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PostPosted: Wed Apr 09, 2014 1:07 pm 
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Luton Borough Council v Zeb (2014) QBD (Admin) 25/02/2014

A Crown Court's decision to award a taxi driver costs as he had suffered substantial financial hardship where a local authority had suspended his licence after complaints concerning his driving but none of the complainants had attended a court hearing could not be criticised, and the local authority should have realised that its original decision to suspend the licence was unsustainable in light of that.



A copy of this case would be nice

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PostPosted: Thu Apr 10, 2014 7:07 am 
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An interesting case as I'm currently "suspended" pending the Licencing Committee's review of their vehicle age policy and suffering financial hardship.


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PostPosted: Thu Apr 10, 2014 8:57 am 
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Page 1




Judgments






Neutral Citation Number: [2014] EWHC 732 (Admin)

CO/11003/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Tuesday, 25 February 2014




B e f o r e:

MR JUSTICE FOSKETT

Between:

THE QUEEN ON THE APPLICATION OF LUTON BOROUGH COUNCIL

Appellant

v

ZEB



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Respondent




Computer Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)




Mr Q Newcomb (instructed by Luton Borough Council) appeared on behalf of the Appellant

The Respondent appeared in person with the assistance of an interpreter.




JUDGMENT

(As approved by the court)




Crown copyright©




1. ​MR JUSTICE FOSKETT: The appellant local authority appeals by way of Case Stated against the
decision of Luton Crown Court (His Honour Judge Bridge and two justices) to order it to pay £2,500 by way of costs to the respondent. The decision under challenge was made on 31 January 2013, but it followed the hearing of the substantive appeal of the respondent, which was heard by the same court on 20 December 2012. On both of these occasions the respondent, a taxi driver, was represented by counsel. He has appeared before the court today in person with the assistance of an interpreter and has put forward various arguments in response to the appeal.



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2. ​Whilst in those circumstances I have not had the benefit of counsel's oral argument in response to the arguments advanced on behalf of the appellant, I have had the advantage of reading the skeleton argument lodged by his then counsel, Mr Nick Ham, dated 4 January 2013 in connection with the hearing to be heard on 31 January and I have also seen the arguments addressed on his behalf by counsel who appeared for him at the hearing on 31 January. I have therefore had the benefit of seeing the kind of argument that can be advanced against the appellant's position from a legal point of view as well as hearing what the
respondent himself has said.

3. ​The decision of the local authority that led to the proceedings before the County Court was made on 9 September 2011. As I have indicated, the respondent was a taxi driver and he was licensed in that capacity by the local authority.

4. ​During 2011 the local authority had received three complaints about the respondent's conduct as a driver. Basing myself on what appears in the Case Stated, I can summarise these complaints as follows. The first was on 13 February 2011. The male complainant was being taken by the respondent to an airport in the early hours of the morning when, according to the complainant, the respondent was stopped by the police because of the manner of his driving. The complainant said that the respondent had been driving too fast and was not looking where he was going. He also suggested other matters, including an attempt by the respondent to overcharge him.

5. ​The second matter arose on 21 August 2011. A female complainant said that she had to wake up the respondent at some traffic lights and his head appeared to nod on a number of occasions during the journey. At one point, according to the complainant, he had been driving in the middle of the road.

6. ​The third matter that occasioned complaint arose on 3 September 2011. A female complainant alleged that at some point the respondent tried to get into the back of the car with her and that he only desisted in doing so when she threatened to hit him with her keys. She also alleged that he verbally abused her. She was interviewed about this on 9 September by a licensing enforcement officer, Mr Colin Merricks, and she gave an account broadly consistent with the summary that I have recounted.

7. ​As far as the respondent was concerned, according to the papers that I have seen, he was interviewed about the first matter on 30 March 2011 when he denied the allegation. He was given a warning that it would remain on his file and told that further action might be taken if other matters were drawn to the attention of the Authority within the next 12 months. It does not appear that the second complaint was followed up until the third matter had emerged.

8. ​At all events, the local authority decided to suspend his licence with immediate effect on 9 September. This was pursuant to sections 61(1)(b) and 61(2)(b) of the Local Government (Miscellaneous Provisions) Act 1976. Although the Case Stated says that he was suspended as a result of all three matters, the letter confirming the decision taken seems to refer only to the second and third. The letter says that the serious nature of the complaints and the possible risk to members of the public caused the suspension decision. He was advised of his right of appeal to the Magistrates' Court. A little later he was interviewed under caution with an interpreter and a solicitor present. He denied the allegations.

9. ​The appeal that he brought was heard by the Luton Magistrates' Court on 17 July 2012. None of the lay witnesses who could speak to the various incidents to which I have referred attended court. Indeed the lady who made the third complaint had provided a further statement indicating positively that she was not prepared to attend court. She cited health problems and concerns about potential repercussions.



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10. ​The local authority relied upon hearsay evidence which, in appropriate circumstances, is permissible; see Leeds City Council v Hussain [2002] EWHC 1145 (Admin). The Magistrates' Court dismissed the respondent's appeal.

