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QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
SCHIEMANN LJ, MOSES J
11 NOVEMBER 1997
11 NOVEMBER 1997
A Fraser-Urquhart for the Appellant
R Green for the Respondent
JW Godfrey & Co, Herts; Trivedy & Virdi, Middlesex
SCHIEMANN LJ
Postermobile plc appeals by way of Case Stated against the decision of the Brent Magistrates' Court made on 3 February 1997 to refuse Postermobile's application to stay a prosecution against it on the basis that the prosecution was an abuse of process.
The background to the matter was this. In June and early July 1996 some 25 informations were laid by the London Borough of Brent alleging the unlawful display on 4 June 1996 of posters at two sites in the immediate vicinity of Wembley Stadium. The alleged offences took place during the Euro '96 football tournament. It was common ground that the advertisements had been erected at the beginning of Euro '96 and were removed at the end of Euro '96, and that whilst displayed had enjoyed neither express nor deemed consent as required by the Town and Country Planning (Con-trol of Advertisements) Regulations 1992.
The Case reads as follows:
". . .
2. We heard the said informations on the 3rd February 1997 and found the following facts:
A. That in June 1995 the appellant company instructed a Mr Timothy Derek Jones Thomas of the Thomas partnership for advice concerning planning for temporary ad-vertisements during Euro '96.
B. In July/August 1995 Mr Thomas contacted Brent Planning Department to discuss planning for temporary advertisements. He was advised by the Planning Department on more than one occasion that this and all issues concerning Euro '96 were being dealt with by a Steering Group and that he should 'contact a Mrs Jean Shackleford'.
C. That on 27/9/95 a meeting was held at Brent House between Mr Thomas (Adviser on planning, valuation and advertising rights) acting for Postermobile, Mr Jonathan Paul Lewis (Director of Postermobile), Mrs Jean Shackleford (Euro-project co-ordinator for London Borough of Brent) and Mr Clifton Jackson (Contracts and Events Manager for London Borough of Brent).
D. That at that meeting the question of planning was raised and officers of the London Borough of Brent represented to the appellant company that planning consent was not required for temporary advertisements of one month or less but that if the advertise-ments were to be up for a longer period of time express consent would be required.
E. That the appellant company relied upon this representation and left the meeting with the impression that consent was not required for the display of the posters for one month.
3. It was contended by the appellant that:
A. The respondent conducted itself in such a way as to bring justice into disrepute.
B. The evidence was that the appellant company had attended a meeting with officers from the London Borough of Brent who made representations to it that planning con-sent was needed for the display of advertisements for one month.
C. Temporary advertisements such as these are almost unheard of. The evidence was that Mr Thomas had not dealt with temporary consents before and had never been in-structed to obtain displays for one month. It was wrong to prosecute in this most rigor-ous way.
D. There was no duty on the appellant company to check the accuracy of those repre-sentations and no reason why they should not be believed.
E. To prosecute was an abuse of the process of the court; the appellant company were entitled to rely on what they had been told.
4. It was contended by the respondent that:
A. At no time were any representations or undertakings given that temporary permits were not 'required and that prosecution would not take place'.
B. That the appellant company could have checked the accuracy of the respondent's representations and as such any representations made were not binding on the re-spondent's ability to prosecute.
C. That the appellant instructed Mr Timothy Derek Jones Thomas, an incorporated valuer and advisor on planning, valuation and management of advertising rights.
It was open to Mr Thomas to check or confirm the representations made but he failed to do so.
D. The appellant company was a commercial organisation with access to specialist ad-vice which had relied on council employees without planning experience and in no po-sition to make representations on planning.
5. We were of the opinion that:
A. It was the intent of the appellant company to approach the respondents concerning consent to display advertisements and that the appellant company were referred to ap-parently inexperienced local authority employees.
