Costs — Environmental Protection Act 1990 section 82(12) — Abatement notices — Construction of section 82 — Whether costs of proceedings recoverable — Whether magistrates have jurisdiction to permit adjournment to allow nuisance to be abated
The appellant
tenants, H and P, served on the respondent council notices of intention to
bring proceedings against them as persons aggrieved by a statutory nuisance,
pursuant to section 82 of the Environmental Protection Act 1990. The notices
specified that the tenants’ premises were, inter alia, in a state
prejudicial to their health, and gave the council a period of 21 days in which
to carry out the necessary remedial works. The council, on receipt of the
notice, acted promptly, and made known to the tenants that the remedial works
would take longer than the 21-day period in the notices. Shortly after the
expiration of the 21-day period, the tenants commenced proceedings against the
council. In the magistrates’ court, the tenants’ costs were disallowed on the
grounds that the tenants had failed to give the council a proper opportunity to
complete the remedial works, and that the tenants had acted unreasonably in
instituting proceedings. The tenants appealed against that decision, and H
sought judicial review of the decision of the magistrates to adjourn her case
to allow the council to complete the necessary works.
of Sandwell Metropolitan Borough Council v Bujok [1990] 1 WLR
1350 provides considerable support for the submission that section 82(12)
confers a right to costs. The magistrates’ court is not entitled to refuse
costs on the grounds that it considers it unnecessary for the complainant to
institute proceedings. It is bound to order costs provided that it is satisfied
that the statutory nuisance existed at the time of the complaint. Its consideration
is limited to questions as to whether particular items of expenditure were
unnecessary and as to whether the amounts claimed are more than those warranted
by the particular proceedings before them.
adjournment cannot be granted if the only purpose is to avoid the consequences
which the law provides will follow, should the hearing continue. The effect of
granting the adjournment was to deprive H of the right to claim compensation, a
right which had accrued because on that date it was accepted that a statutory
nuisance existed. The magistrates’ error lay in failing to appreciate that
right; they were wrong to take the view that the council had acted reasonably
and, by implication, that they considered that it was unnecessary to institute
proceedings. The reasons they gave were not capable, as a matter of law, of
justifying the grant of an adjournment. H had a right to bring those
proceedings and, if at the date of hearing there was no dispute that a
statutory nuisance existed, the magistrates had no power to adjourn the hearing
without taking a plea when to do so would avoid the consequences of a
conviction under section 82(2) and the right to compensation.
The following
cases are referred to in this report.
Botross v Hammersmith & Fulham London Borough Council (1995) 93
LGR 268
Davenport v Walsall Metropolitan Borough Council (1995) 28 HLR 754
R v Liverpool Crown Court, ex parte Cooke [1997] 1 WLR
700; [1996] 4 All ER 589; 95 LGR 315
R v Walsall Justices, ex parte W [1990] 1 QB 253;
[1989] 3 WLR 1311; [1989] 3 All ER 460
Sandwell
Metropolitan Borough Council v Bujok [1990] 1 WLR
1350; [1990] 3 All ER 385; (1989) LGR 521
These were
appeals against Dudley Metropolitan Borough Council, and an application by
Margaret Hollis for judicial review of the decision of the magistrates’ court
to adjourn proceedings.
Timothy
Straker QC and Michael Singleton (instructed by Geffens, of Walsall) appeared
for the applicants; Duncan Matheson QC and James Findlay (instructed by the
solicitor to Dudley Metropolitan Borough Council) represented the respondents.
Giving the
first judgment, MOSES J said: These appeals raise an important point as
to the construction of section 82(12) of the Environmental Protection Act 1990.
The issue is whether a person, typically a tenant, who is aggrieved by a
statutory nuisance has a right to costs in proceedings he brings to abate the
nuisance, even if, in the opinion of the magistrates’ court, it was
unreasonable and unnecessary to bring those proceedings for that purpose. In
other words, is section 82(12) mandatory or do the magistrates retain a power
to disallow costs because they are of the view that the proceedings should not
have been brought?
