Abbey Mine Ltd v The Coal Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Laws,Lord Justice Rix,Lord Justice Dyson |
| Judgment Date | 16 April 2008 |
| Neutral Citation | [2008] EWCA Civ 353,[2007] EWCA Civ 1005 |
| Docket Number | Case No: C1/2007/1202 & C1/2007/1202(B),Case No: C1/2007/1202 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 April 2008 |
[2007] EWCA Civ 1005
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MRS JUSTICE DOBBS DBE)
Lord Justice Waller
(Vice President of the Court of Appeal, Civil Division)
Case No: C1/2007/1202
Mr R Griffiths QC (instructed by Messrs John Morris) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
The applicant unsuccessfully applied for an underground coal mining licence and demise (?) of coal in the Margam area of South Wales. The licence was in fact awarded to Corus UK Limited, the steel making company. The applicant sought a review under a procedure available under the Coal Industry Act 1994. There was a review hearing, following which the coal authority upheld the original decision by letter of 16 December 2005. The applicant was granted permission to move for judicial review of that coal authority's decision. Various grounds of attack were relied on at the hearing before Dobbs J who, by a judgment dated 18 May 2007, dismissed the application. She also refused permission to appeal. An application for permission came before Wall LJ, who adjourned the matter into open court, making one or two observations to support his view that he was far from persuaded that the judge was wrong.
In the result, the matter has come before us today with the time estimate of one hour. By a detailed skeleton argument, Mr Robert Griffiths is seeking to argue a number of points in the Court of Appeal. In the skeleton they are described as important points, in particular as to the scope of the duty to act fairly in the context of a very significant commercially valuable decision to award rights under the Coal Industry Act 1994. The points relate, amongst other things, to: the extent of the use of disclosure; the extent to which an opportunity should be given to deal with possible criticisms of the applicant; the extent to which full opportunity should be given to deal with points generally.
On looking at the papers, we have come to the view that the points to be argued are at least serious ones, and are ones for which the applicant should be given permission to argue the same before a full court, and it is on that basis that we are granting permission to appeal. There is an application to put in a witness statement to deal with the document that was only disclosed during the hearing before Dobbs J; that can be dealt with by the full court; we make no ruling on that. There is also an application to stay the order for costs. What happened was that security for £90,000 was given for costs before the hearing before Dobbs J. At the conclusion of the hearing she ordered payment of £50,000 on account. We understand that sum to have been paid from the £90,000 security, and, of course, that would then leave a situation in which the coal authority could apply for an assessment of their costs in, order to seek to recover more than the £50,000 paid, or indeed an assessment may result in less than £50,000 being the appropriate sum. In essence, the application for a stay is to stay that assessment pending this appeal. That, as it seems to us at present, seems a very sensible order to stay that assessment, but, of course, if the coal authority wish to challenge that aspect of this ruling we could give them liberty to apply.
One other aspect needs mentioning, which is that it seems that there will be no coal mining in this area while these proceedings are continuing. Corus are named, at least in the order that Dobbs J made, as an interested party. There is no reason to think, from the papers we have seen, that anybody so far has thought that the proceedings need to be expedited; but if either the coal authority or Corus had reason to think that there was a basis for expedition, well, then again, that can be dealt with on application to this court. Otherwise, the matter should take its ordinary place in the list.
Order: Application granted.
[2008] EWCA Civ 353
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Mrs Justice Dobbs
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Rix and
Lord Justice Dyson
Case No: C1/2007/1202 & C1/2007/1202(B)
Mr Robert Griffiths QC and Mr Andrew Tabachnik (instructed by Messrs John Morris) for the Appellant
Mr Christopher Vajda QC and Mr Josh Holmes (instructed by Messrs Nabarro) for the Respondent
Hearing dates : 5 & 6 February 2008
INTRODUCTION
This is an appeal by the claimant, to whom I shall refer as Abbey Mine, against a judgment of Dobbs J given in the Administrative Court on 18 May 2007, by which she dismissed Abbey Mine's application for judicial review of the decision of the defendant, the Coal Authority (“the Authority”), contained in a letter dated 16 December 2005 (“the second decision letter”). By the second decision letter the Authority confirmed an earlier decision notified in a letter of 9 September 2005 (“the first decision letter”). The effect of these decisions was to offer an underground coal mining licence and demise of coal in relation to the Margam area of South Wales to Corus UK Limited (“Corus”) rather than Abbey Mine, both companies having put in bids. Permission to appeal to this court was granted by Waller and Lawrence Collins LJJ at an oral hearing on 25 July 2007.
The challenged decision was made by the Authority in the exercise of functions conferred by the Coal Industry Act 1994 (“the 1994 Act”), which provides a comprehensive statutory scheme for the licensing and management of coal mining in the United Kingdom. S.1 establishes the Authority. By s.1(1) its purposes include:
“(a) holding, managing and disposing of interests and rights in or in relation to the unworked coal and other property which is transferred to or otherwise acquired by it by or under this Act;
(b) carrying out functions with respect to the licensing of coal-mining operations…”
S.2 provides in part:
(1) It shall be the duty of the Authority to carry out its functions under Part II of this Act in the manner that it considers is best calculated to secure, so far as practicable -
(a) that an economically viable coal-mining industry in Great Britain is maintained and developed by the persons authorised by virtue of that Part to carry on coal-mining operations;
(b) that such persons are able to finance both the proper carrying on of the coal-mining operations that they are authorised to carry on and the discharge of liabilities arising from the carrying on of those operations…
(2) Subject to section 4 below, it shall be the duty of the Authority, in carrying out its functions under Part II of this Act, to have regard to the desirability of securing -
(a) that persons authorised by virtue of that Part to carry on coal-mining operations are persons who have at their disposal such experience and expertise in the carrying on of such operations as are appropriate for ensuring that any authorised operations are properly carried on; and
(b) that competition is promoted between the different persons carrying on, or seeking to carry on, coal-mining operations…
S.3:
“(1) It shall be the duty of the Authority, in carrying out the functions mentioned in section 1(1)(a) above, to have regard to -
(a) the need to co-ordinate its practice in relation to relevant property dealings with the carrying out of its functions under Part II of this Act; and
(b) the need to secure the safety of members of the public.
(2) Subject to subsection (4) below, it shall be the duty of the Authority, so far as practicable, to make available for acquisition by others such of its land and other property as -
(a) does not consist in an interest in any unworked coal or coal mine;
(b) is not being put to a use which justifies its retention by the Authority; and
(c) in the opinion of the Authority, is unlikely to be required for any such use.
…
(4) Subject to subsection (6) below, it shall be the duty of the Authority, where it disposes of any interests or rights in or in relation to any land or other property, to secure the best terms reasonably available for the disposal.
(5) Subject to subsection (6) below, it shall be the duty of the Authority, in the exercise and performance of its powers and duties with respect to its land and other property, to have regard to the desirability of the exploitation, so far as that is economically viable, of coal-bed methane in Great Britain…”
Part II of the 1994 Act contains detailed provisions relating to the licensing of coal mining operations. S.30 requires the Authority to publish details of the manner in which it proposes to exercise and perform its licensing powers and duties. Pursuant to s.30, Guidance Notes have been published; as I shall show, they play some part in the issues in the appeal.
THE FACTS
As the judge below said in paragraph 3 of the judgment:
“The Margam area of South Wales contains a large quantity of un-mined high quality coal (and coal bed methane from which electricity can be generated). Margam coal is particularly suited to use as coking coal for steelmaking and for use in...
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