B. It was still reasonable to prosecute because the appellant company should not have relied solely on the oral advice given by the inexperienced representatives of the Lon-don Borough of Brent and should in fact have verified this advice in view of their own experience and standing in this field as well as the professional expertise to Mr Thomas.
C. The respondent had not manipulated or misused the process of the court so as to de-prive the appellant of protection by the law or to take unfair advantage of a technicality.
And accordingly we found no abuse of process.
6. On the basis of that finding the appellant company changed its plea to one of guilty to all twenty five informations and did not proceed with its defence.
Question
7. The question for the opinion of the High Court is:
'A. Whether the appellant company having been advised by officers of the London Borough of Brent that planning permission was not required for the display of the post-ers, the subject of the prosecutions, it was an abuse of process subsequently to prose-cute the appellant'."
The Council had never asked the Appellants to remove the advertisements whilst they were up. They launched straightaway into a prosecution. It seems clear that the decision to prosecute was taken by the Council's legal department on the basis that no such advice had been given to the of-ficers. I am prepared to assume that on that basis the decision to prosecute without first contacting the company and finding out what had happened was not unlawful. The question before the Magis-trates, however, became rather different once they concluded that the advice had indeed been giv-en. The question before them then became: was it an abuse of process to launch a prosecution, given the facts which had been found by the Magistrates?
Speaking for myself, I am surprised that the advocate for the Council did not have instructions to say to the Magistrates:
"If you find that the advice was indeed given, then the Council would not wish to pro-ceed with this prosecution."
I see no substantial public purpose being served in continuing to prosecute an individual who has come to the Council for advice as to whether something which he proposes to do is lawful, is ad-vised that it is and then in reliance on that representation does that very thing.
The Magistrates do not find explicitly nor were they asked to find by the prosecution that the offic-ers concerned should have appeared to the company's representatives as being manifestly inexperi-enced. These were officers to whom they had been explicitly referred by the planning department. In those circumstances, I do not think it would be right to construe para 5 of the case as implicitly holding that the company should have been aware of the inexperience of these officers. Indeed, Mr Green, who has argued the case for the Council, seductively and attractively did not expressly so submit. This is not a case where a person comes out of the blue and ask the Council's gardener or porter for advice on planning law.
The concept of abuse of process is well known. In R v Beckford (1996) 1 Cr App Rep 94, [1995] RTR 251 at page 101 of the former report Neill LJ identified two strands in the circumstances in which the jurisdiction to stay may be exercised:
"(1) Cases where the court concludes that the defendant cannot receive a fair trial;
(2) Cases where the court concludes that it would be unfair for the defendant to be tried."
If the present case falls into either category, it is the second.
The instinctive reaction of this court after having read the excellent skeleton argument of Mr Fra-ser-Urquhart, who appeared for the Appellants, was that the present case was, indeed, one of abuse of process and we indicated as much to Mr Green. He made the following submissions:
(1) The advice of the officers was no more than an expression of their opinion that the display of the proposed advertisments for a month would be lawful.
That I accept, subject to the qualification that it was not drawn to the attention of the company that this opinion might be, let alone was, wrong, nor was the lack of expertise of the officers drawn to the attention of the company.
(2) Such an expression of an opinion did not amount to a promise not to prosecute.
There I part company from Mr Green. It seems clear to me that the company was told that they could lawfully go ahead with the display of these advertisements. On that basis, of course, there would be no prosecution.
(3) The Magistrates were entitled to find that the company should not have relied on the oral advice of the inexperienced officers, but should have taken advice of their own.
As it seems to me, for reasons I have given under (1), the fact that the officers were in fact inexpe-rienced was not something to which the company should have been alerted. The fact that the advice was oral does not seem to me significant in the context of a one-month temporary erection of adver-tising hoardings outside White City. We are told that there is no statutory procedure in relation to the temporary display of advertisements, such as there is in relation to planning applications, for obtaining the decision of the Council as to whether this is lawful in the absence of a specific con-sent. In those circumstances, I do not regard this finding by the Magistrates as one which was open to them.