In these
appeals the magistrates disallowed all the costs of two tenants who had made
complaints against Dudley Metropolitan Borough Council (the council) that their
premises were in such a state as to be prejudicial to their health or a
nuisance. They did so on the grounds that in each case the council, once they
had received notice of the defects, had acted positively and promptly. In both
cases the council had stated that the work would take longer than the 21-day
period specified in the notice. In the case of Mrs Hollis, proceedings were
brought by complaint after materials had been delivered to the site. In Mr
Probert’s case, a summons was issued one month from the date of the first
complaint. In both cases, therefore, the court took the view that the tenants
had failed to give the council a proper opportunity to complete the necessary
work and that the work would have been undertaken, even if the proceedings had
not been brought.
We need not
set the facts out in any further detail; a full chronology and the relevant
parts of the cases stated and the questions asked are annexed to this judgment
[not reproduced here]. We take this course because the answer to the questions
depends entirely upon the proper construction of section 82(12). If the
magistrates had power to refuse costs on the grounds that the proceedings
should not have been instituted, their view of the facts cannot successfully be
impugned. The question is, do they have such power?
We should also
mention at this stage that Mrs Hollis seeks a judicial review of the decision
of the magistrates to adjourn her case to allow the council to complete the
necessary work. These proceedings give rise to a discrete issue as to the power
of magistrates to adjourn for such a purpose. We shall deal with that issue
after we have considered the question of statutory construction.
Statutory
provisions
The relevant
sections in Part III of the Environmental Protection Act 1990 are as follows:
79
Statutory nuisances and inspections therefor
(1) Subject
to subsections (2) to (6) below, the following matters constitute ‘statutory
nuisances’ for the purposes of this Part, that is to say —
(a) any
premises in such a state as to be prejudicial to health or a nuisance; …
and it shall
be the duty of every local authority to cause its area to be inspected from
time to time to detect any statutory nuisances which ought to be dealt with
under section 80 below and, where a complaint of a statutory nuisance is made
to it by a person living within its area, to take such steps as are reasonably
practicable to investigate the complaint …
80 Summary
proceedings for statutory nuisances
(1) Where a
local authority is satisfied that a statutory nuisance exists, or is likely to
occur or recur, in the area of the authority, the local authority shall serve a
notice (‘an abatement notice’) imposing all or any of the following
requirements —
(a) requiring
the abatement of the nuisance of prohibiting or restricting its occurrence or
recurrence;
(b) requiring
the execution of such works, and the taking of such other steps, as may be
necessary for any of those purposes,
and the
notice shall specify the time or times within which the requirements of the
notice are to be complied with …
82 Summary
proceedings by persons aggrieved by statutory nuisances
(1) A
magistrates’ court may act under this section on a complaint made by any person
on the ground that he is aggrieved by the existence of a statutory nuisance.
(2) If the
magistrates’ court is satisfied that the alleged nuisance exists, or that
although abated it is likely to recur on the same premises, the court shall
make an order for either or both of the following purposes —
(a) requiring
the defendant to abate the nuisance, within a time specified in the order, and
to execute any works necessary for that purpose;
(b)
prohibiting a recurrence of the nuisance, and requiring the defendant, within a
time specified in the order, to execute any works necessary to prevent the
recurrence;
and may also
impose on the defendant a fine not exceeding level 5 on the standard scale …
(4)
Proceedings for an order under subsection (2) above shall be brought —
(a) except in
a case falling within paragraph (b) or (c) below, against the person
responsible for the nuisance;
(b) where the
nuisance arises from any defect of a structural character, against the owner of
the premises;
(c) where the
person responsible for the nuisance cannot be found, against the owner or
occupier of the premises …
(6) Before
instituting proceedings for an order under subsection (2) above against any
person, the person aggrieved by the nuisance shall give to that person such
notice in writing of his intention to bring the proceedings as is applicable to
proceedings in respect of a nuisance of that description and the notice shall
specify the matter complained of.