11. ​The respondent was not satisfied with that determination and he appealed to the Crown Court. The Crown Court allowed the appeal. In short, the Crown Court took the view that that the third complaint was the most serious complaint, but the documentary evidence as it stood was unsatisfactory. The Crown Court took the view that the complainant's account was unsatisfactory and unreliable, that aspects of it were inherently implausible and that there was some evidence that she suffered from mental health problems and alcohol related issues. Unless live evidence could be called in support, the Crown Court was of the view that this evidence could not be relied upon, constituting as it was untested hearsay evidence. The court gave a written judgment to that effect and concluded that the respondent that is the present respondent had satisfied the court on the balance of probabilities that the suspension decision was wrong.

12. ​The issue of costs then arose. Counsel then acting for the respondent applied for costs against the local authority. He sought a figure of just over £4,250. As I have indicated, the Crown Court awarded £2,500. It is that decision that the local authority seeks to challenge. There is no challenge to the quantum of the award as such, but to the principle of making an award in the present case.

13. ​The Case Stated conveniently summarises the reasons for making the award in principle in two
propositions. First, the local authority ought not to have resisted the appeal to the Crown Court once it was evident following the appeal to the Magistrates' Court that the various witnesses would not be attending to give live evidence and, secondly, that a failure to make an order for costs would cause substantial hardship to the respondent.

14. ​The principles applicable are not in issue. The power to order costs is set out in section 64(1) of the Magistrates' Courts Act 1980 and the use of that power in this general context was considered by a Divisional Court consisting of the then Lord Chief Justice, Lord Bingham of Cornhill, and Silber J in Bradford Metropolitan District Council v Booth 10 May 2000. In fact, that case involved liquor licensing, but in the subsequent case of R (Perinpanathan) v City of Westminster Magistrates' Court [2010] 1 WLR 1508 the Court of Appeal held that the principles articulated by Lord Bingham were more widely applicable. It was not suggested on the respondent's behalf before the Crown Court that they did not apply to such a case as this. Lord Bingham said this:

"I would accordingly hold that the proper approach to questions of this kind can for convenience be summarised in three propositions:

1. Section 64(1) confers a discretion upon a Magistrates' Court to make such order as to costs as it thinks just and reasonable. That provision applies both to the quantum of costs (if any) to be paid, but also to the party (if any) which should pay them.

2. What the court will think just and reasonable will depend on all of the relevant facts and circumstances of the case before the court. The court may think it just and reasonable that costs should follow the event, but need not think so in all cases covered by the subsection.

3. Where a complainant has been successfully challenged before justices an administrative decision made by a police or regulatory authority acting honestly, reasonably, properly and on grounds that reasonably appear to be sound, in exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both (i) the financial prejudice to the particular complainant in the particular




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circumstances if an order for costs is not made in his favour; and (ii) the need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged."

15. ​The only gloss placed upon that summary by the Court of Appeal in the other case to which I have referred can be seen in paragraph 41 of the judgment of Stanley Burnton LJ when he said this:

"Lord Bingham CJ stated that financial prejudice to the private party may justify an order for costs in his
favour. I think it clear that the financial prejudice necessarily involved in litigation would not normally justify an order. If that were not so, an order would be made in every case in which the successful private party incurred legal costs. Lord Bingham CJ had in mind a case in which the successful private party would suffer substantial hardship if no order for costs was made in his favour."

It is to be noted that the expression used in that passage was "substantial hardship."

16. ​In R (London Borough of Newham) v Stratford Magistrates' Court [2012] EWHC 325 (Admin), Mr George Leggatt QC, as he then was, said at paragraph 38 that the effect of these authorities was that the default position in this situation is that there should be no order as to costs unless additional circumstances favourable to the successful party are identified. Mr Newcomb has drawn my attention to paragraph 31 where Mr Leggatt says this in relation to the principles set out by Lord Bingham:

"Indeed it seems to me that they have in fact been somewhat strengthened in their formulation in the most recent authorities which make it clear in particular that the starting point and default position where a party opposes a decision of a public authority has been successful is that no order for costs should be made and secondly that when Lord Bingham referred to financial prejudice to the successful private party as potentially justifying a departure from that position what is required is evidence that that party would suffer exceptional and substantial financial hardship."

17. ​In my judgment the use in that passage of the word "exceptional" must simply be taken to mean that the hardship should go beyond the normal consequences of incurring costs in the litigation and was not intended to strengthen yet further the principle articulated by Stanley Burnton LJ in the passage to which I have referred. If there was any inconsistency as between what was said in the Newham case and the case of Perinpanathan then plainly the latter must prevail.