(4) He drew our attention to Western Fish Products Limited v Penwith District Council and Another [1981] 2 All ER 204, 38 P&CR 7. He pointed out that there was no evidence on any scheme of del-egation of power to these particular officers to give this advice. Western Fish was a case where a developer proceeded without planning permission to erect a large fish processing factory in Corn-wall. The developer was asked to apply for retrospective planning permission. It was alleged that a planning officer had given an assurance that this was a pure formality. Planning permission was ap-plied for and refused by the whole Council, who thereafter issued Enforcement Notices. The devel-oper brought proceedings seeking the declaration that he was to be treated as having planning per-mission. He lost without the Council calling any evidence. Megaw LJ, delivering the judgment of the court, said at page 219 of the former report:
"The defendant council's officers, even when acting within the apparent scope of their authority, could not do what the [Town and Country Planning Act 1971] required the defendant council to do; and if their officers did or said anything which purported to determine in advance what the defendant council themselves would have to determine in pursuance of their statutory duties, they would not be inhabited from doing what they had to do. An estoppel cannot be raised to "prevent the exercise of a statutory discretion or to prevent or excuse the performance of a statutory duty. . . Parliament by the 1971 Act entrusted the defendant council, acting through their elected members, not their officers, to perform various statutory duties. If their officers were allowed to determine that which Parliament had enacted the defendant council should determine there would be no need for elected members to consider planning applications.
. . .
There seem to be two kinds of exceptions. If a planning authority, acting as such, dele-gates to its officers powers to determine specific questions . . . any decisions they make cannot be revoked. This kind of estoppel, if it be estoppel at all, is akin to res judicata."
Then, on page 220, he said:
"For an estoppel to arise there must be some evidence justifying the person dealing with the planning officer for thinking that what the officer said would bind the planning authority."
Then, at page 221, he says:
"We can deal with the second exception shortly. If a planning authority waives a pro-cedural requirement relating to any application made to it for the exercise of its statu-tory powers, it may be estopped from relying on lack of formality . . .
The extension of the concept of estoppel beyond these two exceptions, in our judgment, would not be justified . . . The application of the concept of estoppel because of what a planning officer had represented could result in a court adjudging that a planning authority was bound to allow a development which flouted its planning policy, with which the courts are not concerned . . .
. . . To permit the estoppel no doubt avoided an injustice to the plaintiffs [said the Lord Justice in relation to another case]. But it also may fairly be regarded as having caused an injustice to one or more members of the public, the owners of the adjacent houses who would be adversely affected by this wrong and careless decision of the planning officer that the modifications were not material. Yet they were not, and it would 'seem could not', be heard. How, in their absence, could the court balance the respective in-justices according as the court did or did not hold that there was an estoppel in favour of the plaintiffs."
The law is faced from time to time with conflicting desiderata. In the field of Administrative Law a classic example arises when someone, apparently authorised to make a statement on behalf of an authority, makes such a statement and someone else relies on it. There is then a tension between the principle that where Parliament gives an authority only to one person the other has no such authority and cannot give himself authority just by making a statement. The other principle is that the citizen should be able to rely on assurances given by public officials. In fields such as planning which affect neighbours and a segment of the public and have consequences which can last for years, the courts tend to emphasise the principle that these important public powers can only be exercised by a person genuinely clothed with authority to exercise them. In the present case, however, all that is at stake is whether or no the Appellants should be prosecuted for what they did in good faith. In those circumstances I, for my part, would give greater weight to that other desideratum that the citizen should be able to rely on what a public official tells him.