(7) The
notice of the bringing of proceedings in respect of a statutory nuisance
required by subsection (6) above which is applicable is —
(a) in the
case of a nuisance falling within paragraph (g) of section 79(1) above, not
less than three days’ notice; and
(b) in the
case of a nuisance of any other description, not less than twenty-one days’
notice;
but the
Secretary of State may, by order, provide that this subsection shall have
effect as if such period as is specified in the order were the minimum period
of notice applicable to any description of statutory nuisance specified in the
order …
(12) Where on
the hearing of proceedings for an order under subsection (2) above it is proved
that the alleged nuisance existed at the date of the making of the complaint,
then, whether or not at the date of the hearing it still exists or is likely to
recur, the court shall order the defendant (or defendants in such proportions
as appears fair and reasonable) to pay to the person bringing the proceedings
such amount as the court considers reasonably sufficient to compensate him for
any expenses properly incurred by him in the proceedings …
Wording of
section 82(12)
The starting
point must be the wording of this subsection. The words ‘shall order …’ connote
an obligation. The council’s case does not, thus, have a promising start. But
Mr Duncan Matheson QC, on behalf of the council, rests his case on the
expression:
properly
incurred … in the proceedings.
He contends
that the insertion of the adverb permits the court to disallow not merely
excessive costs, but also all the costs where the proceedings need not have
been brought at all. We are of the view that had parliament intended to confer
a power on magistrates to disallow costs of bringing the proceedings, it would
have said so. It would not have been difficult to discover an appropriate
source for words designed to confer a general discretion as to whether the
costs of bringing proceedings should be awarded. Our attention was drawn to the
Prosecution of Offences Act 1985 by Mr Timothy Straker QC, on behalf of the
appellants. Section 16 provides:
Defence
costs
(1) Where —
(a) an
information laid before a justice of the peace for any area, charging any
person with an offence, is not proceeded with; …
that court or,
in a case falling within paragraph (a) above, a magistrates’ court for that
area, may make an order in favour of the accused for a payment to be made out
of central funds in respect of his costs (a ‘defendant’s costs order’) …
(6) A
defendant’s costs order shall, subject to the following provisions of this
section, be for the payment out of central funds, to the person in whose favour
the order is made, of such amount as the court considers reasonably sufficient
to compensate him for any expenses properly incurred by him in the proceedings.
Those
provisions confer a general discretion as to whether to award costs. If a
decision is made to do so, then such costs can be disallowed if they have been
incurred unnecessarily. We do not think that the fact that parliament chose to
use the word ‘shall’ can be explained as merely a statutory nudge in favour of
the complainant. Its use powerfully suggests that a right to costs has been
conferred, subject only to questions of amount.
But that is
only the starting point. We must consider the wording in its statutory context.
Statutory
scheme
Nature of
the criminal offence in section 82(2)
Section 82(2)
creates a criminal offence in circumstances where a statutory nuisance exists
at the time of the hearing or where, although abated, it is likely to recur:
see Botross v Hammersmith & Fulham London Borough Council
(1995) 93 LGR 268 and R v Liverpool Crown Court, ex parte Cooke
[1997] 1 WLR 700 at p703D–E. Even if a statutory nuisance existed up to the day
before the hearing, no offence has been committed so long as the statutory
nuisance is not likely to recur. Consequently, the court has no power to make
any of the orders specified in that subsection and, importantly, has no power
to make an order of compensation pursuant to section 35 of the Powers of
Criminal Courts Act 1973. The only circumstances in which the court can take
action are where section 82(12) applies and an order can be made under that
subsection. But such an order can only be made if
Thus, even though a statutory nuisance has occurred and has persisted up to the
time the written notice under section 82(6) is sent, the court has no power to
make any order, even an order as to costs. The offence is, therefore, not
typical of a criminal offence, which will normally be committed by the action
or omission of a defendant on a date prior to the hearing before the court.
However lax the conduct of those responsible for the nuisance, as identified
under section 82(4), however great the justification for the aggrieved person
issuing the notice, those responsible will escape not only criminal liability,
but also a liability for costs, provided that they abate the nuisance in a way
which will prevent its recurrence before the notice has expired.