18. ​The short point taken by Mr Newcomb is that there was nothing in the local authority's conduct that
justified a departure from the default position and that the financial hardship to the respondent was not
substantial in the sense required by the approach of the Court of Appeal in Perinpanathan. That was the nub of his argument before the Crown Court which is recorded in the transcript as follows:

"The reality is that in litigation of this nature (taxi licensing appeals) whereever someone's licence is refused or revoked there will undoubtedly be a risk or a likelihood that they will not be able to work for at least a significant period of time. There is an inevitability that if they wish to appeal they will incur legal costs and whilst I accept that Mr Zeb will have lost an amount of income this is not a case of substantial hardship outside of the normal course of these cases when one balances, as the court must, the interests of justice and the robust approach of a licensing department against the financial hardship of prejudice that may have occurred for Mr Zeb, in my submission in this case the former should win out and in those circumstances the starting point or default position ought to be applied by the court and no order for costs ought to be made in this case."




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19. ​In the ruling given by the Crown Court, Judge Bridge referred to the cases to which I have referred and said this:

"Applying the principles to this appeal we accept that the initial decision made by the Borough Council to suspend Mr Zeb's licence was made honestly, reasonably, properly and on grounds which reasonably appeared to be sound in the exercise of its public duty. We are, however, of the view that as matters progressed and Mr Zeb made first an appeal to the Magistrates' Court and then in the event of that appeal failing made a further appeal to the Crown Court it was necessary for the council to continue to keep the case under active review and in particular once the matter went before the Magistrates' Court and on that hearing the most relevant witness, the complainant of the incident which is the focus of these proceedings [the witness is named] when she failed to attend the Magistrates' Court hearing the council should have at that stage considered whether in the event of an appeal to the Crown Court being initiated it should then have considered whether it should have withdrawn the decision to suspend Mr Zeb's licence.

So we do take the view therefore that in the processes adopted by the local authority there has not been complete compliance with the exercise of its public duty although there has been, certainly at the earlier stages, substantial compliance with that duty.

We accept that Mr Zeb has suffered substantial financial hardship as a result of this process. He gave up his previous employment to become a private hire driver. When he was granted his licence at the end of November of 2010 he worked as a private hire driver for some 9 months before he was suspended and following his suspension he has been unable to return to his previous employment and has been in receipt of benefits since then. He has been unemployed and has suffered significant debts in the interim. Those debts including, of course, the legal costs which he has undertaken to pay those he has instructed to pursue these proceedings.

We accept in determining whether there should be an order for costs, as I have already explained, that it is important to balance the factors of the public interest and in particular that public authorities should not be discouraged from actively exercising their public functions.

Having considered all of the submissions that we have this in case and balancing all of the factors as we are required to do, we have come to the decision that there should be an order for costs in this case as a matter of principle."

The Crown Court then went on to give its reasons for arriving at the sum of £2,500.

20. ​The essential question is whether that conclusion of principle can fairly be criticised. In my judgment, it cannot. Whilst no evidence was given in this case before the Crown Court about the respondent's financial position, the court considered conscientiously its decision on the merits of the appeal, about which there is no criticism, and accordingly the court will have had a good feel for where the justice of the argument on costs lay. They applied the correct principles and balanced the relevant factors and, in my judgment, the decision made was well within the parameters of a proper decision, judged by reference to the parameters set by the cases to which I and the Crown Court have referred.

21. ​I do not see a decision dismissing the appeal in this case as in any way placing difficulties in the way of a local authority exercising its powers and duties in regard to licensing taxi drivers. The original decision to suspend the respondent's licence cannot really be criticised given the nature of the complaints made, certainly the third. All that the Crown Court concluded was that with the passage of time and the unwillingness of the witnesses to come and support what they had said, the original decision became



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unsustainable. The Crown Court said that there should have been an appreciation of that at an earlier stage and I do not see how it can be said that that conclusion was wrong. It was certainly a decision which the Crown Court was entitled to come to on the evidence before it. I do not see this case as deciding anything other than whether the modest award of costs in this case was wrong in principle. It has depended on its own circumstances just as every other case will depend on its own circumstances.

22.​However, for the reasons which I have given the appeal is dismissed.

23.​Mr Newcomb, I am grateful for your assistance.

24.​MR NEWCOMB: Thank you my Lord.

25. ​MR JUSTIC FOSKETT: (Addressing the interpreter) I am very grateful for your help. I take it there are no other applications of any sort.


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PostPosted: Thu Apr 10, 2014 9:44 pm 
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Most grateful Mr MCF.

Love the idea of a mush and his interpreter beating the system.

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PostPosted: Thu Apr 10, 2014 10:00 pm 
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Sussex wrote:
Most grateful Mr MCF.

Love the idea of a mush and his interpreter beating the system.


yeah - and getting compensation for being an obvious idiot helps too :lol:

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PostPosted: Fri Apr 11, 2014 4:31 am 
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captain cab wrote:
Sussex wrote:
Most grateful Mr MCF.

Love the idea of a mush and his interpreter beating the system.


yeah - and getting compensation for being an obvious idiot helps too :lol:

I think the issue here is the council believed they were god, and the law didn't apply to them.

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PostPosted: Fri Aug 15, 2014 6:56 pm 
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I won a TUPE claim against Kent CC a few years go because they said TUPE doesn't apply in Kent!


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