In the present case the advertisements were only temporary. There was no need to prosecute in order to preserve the integrity of the planning process. I am not surprised that the Secretary of State has given the guidance in the Department of Environment Circular No. 5/92 at para 8 to Local Au-thorities, where he says:
". . . The Secretary of State nevertheless considers it would often be reasonable for Lo-cal Planning Authorities to invite a person who appears to be contravening the regula-tions to remove the advertisement, or to apply for consent before, they proceed to prosecute. The person may be unaware of the requirement of the regulations or may consider that he already has, or does not need, consent to display the advertisement. In cases of blatant, deliberate or repetitive display of advertisements, immediate prosecu-tion may be the more appropriate course to secure the early removal of an unlawful advertisement."
Once one accepts that the advice which the Magistrates found had been given had, in truth, been given, we find ourselves right in the middle of the first set of examples given by the Secretary of State.
There is in a case, such as at present, no long-term effect on the public unless it be the Council's case, which it was not, that its officials regularly gave incompetent advice without any form of ca-veat and that significant damage might be done to the public interest in the long run if people thought that they could rely on such advice in an attempt to escape from being prosecuted by the Council. As a matter of substance, I would answer the question posed by the Magistrates in the af-firmative.
(5) Mr Green submitted that the Magistrates have posed the wrong question and should have asked: Whether on the stated findings of fact the Magistrates could reasonably have concluded that the prosecution of the Appellant Company was not an abuse of process.
I see some force in that submission and, in order not unduly to lengthen this judgment, will proceed on the basis that it is correct. I would, however, also answer that question in the negative.
(6) I have left to last the point which Mr Green argued first before the Magistrates and first before us. He submitted that even accepting that the continuation of the prosecution once it had been found that the advice had, indeed, been given could in law amount to abuse of process, the proper court to decide whether or no there had been an abuse of process was the High Court on judicial review and not either the Magistrates or even this court on a Case Stated. It is apparent from para 5 of the case that the Magistrates accepted this submission.
For my part, I have every sympathy with them although I disagree with their having done so. This submission is founded on some dicta in the House of Lords in R v Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42, [1993] 3 All ER 138. The holdings in that case appear suf-ficiently from the headnote, which reads:
"Held, allowing the appeal (1) . . . that where a defendant in a criminal matter had been brought to the United Kingdom in disregard of available extradition process and in breach of international law and the laws of the state where the defendant had been found, the courts in the United Kingdom should take cognisance of those circumstances and refuse to try the defendant; and that, accordingly, 'the High Court, in the exercise of its supervisory jurisdiction, had power to inquire into the circumstances by which a person had been brought within the jurisdiction and, if satisfied that there had been a disregard of extradition procedures, it might stay the prosecution as an abuse of process and order the release of the defendant . . .'.
(2) That the jurisdiction exercised by magistrates, whether sitting as committing justices or exercising their summary jurisdiction, to protect the court's process from abuse was confined to matters directly affecting the fairness of the trial of the particular accused with whom they were dealing and did not extend to the wider supervisory jurisdiction for upholding the rule of law; that the wider responsibility was vested in the High Court and where a question arose as to the deliberate abuse of the extradition procedures the magistrates should adjourn the matter so that an application could be made to the Divisional Court, which was the proper forum for deciding the matter; and that, accordingly, the case would be remitted to the Divisional Court for further consid-eration . . ."
Procedurally what had happened was that the case had originally come before a Stipendiary Magis-trate in committal proceedings. He was asked to adjourn it whilst judicial review proceedings were taken. He refused and committed the defendant. The indictment was then signed. Judicial review proceedings were then brought before the Divisional Court who tried, as a preliminary issue, whether there was jurisdiction in the Divisional Court to inquire into the circumstances in which the Applicant had come into the United Kingdom. They held that there was not, but certified the fol-lowing question for the House of Lords:
"Whether in the exercise of its supervisory jurisdiction the court has power to inquire into the circumstances by which a person has been brought within the jurisdiction, and if so what 'remedy' is available if any to prevent his trial where that person has been lawfully arrested within the jurisdiction for a crime committed within the jurisdiction."