A person
aggrieved by a statutory nuisance is likely to incur substantial expenditure
when he takes steps to have the nuisance from which he is suffering abated. He
may well have to retain an expert in order to specify his complaint in the
statutory notice under section 82(6). At that stage he cannot know whether the
work will have been completed by the time of the hearing, partly because he
will not know the date when the hearing is to take place. Nor will he know
whether or when any assurances as to the work to be undertaken will be
honoured. It must be recalled that the defendant to section 82 proceedings may
be a private landlord and not a local authority accustomed to keeping their
promises. Yet if the work is completed by the time the period of notice expires
he will recover nothing, not even his costs.
Provisions
as to notice under sections 82(6) and (7)
The only
requirement imposed upon an aggrieved person who wishes to issue a complaint
pursuant to section 82(1) is to give written notice of an intention to bring
proceedings which must specify the matter complained of (subsection 6) and to
give a minimum period of notice of 21 days (subsection 7). He is, thus, under
no obligation to heed requests for a longer period within which to undertake
work or to wait, after the expiry of 21 days, to see whether any promises are
honoured, before issuing a complaint. Parliament cannot have envisaged that,
where a statutory nuisance exists, such work as is necessary to abate the
nuisance will be undertaken in so short a period, save in an exceptional case.
It is
instructive to compare the provisions relating to notice in sections 82(6) and
(7) with those in section 80. That section is concerned only with proceedings
brought by a local authority for failure to comply with an abatement notice
served by the authority. In such a case it is for the local authority to
specify the period within which the requirements of the notice shall be
complied with: section 80(1). The person served with such a notice may appeal
against the notice to the magistrates’ court: subsection 3. The magistrates may
extend the time within which the notice shall be complied with if it is not
reasonably sufficient: Statutory Nuisance (Appeals) Regulations 1995 (SI 1995/2644).
No such power of appeal exists under section 82. However, under section 80 the
offence is committed once there has been a failure, without reasonable excuse,
to comply with the abatement notice, even if the requirements of such a notice
have been complied with at the time of the hearing: subsection 4.
Where
parliament has conferred a power on a person aggrieved by a statutory nuisance
to bring proceedings, it imposed no requirement that the notice should give
sufficient time for the nuisance to be abated and provided no mechanism by
which the period of notice could be challenged. Comparison with the provisions
of section 80 demonstrates that this was no accident.
Proceedings
brought to recover expenses
Moreover,
parliament specifically contemplated proceedings being brought at which the
only issue is whether the statutory nuisance existed at the date of making the
complaint; in other words, in circumstances where it is plain that the nuisance
has been abated at the time of the hearing and is not likely to recur. The only
forum in which the statutory precondition for an award of costs can be proved,
namely that the alleged nuisance existed at the date of the making of the
complaint, is on the hearing of proceedings identified in subsection 12 as:
proceedings
for an order under subsection (2).
Parliament so
provided in the context of provisions which, as we have observed, required only
a minimum period of notice and allowed no opportunity to dispute whether the
length of notice was reasonable.
The statutory
scheme is, therefore, that an aggrieved person may bring proceedings
immediately after a short period of notice has expired for the sole purpose of
recovering expenses.
Conclusions
as to the statutory scheme
Mr Matheson
QC, on behalf of the council, argued that since costs can only be recovered by
making a complaint and instituting proceedings, parliament cannot have intended
to impose an obligation to award costs. Such an obligation would, it is said,
provide a powerful, but unjust, incentive to launch unnecessary proceedings by
making a complaint, for example before a reasonable time has elapsed in which
to abate the nuisance. A complaint could be made one day after the minimum
period of notice had elapsed at a time when work had started and, possibly just
before it finished. Moreover, he says, one who deliberately obstructs work
being carried out would still have a right to costs. To launch proceedings in
either of these circumstances would, he said, be improper and the costs
incurred could be disallowed by the magistrates on the grounds that they were
not:
properly
incurred in the proceedings.
