sympathy for the appellant, if, as the Magistrates found, she abandoned her appeal on a false premise of law and I would certainly direct that this judgment be sent to those responsible for the creation of Crown Court forms for consideration of how the relevant form (which may apply both to civil and criminal appeals) might be improved. The truth of the position, however, or more accurately the risks which the appellant faced, were or ought to have been clear for her legal advisers to discover. The Magistrates were bound to consider the application for costs under section 109 on its merits and in my judgment were right to reject the submission that legitimate expectation or abuse of process should have caused them to reject the application in limine.
19. In the circumstances, I would answer each of the questions posed by the Magistrates in the negative and dismiss the appeal.
20. MR JUSTICE CRANSTON: I agree.
21. MR FLANAGAN: My Lords, there is an application for costs. A schedule has been served and I have one to hand.
22. LORD JUSTICE LEVESON: Let me see. (handed)
23. Who prepared the bundle, Mr Flanagan?
24. MR FLANAGAN: The appellants. My Lord, as to quantum, can I say that my learned friend's schedule is over double.
25. LORD JUSTICE LEVESON: I am not at all surprised, because, if he prepared the bundles, then that is exactly what he suspects. I am just a bit concerned about five and a half hours work on documents. What work did your solicitors have to do on the documents?
26. MR FLANAGAN: Could I briefly take instructions?
27. LORD JUSTICE LEVESON: You better had. (pause)
28. MR FLANAGAN: My Lord, three principle matters: preparation and comments on the case stated itself; then instructions to counsel, as counsel was not previously instructed and before the Magistrates; and, finally, consideration of the bundles prepared by the appellant.
29. LORD JUSTICE LEVESON: Yes, all right. Well, Mr Broatch?
30. MR BROATCH: Well, I have lost, so I am then going to try to make observations about the quantum. Your Lordship has anticipated our comment: we simply could not understand 5.6 and the solicitor sitting behind me, we would have suggested that at most that was two hours, which would, I think, reduce that to 520 and not 1,456. As to the rest, it does seem, once -- the highest grade is a grade A, I think that is a London solicitor, grade A. It does seem -- whether it was necessary to have a top grade solicitor attending to the matter all the way and it is not perhaps correct. But, apart from the 5.6 hours, which your Lordship has already picked out, those are our observations.
31. LORD JUSTICE LEVESON: Thank you very much. Do you want to say anything, Mr Flanagan?
32. MR FLANAGAN: Nothing, my Lord.
33. LORD JUSTICE LEVESON: Thank you. (pause)
34. I think, Mr Broatch, in the Divisional Court it is probably not unreasonable for a grade A solicitor to attend. We will order that the appellant pay £3,500 towards the costs of the respondent.
35. Thank you very much.