The House of Lords in due course held that there was such jurisdiction. It would be obvious that the question whether or no the Magistrate had jurisdiction to enter into such an inquiry never arose be-fore him, the Divisional Court or the House of Lords. Moreover, the case concerned committal pro-ceedings, not, as at present, a trial. Lord Griffiths, with whom on this issue a majority of their Lordships agreed, stated [1994] 1 AC 42 at page 61:
"There have, however, also been cases in which although the fairness of the trial itself was not in question the courts have regarded it as so unfair to try the accused for the offence that it amounted to an abuse of process. In Chu Piu-wing v Attorney-General [1984] HKLR 411 the Hong Kong Court of Appeal allowed an appeal against a convic-tion for contempt of court for refusing to obey a subpoena ad testificandum on the ground that the witness had been assured by the Independent Commission Against Corruption that he would not be required to give evidence, McMullin V-P said, at pp 417-418:
'there is a clear public interest to be observed in holding officials of the state to promis-es made by them in full understanding of what is entailed by the bargain.'
And in a recent decision of the Divisional Court in R v Croydon Justices, Ex parte Dean [1993] QB 769, the committal of the accused on a charge of doing acts to impede the apprehension of another contrary to section 4(1) of the Criminal Law Act 1967 was quashed on the ground that he had been assured by the police that he would not be prosecuted for any offence connected with their murder investigation and in the cir-cumstances it was an abuse of process to prosecute him in breach of that promise.
Your Lordships are now invited to extend the 'concept of abuse of process' a stage fur-ther. In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been re-turned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the ju-diciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law."
I note, in particular, that he considered that it could not be suggested in that case either that the Ap-pellant would not have a fair trial or (and this is what is significant) that it would be unfair to try him. He continued at page 62:
"The question then arises as to the appropriate court to exercise this aspect of the abuse of process jurisdiction."
He came to his conclusion at page 63:
"Provided it is appreciated by magistrates that this is a power to be most sparingly ex-ercised, of which they have received more than sufficient judicial warning . . . it appears to me to be a beneficial development and I am unpersuaded that there are any sufficient reasons to overrule a long line of authority developed by successive Lord Chief Justices and judges in the Divisional Court who are daily in much closer touch with the work of the magistrates' court than your Lordships. Nor do I see any force in an argument developed by the respondents which sought to equate abuse of process with contempt of court. I would accordingly affirm the power of the magistrates, whether sitting as committing justices or exercising their summary jurisdiction, to exercise control over their proceedings through an abuse of process jurisdiction. However, in the case of magistrates this power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures. Although it may be convenient to label the wider 'supervisory' jurisdiction with which we are concerned in this appeal under the head of abuse process, it is in fact a horse of a very different colour from the narrower issue that arises when considering domestic criminal trial procedures. I adhere to the view that I expressed in R v Guildford Magistrates' Court, Ex parte Healy [1983] 1 WLR 108 that this wider responsibility for upholding the rule of law must be that of the High Court and that if a serious question arises as to the deliberate abuse of extradition procedures a magistrate should allow an adjournment so that an application can be made to the Divisional Court which I regard as the proper forum in which such a decision should be taken."
It is clear that his Lordship is there applying his mind to the wider supervisory jurisdiction and con-trasting it with the two heads of jurisdiction to which he had earlier referred which he considered could be dealt with by the Magistrates: (i) the question whether the Appellant cannot have a fair tri-al, and (ii) the question whether it is unfair to try him. That is what is referred to on page 61, alt-hough I accept that it is not expressly referred to on page 64.
These dicta, it seems to me, certainly leave room for the Magistrates exercising the jurisdiction to stop a case when to continue would be unfair to the accused. This is in line with the first of the pas-sages cited and the cases there cited. In my judgment, the present case is a case where it would be unfair to the accused to continue with the prosecution rather than a case where the court is exercis-ing its wider jurisdiction to:
"oversee executive action and refuse to countenance behaviour that threatens either basic human rights or the rule of law."