Mr Matheson QC
also drew attention to the report to the Department of the Environment by the
Legal Research Institute of the University of Warwick in 1995. We question the
admissibility of this document in appeals by case stated, but we were prepared
to consider its contents as expressing argument adopted by the council in these
cases. We appreciate the concern of councils as to the drain on resources
caused by section 82 proceedings being brought, faced as they are by the
conflicting demands imposed by deteriorating housing stock and by solicitors
who, it is said, target estates and inflate costs. We think that the report
presents a substantial argument as to why parliament should not have conferred
a right to costs, but it does not assist on the proper construction of the
statute. After all, it is based on the premise that parliament did so provide.
If reference to the report was merely designed to excite our sympathy for
councils struggling to make do with limited resources, it succeeded.
We do not
accept Mr Matheson’s submissions. An obstructive tenant may be forced to permit
work to take place by civil proceedings. He runs the risk, in cases other than
those of structural defects, of losing his case on the grounds that the
defendants were not responsible for the nuisance but that he was, pursuant to
section 82(4)(a).
We take the
view that the council’s submissions fail to give sufficient weight to the very
nature of the statutory scheme provided. Parliament having afforded an
opportunity to an aggrieved person to bring proceedings as soon as the brief
notice period has expired cannot be supposed to have allowed, at the same time,
that advantage to be removed at the discretion of the magistrates, on the
grounds that that opportunity should not have been seized by the complainant.
It is by no
means unreasonable, still less absurd, to think that parliament conferred a
right to costs on someone aggrieved by the nuisance where it persists up to the
time of the complaint. Such a right balances the risk of no recovery if,
despite having suffered from a nuisance at the time notice is given, the
nuisance is abated before the complaint is made. If the nuisance is abated at
the time of making the complaint then he will not recover his costs, however
reasonably they may have been incurred in giving notice and identifying the
defects which constitute the statutory nuisance. But if the nuisance persists
at the time the complaint is made, he has an assurance that he will recover
those expenses. Such an approach provides a powerful incentive to a landlord,
who may not be a local authority, to avoid a statutory nuisance occurring at
all.
Mr Matheson QC
sought to counter that argument by contending that the wording of subsection
12:
expenses …
incurred … in the proceedings,
limited the
compensation to expenses incurred in preparation for the hearing and at the
hearing. Thus, costs incurred in, for example, giving notice and providing a
description of the defects which constitute the statutory nuisance in
accordance with section 82(6), frequently, as in these cases, by means of
experts’ reports, are irrecoverable even if they result in a complaint and the
proof of an offence. It is inconsistent with the scheme of section 82 and the
wording of subsection 12 so to limit the expenses. It is illogical that the
costs incurred in establishing the necessary precondition for the recovery of
expenses, namely that the nuisance existed at the time of the complaint, should
be irrecoverable, while allowing costs in the period which followed the making
of the complaint.
The
proceedings contemplated in subsection 12 are not only proceedings in which it
is alleged the statutory nuisance existed or was likely to recur as at the date
of the hearing, but also proceedings where it is accepted that the nuisance has
been abated but where it is sought to prove that the nuisance existed at the
date of the making of the complaint, for the purpose of seeking compensation
for expenses. The expenses incurred in such proceedings, once the ambit of
those proceedings is properly understood, include those expenses which have been
incurred for the purpose of proving the statutory precondition. Such expenses
will include the cost of proving the existence of a statutory nuisance and the
costs of compliance with the statutory requirements, which must be fulfilled
before a complaint is made.
Part III
of the Public Health Act 1936
In support of
his submission that parliament cannot have intended to confer a right to costs,
whatever the circumstances in which the proceedings are instituted, Mr Matheson
QC relied upon Sandwell Metropolitan Borough Council v Bujok
[1990] 1 WLR 1350 in which Lord Griffiths warned that tenants may have their
costs disallowed if they brought proceedings before allowing a reasonable time
for defects to be repaired. The House of Lords was concerned with section 99 of
the Public Health Act 1936. That section provided:
Complaint of
the existence of a statutory nuisance under this Act may be made to a justice
of the peace by any person aggrieved by the nuisance, and thereupon the like
proceedings shall be had, with the like incidents and consequences as to the
making of orders, penalties for disobedience of orders and otherwise, as in the
case of a complaint by the local authority, but any order made in such
proceedings may, if the court after giving the local authority an opportunity
of being heard thinks fit, direct the authority to abate the nuisance.
