Magistrates’ court – Procedure – Appeal from abatement notice issued by claimant council – Hearing before justices – Adjournment prior to judgment – Chairman of justices meanwhile visiting and examining site of alleged nuisance – Appeal allowed and costs awarded out of central funds – Justices later reconvening and awarding costs against claimants instead – Whether visit invalidating proceedings – Whether justices having jurisdiction subsequently to re-open costs decision – Claim allowed
In August 2007, the claimant council served an abatement notice on the interested party alleging a statutory nuisance by artificial light contrary to section 79(1)(fb) of the Environmental Protection Act 1990. The notice related to a security light outside the interested party’s premises. The interested party appealed, contending that the light did not amount to a nuisance. After hearing evidence and closing submissions, the justices indicated their provisional view that a statutory nuisance had not been proved. They proposed to adjourn judgment to a later date and to meet before prior to that date to prepare their reasons.
Subsequently, an officer of the claimants saw the chairman of the justices visiting the site at night and examining the light, holding a newspaper in front of it, and taking photographs. The claimants informed the court of this. At the adjourned hearing, in April 2008, the chairman read out a statement, admitting that he had visited the site prior to the meeting of the justices, but stating that it had not affected their decision, which had been made prior to and independently of that visit. The justices rejected a submission by the claimants that they should recuse themselves owing to procedural unfairness and the risk of them taking into account evidence upon which neither party had had the opportunity of commenting. They proceeded to allow the interested party’s appeal. They refused to make an order for costs against the claimants, however they made an award of costs out of central funds.
The claimants were granted permission to seek judicial review of the justices’ decision. The justices reconvened of their own motion in November 2008, reviewed their previous decision on costs, and awarded costs against the claimants.
The claimants contended that the chairman’s private viewing of the site had invalidated the proceedings since it: (i) was irregular and impermissible in principle; (ii) was contrary to the requirement that all the evidence should be seen by all the decision-makers; and (iii) had resulted in justice not being seen to be done. They also raised grounds relating to the November 2008 hearing.
Held: The claim was allowed.
(1) Although it was acceptable for a judge to go to a public place to see for himself something that had previously been represented to him by plans or photographs, he was not permitted to go further and conduct “some kind of demonstration in which the events…are reconstructed or simulated”: Salsbury v Woodland [1970] 1 QB 324 applied. The latter, if undertaken by the judge alone and without reference to the parties, was entirely irregular. The chairman’s activities in the instant case had fallen on the wrong side of the line given the unchallenged evidence as to the experiments he had conducted on his visit. Prima facie, the consequence was that the trial was invalid and the decision of the justices had to be quashed: Goold v Evans & Co [1951] 2 TLR 1189 applied. The chairman’s visit was also contrary to the requirement that all the evidence should be seen by all the decision-makers: R v Davis [2000] Crim LR 1012 applied. Additionally, the circumstances were such that a fair-minded observer would infer the existence of a real risk that justice had not been done. Despite the statement read out by the chairman at the April 2008 hearing, an observer would be entitled to infer that there was a real risk that the visit had played a part in influencing his, and his colleagues’ decision: R (on the application of Burkett) v Hammersmith and Fulham London Borough Council (No 1) [2002] UKHL 23; [2002] 1 WLR 1593 considered. Consequently, the claimants were entitled to an order quashing the justices’ decision and remitting the matter to a differently constituted bench.
(2) The justices’ power to re-open cases to rectify mistakes, pursuant to section 142 of the Magistrates’ Courts Act 1980, applied only where they were exercising their criminal jurisdiction, not their civil jurisdiction. While the justices had a limited power to re-open cases at common law, there was no more general power and no power to re-open a case merely because of the existence of grounds that might support an application for judicial review: R (on the application of Mathialagan) v Southwark London Borough Council [2004] EWCA Civ 1689; [2005] RA 43 applied. The justices might have been entitled to re-open their previous order to the extent of setting aside their purported award of costs to the interested party out of central funds, since they had had no jurisdiction to make such an order. However, they had had no jurisdiction to re-open their legitimate decision, lawfully made in the proper exercise of their jurisdiction, not to award costs against the claimants. Moreover, there had been no rational basis for the justices changing their mind on that issue since there had been no change in circumstances following the earlier hearing to justify the justices in taking a different view.
Alexander Goodman (instructed by the legal department of Broxbourne Borough Council) appeared for the claimants; the defendant and the interested party did not appear and were not represented.
Sally Dobson, barrister