I, therefore, consider that the Magistrates had jurisdiction to consider the question whether on the facts found by them they should make findings of criminality against the Appellants and impose sanctions on them or whether they should stay the proceedings as an abuse. They should have con-sidered that question uninhibited by their findings recorded at para 5C of the case. In my judgment, had they considered the matter thus, there was only one finding open to them, namely to stay the proceedings. In the circumstances, I would quash the Magistrates' decision and substitute instead a decision staying the proceedings.
MOSES J
I agree. I should like to add a few words in relation to the contention made on behalf of the Council, that the appropriate forum in which the Applicants' should have argued that the prosecution was an abuse of process was the High Court.
Mindful of the speech of Lord Griffiths in ex parte Bennett, to which my Lord has referred, the Ap-pellants sought to argue the point as to abuse in an application for judicial review before the Divi-sional Court. The Divisional Court refused leave, substantially because there was a dispute of fact. The dispute of fact was whether misleading advice had been given by the Council officials. Thus, once leave had been refused, the Appellants had no choice but to seek resolution of that factual dis-pute before the Magistrates and persist in their argument that the prosecution was an abuse in that forum. The Council's submission that the Appellants should have argued abuse before the Divisional Court displays a measure of bravado; it was only because the Council disputed the facts subse-quently found against it that the Appellants were compelled to argue the point in the Magistrates' Court. Had it not done so the Appellants would have advanced their complaint as to abuse before the Divisional Court and would not have troubled the Magistrates.
Where in a case such as this there is a dispute of fact relating to issues which it is appropriate for the Magistrates to resolve, such as whether a fair trial is possible or whether it is fair to try the defend-ant at all, it is, in my judgment, appropriate that the lower court should resolve those issues of fact and consider any issue raised as to abuse. I emphasise that the Magistrates' Court is not an appropri-ate forum in which to invoke a wider jurisdiction to oversee executive action or to protect the integ-rity of the rule of law; ex parte Bennett affords an example of such a case. In such a case the Magis-trates' Court would not be an appropriate forum even if there was a dispute of fact.
SCHIEMANN LJ: I agree with the judgment that has just been delivered, so the convictions will be quashed and proceedings stayed, which, I think, is the right Order for us to make, is it not?
MR FRASER-URQUHART: My Lord, can I address your Lordships briefly on the costs issue? An award of costs was made in the Magistrates' Court against us. Might I suggest that I ask for my costs of this appeal, the costs which have been incurred as a result of the prosecution and ----
MOSES J: Is that your Divisional Court's costs?
MR FRASER-URQUHART: My Lord, yes.
SCHIEMANN LJ: Let us take it in stages. The costs of this appeal, you want costs ----
MR FRASER-URQUHART: -- incurred in the Magistrates' Court and in preparation for the Magis-trates' Court's hearings.
SCHIEMANN LJ: The Magistrates' Court's hearing were interrupted by your trip to the Divisional Court; correct?
MR FRASER-URQUHART: My Lord, yes.
SCHIEMANN LJ: And that was at your request, rightly or wrongly?
MR FRASER-URQUHART: My Lord, it was. However, this all stems from the fact that the repre-sentations were made and reacted on those. My Lord, Moses LJ did mention that we were mindful of the speech of Lord Griffiths when we chose to approach the route we did and, in my submission, it is implicit from everything that has been said today and on the occasion in front of the Divisional Court that, but for the disputed fact, the matter would have proceeded by means of judicial review.
SCHIEMANN LJ: One has to assume that you would have won that?
MR FRASER-URQUHART: My Lord, yes, and, therefore, I say that I am entitled to my costs of bringing a judicial review application and renewing it orally.
SCHIEMANN LJ: So you want the costs of the appeal, costs of all the hearings below and the costs of the Divisional Court?
MR FRASER-URQUHART: My Lord, yes.
MOSES J: Have we the jurisdiction to award the costs in judicial review proceedings?
SCHIEMANN LJ: What happened in the Divisional Court? You were ex parte, were you not?