The House of
Lords rejected the contention that, by virtue of the reference to ‘like
consequences’, the right to costs conferred upon a local authority by section
94(3) was also conferred on an aggrieved person. Lord Griffiths said, at
p1359A:
The costs of
proceedings under section 99 will therefore be in the discretion of the
justices. If a tenant has given notice to a local authority of defects in his
premises and has allowed a reasonable time for them to be repaired before
commencing proceedings, it will of course lie within the justices’ discretion
to award costs to the tenant if by the time of the hearing the work has been
carried out. If the proper conclusion is that it was only the threat of
proceedings that jolted the landlord into action, the award of costs to the
tenant will clearly be justified. If, on the other hand, no notice of the
defects is given before the commencement of proceedings and the justices are of
the view that if notice had been given the work would have been carried out
without the necessity of recourse to proceedings, I would not expect them to
exercise their discretion to award costs to the tenant … In future I hope that
those advising tenants will realise that they will not automatically be
entitled to the costs of section 99 proceedings and of the advisability of
giving proper notice to the landlord before commencing proceedings.
These minatory
dicta are, of course, of no relevance if section 82(12) is mandatory.
They provide no assistance in determining how that section is to be construed.
The case is, however, of considerable assistance when section 82(12) is
compared with section 94 of the Public Health Act 1936, which applied to local
authorities. Section 94(1) provided:
If the person
on whom an abatement notice has been served makes default in complying with any
of the requirements of the notice, or if the nuisance, although abated since
the service of the notice, is, in the opinion of the local authority, likely to
recur on the same premises, the authority shall cause a complaint to be made to
a justice of the peace, and the justice shall thereupon issue a summons
requiring the person on whom the notice was served to appear before a court of
summary jurisdiction.
Section 94(2)
was in similar terms to section 82(2) of the 1990 Act. Section 94(3) of the
1936 Act provided:
Where on the
hearing of a complaint under this section it is proved that the alleged
nuisance existed at the date of the service of the abatement notice and that at
the date of the making of the complaint it either still existed or was likely
to recur, then, whether or not at the date of the hearing it still exists or is
likely to recur, the court shall order the defendant to pay to the local
authority such reasonable sum as the court may determine in respect of the
expenses incurred by the authority in, or in connection with, the making of the
complaint and the proceedings before the court.
We note that
the House of Lords accepted that that subsection imposed an obligation to award
costs in favour of a local authority. The only material difference in wording
between that subsection and section 82(12) is the inclusion of the words
‘properly’ and ‘in connection with’. We do not think that the addition of the
adverb ‘properly’ bears the weight for which the council contend. As we have
already stated, the words ‘expenses properly incurred … in the proceedings’
mean no more than expenses which are necessary and permit the court to disallow
expenses which it considers need not have been incurred. The absence of the
words ‘in connection with’ in section 82(12) do not, for the reasons we have
given above, exclude costs incurred in connection with the making of the
complaint.
Thus, we consider
that Sandwell, far from lending support to the council’s case, provides
considerable support for the submission that section 82(12), like section 94(3)
before it, confers a right to costs. Section 94, it should be observed, gave no
minimum period for an abatement notice and no right of appeal against any
period which is specified. Both parties accept that parliament must have had
these provisions in mind when considering what became section 82 of the 1990
Act and, indeed, Sandwell, which had been decided at first instance to
similar effect before the Bill was laid before parliament and which had been
decided in the House of Lords before the Bill became law. We consider that
parliament took a decision to adopt the mandatory provisions which had previously
only applied in relation to local authorities. It would be strange indeed if,
mindful of the words of Lord Griffiths’ speech, which echoed the words of
Tasker Watkins LJ, in this court (88 LGR 521, at p534), parliament used words
so close to those in section 94(3) if it intended to confer a power upon
magistrates to disallow all the costs because the proceedings should never have
been brought at all.