MR FRASER-URQUHART: We were ex parte although the Respondents appeared.
SCHIEMANN LJ: Were any Orders as to costs made?
MR FRASER-URQUHART: My Lord, no.
SCHIEMANN LJ: So no Order was made at all then?
MR FRASER-URQUHART: My Lord, no, leave was refused. Your Lordships do have what ap-pears to be a complete jurisdiction in these matters. May I take you to page 899 of the White Book? It is the note 56/5/12, setting out at s.28A of the Supreme Court Act 1981. Under (3) there are the powers of the High Court "(b) . . . to make such Order in relation to the matter (including as to costs) as it thinks fit".
My Lord, in my submission, those words are wide enough to give your Lordships jurisdiction.
SCHIEMANN LJ: It depends what the matter is.
MR FRASER-URQUHART: My Lord, yes, but this is all part of the same matter. The reason that we make an application to the Divisional Court constituted of two Judges is because it is a criminal cause or matter, or regarded as the same matter, in my submission.
SCHIEMANN LJ: I follow what you say.
MR FRASER-URQUHART: If the intention is to put us in the position, be it if things had been properly proceeded with, in my submission I would ask for my costs.
SCHIEMANN LJ: You say if things had been done, as we say they ought to have been done, then you should never have been in the Magistrates' Court in the first place?
MR FRASER-URQUHART: My Lord, yes.
SCHIEMANN LJ: And everything else is followed from there?
MR FRASER-URQUHART: My Lord, yes.
SCHIEMANN LJ: You say, do you, that your first trip up to the Divisional Court was at your initiative?
MR FRASER-URQUHART: It was our initiative, yes, but ----
SCHIEMANN LJ: It was not that the Magistrates said, 'No, you will not go ahead', they were no doubt delighted to see you should go?
MR FRASER-URQUHART: Yes.
MOSES J: It was the prudent course because of ex parte Bennett?
MR FRASER-URQUHART: My Lord, yes, although, of course, it is now being continually refined and has again today by your Lordships.
MOSES J: You could hardly be blamed for it, you say, whether you are right or wrong?
MR FRASER-URQUHART: Particularly, in the light of what was said both before the Magistrates and this morning.
SCHIEMANN LJ: Let us see what the Appellants have to say.
MR FRASER-URQUHART: My Lords, there is one further matter: your Lordships have a discre-tion as to whether or not to make this award as against Brent or out of Central Funds. There is pro-vision in the Prosecution of Offenders Act for a costs Order to be made out of Central Funds.
SCHIEMANN LJ: Presumably, Brent is solvent.
MOSES J: It is either the Council's taxpayers or ----
MR FRASER-URQUHART: I leave that matter to your Lordships.
SCHIEMANN LJ: It does not make any difference to you?
MR FRASER-URQUHART: It makes no difference to us.
SCHIEMANN LJ: Mr Green?
MR GREEN: Perhaps, I can address your Lordships on that single matter: the trip to the Divisional Court. That application was held to be inappropriate. The correct forum was held by the Divisional Court to be the Magistrates' Court. That application was not initiated by the Council and the fact that it was considered inappropriate was not the fault of the Council. In my submission, it is not proper that the Council should be punished.
SCHIEMANN LJ: The Council, I take it, did not suggest that the matter should be dealt with by the Magistrates' Court the first time round?
MR GREEN: My Lord, I cannot say.
MR FRASER-URQUHART: When I made my application for an adjournment the Council sug-gested -- it was said that the right route was to go to the Divisional Court. It was not by my learned friend, but on the occasion ----
SCHIEMANN LJ: It was common ground at the time that that was the sensible thing to do?
MR FRASER-URQUHART: My Lord, yes.
MOSES J: What slightly troubles me, Mr Green, if you had not disputed the facts it would have been dealt with by the Divisional Court subject to the delay point; would it not? They would have given leave?
MR GREEN: My Lord, presuming that the delay point were not itself the stuff of the application, then, presumably, yes.
SCHIEMANN LJ: I cannot think that it would, given, as I understand it, the court said that you should go ahead with abuse of process before the Magistrates. That sounds inconsistent with an at-titude, "as you have been dithering around so long", you cannot do anything more about it now; does it not?
MR GREEN: My Lord, with respect, perhaps. The point is the issue was raised at both applications as the grounds for refusal. I suppose certainly another matter is whether, indeed, that application falls within the definition of "matter" contained within the provisions of the s.28 of the Supreme Court Act 1981.
SCHIEMANN LJ: It is interesting, because one sees a little earlier in the (3) that it says the court "(b) . . . shall remit the matter to the . . . Justices . . .". One thing that certainly cannot be remitted to the Justices is a previous finding of the Divisional Court. Therefore, if the word "matter" means the same throughout this section, then it cannot include the Divisional Court, but, perhaps, that is a very narrow approach.
MR GREEN: My Lord, it would be my submission that the costs of those applications do not fall within this matter, being the appeal by way of Case Stated, against the determination of the Magis-trates. It is not something within your Lordships' power to deal with, in my submission.
SCHIEMANN LJ: So the appropriate course for the other side to take would be to sue you civilly, would it, for wrongful prosecution and recover the costs that way? Do you actually want to embark on this particular line?
MOSES J: Or could it not go about back to the Divisional Court or in other words us -- it cannot be McCowan LJ? Could it not go back to that Divisional Court on seeking that they should reopen and make your application for costs? You would say that what they ought to have done was, when leave was refused going back to the Magistrates' Court, to say to McCowan LJ and Collins J: 'Please re-serve the costs. If we win in front of the Magistrates we are going to come back and ask for our costs here.'
MR GREEN: It may be that they would refuse to award the costs on the basis that the application was misconceived on the basis that there was a disputed fact.
As to the other item, the other costs, my Lord, I can say very little.
MOSES J: Who should pay?
MR GREEN: That is a matter, of course, for your Lordships' discretion.
SCHIEMANN LJ: I think on the facts of this case you would be rather hard put, as the Magistrates found, to say that the general public purse as opposed to the Brent ratepayer ought to carry the can, quite frankly. You can see the force of that point.
MR GREEN: My Lord, yes.
SCHIEMANN LJ: Thank you very much, Mr Green. Have you anything to add, Mr Fra-ser-Urquhart?
MR FRASER-URQUHART: My Lord, I do not think so, simply to say that the matter should be narrowly construed, as your Lordship may have indicated, is overly narrow.
SCHIEMANN LJ: We are not interested in what you think, if I can be rather old-fashioned about it. It is for you to submit.
MR FRASER-URQUHART: My Lord, I submit.
MOSES J: You say that it is an Order for costs in the Divisional Courts. You say: "Do not worry about the definition of the matter." However, what about the words "in relation to"? The one thing that you could say, I suppose, is that an Order for costs in relation to your application to the Divi-sional Court was clearly in relation to this matter?
MR FRASER-URQUHART: My Lord, that is right. That is the wider definition I am looking for at this stage, but certainly, in my submission, that is the way in which the section has clearly been drafted with that in mind.
SCHIEMANN LJ: I doubt whether it had these circumstances in mind for a minute. There we are. We will just have to do the best that we can.
Ruling As Regards Costs
SCHIEMANN LJ: We consider that we have jurisdiction to give you all the costs that you have asked for and we do. Therefore, you will have the costs here and below and the costs of the earlier application to the Divisional Court.
If I can just say this, from my experience of local government, acting for many local authorities: it is very easy to get into a particular tram line, then to start running along it and never to step back and say: 'Where is the substance of this at this point.' I feel that this has probably gone on here, and I hope that somebody will learn in the future not to do that.
Thank you very much, both of you, for your careful arguments.
Appeal allowed
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