Debate in
the House of Lords
We would have
regarded these reasons as sufficient to compel the conclusion that section
82(12) conferred a right to costs. The applicants, however, have sought to rely
upon statements of the parliamentary under secretary, Baroness Blatch,
promoting the Bill during its consideration by the House of Lords. The council
took no objection to our considering these statements and, at the stage in the
argument when it was sought to rely upon those statements, our views had not
crystallised sufficiently to query whether there was such an ambiguity as to
permit consideration of the minister’s observations. In response to a proposed
amendment to carry over into the Bill provisions similar to section 94(3), she
said:
We cannot
support this amendment. In the context of action by local authorities we
consider the mandatory costs provision must be regarded as
costs in the case of actions brought by private individuals under Clause 81 and
we are bringing forward an amendment to Clause 81 accordingly. We have done
that because of the implications of the Sandwell v Bujok judgment
and because the resources of people such as, for example, housing tenants who
take action under Clause 81 may be limited. They could be put off taking action
unless they are reasonably sure of being awarded costs. (Hansard vol 522
October 15 1990 col 603)
We do not
think that the fact that the minister’s qualification, ‘reasonably sure’ meant
anything more than a reference to the possibility that the magistrates might
have to resolve an issue as to whether, in fact, there existed a statutory
nuisance at the time the complaint was made.
These
statements were made four days after the decision of the House of Lords was
given. They are clear and provide substantial support for the view we have
reached.
Previous
authority
Finally, we
should mention the decision of this court in Davenport v Walsall
Metropolitan Borough Council (1995) 28 HLR 754. In that case this court was
concerned primarily with the refusal of the magistrates to make a compensation
order after a plea of guilty. This court declined to interfere with that
refusal. The magistrates had, however, refused to award costs of the adjourned
hearing at which compensation had been sought. This court decided that the
costs of that hearing were properly incurred. It was not, therefore, concerned
with the issue before us, namely whether it is open to the magistrates to
refuse costs if they are of the view that the proceedings should not have been
brought in the first place. We derive comfort, however, from the wisdom of
Keene J who observed, at p768:
Under section
82(12) … the Justices are bound to make a costs order in favour of any
complainant, once it is found that a statutory nuisance existed at the date of
the making of the complaint. The only limit on that is that the award is to
compensate the complainant only for expenses properly incurred. That would seem
to be intended to ensure that the amount to be paid by a defendant is not
increased by any improper act or omission on the part of a complainant or his
professional representatives.
Conclusion
For these
reasons we conclude that a magistrates’ court is not entitled to refuse costs
on the grounds that it considers it was unnecessary for the complainant to
institute proceedings. It is bound to order costs provided that it is satisfied
that the statutory nuisance existed at the time of the complaint. Its
consideration is limited to questions as to whether particular items of
expenditure were unnecessary and as to whether the amounts claimed are more than
those warranted by the particular proceedings before them, such as the
engagement of unduly expensive solicitors or counsel or an excessive number of
experts. Accordingly, we allow the appeals and answer all three questions in
the negative. The only basis upon which the costs were disallowed was that it
was unnecessary to bring proceedings and, accordingly, no findings were made as
to whether the amount claimed was excessive. We shall hear submissions as to
whether, in those circumstances, it is appropriate to remit the cases back to
the magistrates to hear argument on the amount claimed by the appellants.
Proceedings
for judicial review in the case of Mrs Hollis
The issue in
these proceedings is whether it was lawful for the magistrates to adjourn
proceedings brought by this applicant in order to allow the council to complete
their work to abate the nuisance. On August 16 1996 a summons was sent to the
council for a hearing on September 6. It was not received by the legal
department until September 5 when an adjournment was requested but refused. At
a hearing before Dudley Magistrates on September 6, at which no witnesses were
present, the respondent council requested an adjournment of nine weeks to
enable the council to complete repairs. The solicitor for Mrs Hollis, Mr Ivan
Geffen, requested that a plea be entered. He stated that this was for the
purpose of compensation. The chairman of the justices records in her affidavit
that the council’s legal representative stated:
If an
adjournment was granted and a statutory nuisance remained outstanding at
the next hearing … he would then plead guilty on behalf of the Defendant.
(Emphasis
supplied.)
The
magistrates granted an adjournment. Their reasons were as follows:
a. The local
authority had started the work.
b. The
occupant had not responded to a local authority request for permission to
start.
c. The local
authority had acted reasonably. They were first notified of the matter on May
23 1996.
d. The local
authority had made their initial response within 21 days.
e. The local
authority had kept the prosecution informed of the position.
f. After a
nine-week adjournment the work would have been completed in fourteen weeks.
We observe
that the only reason for the adjournment was to give the council the
opportunity to abate the statutory nuisance. Although it was suggested that
there might have been other reasons why an adjournment could have been granted,
they were not the reasons why it was, in fact, granted. We also note that it
was not disputed by the legal representative that a statutory nuisance existed
at the time of the hearing; indeed, the very fact that it existed formed the
basis of the request for the adjournment.
It is
important to appreciate why it was that Mr Geffen requested a plea to be
entered. If a plea of guilty had been entered, the court would have had power
to award compensation under section 35 of the Powers of Criminal Courts Act
1973.
The wide
discretion as to whether to grant an adjournment conferred by section 10 and
section 54 of the Magistrates’ Court Act 1980 cannot usually be impugned. But
it is a power which must not be exercised in a manner which undermines the
statute under which the proceedings are brought or in a way which deprives a
litigant of rights conferred by that statute. An adjournment cannot be granted
if the only purpose is to avoid the consequences which the law provides will
follow, should the hearing continue. In R v Walsall Justices, ex
parte W [1990] 1 QB 253, this court quashed a decision of the justices to
adjourn proceedings pending a change of the law which would have permitted
uncorroborated unsworn evidence to be relied upon by the court. The court said:
Quite apart
from rights vested in the defendant are the duties and responsibilities of the
court. It is common ground that it would be unjudicial for a court (as in R
v Boteler 4 B&S 959) to refuse to apply the substantive law on the
ground that the court regarded that law as unfair or wrong.
As that court
pointed out, a defendant has no unqualified right to a trial on the day fixed
for the hearing. We agree with Mr Matheson QC that the case might have been
adjourned without taking a plea for a number of reasons. However, in this case
the only reason for not taking a plea and adjourning the case was to enable an
existing statutory nuisance to be abated. We cannot conceive, in the light of
the acceptance that a statutory nuisance did exist at the date of that hearing,
that the legal representative would, if an adjournment had been refused, have
entered a plea of not guilty merely to take advantage of the absence of
witnesses.
In our
judgment, the effect of granting the adjournment was to deprive the applicant
of the right to claim compensation, a right which had accrued because on that
date it was accepted that a statutory nuisance existed. The magistrates’ error
lay in failing to appreciate that that right, under the statutory scheme we
have described above, arose despite the fact that they took the view that the
local authority had acted reasonably and, by implication, that they considered
that it was unnecessary to institute proceedings. The reasons they give are not
capable, as a matter of law, of justifying the grant of an adjournment. The
applicant had a right to bring those proceedings, and if at the date of hearing
there was no dispute that a statutory nuisance existed, the
do so would avoid the consequence of a conviction under section 82(2) and the
right to compensation.
Mr Matheson QC
argued that the point was academic now that the work had been completed and
that, in those circumstances, we should not grant any relief. The applicant, in
our view, is entitled to a declaration in the terms of the amended application.
Such a declaration is not academic since it may form the basis of any claim she
wishes to pursue with the council for compensation. The right to compensation
under section 35 of the 1973 Act following a conviction under section 82(2) of
the 1990 Act is important; it may be the only way that a tenant can recover any
compensation.
Accordingly,
we shall grant the relief sought by Mrs Hollis.
Agreeing, SCHIEMANN
LJ said: For the reasons set out in the judgment that has been handed down,
the application for judicial review will be granted and a declaration made in
terms of the amended application.
As far as the
appeals by way of case stated are concerned, they will be allowed. The answers
to the questions will be ‘no’ to the first question, ‘no’ to the second
question, and to the third, there was not sufficient evidence to permit the
court to find that all of the costs incurred by the appellant were not properly
incurred. As we indicated in the judgment, we are happy to hear you further on
the subject of what we ought to do by way of case stated.
