Cook v Southend-on-Sea Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WOOLF,SIR JOHN MEGAW,LORD JUSTICE DILLON |
| Judgment Date | 26 July 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0726-5 |
| Docket Number | 89/0803 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 July 1989 |
[1989] EWCA Civ J0726-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Simon Brown)
Royal Courts of Justice
Lord Justice Dillon
Lord Justice Woolf
and
Sir John Megaw
89/0803
MR. W. PAWLAK (instructed by Messrs Jefferies, Southend on Sea, Essex) appeared on behalf of the Appellant/Appellant.
MR. S. REID (instructed by the Borough Solicitor) appeared on behalf of the Respondent/Respondent.
The appellant, Geoffrey Charles Cook, is a taxi driver. His appeal to this court is the last of a long line of appeals which resulted from the decision of the Southend Borough Council ("the Council") to revoke Mr. Cook's hackney carriage driver's licence pursuant to s.61(1)(b) of the Local Government (Miscellaneous Provisions) Act 1976 and his hackney carriage vehicle licence pursuant to s.60(1)(c) of that Act.
Mr. Cook has been a taxi driver and a taxi owner for a great many years but on 25th April 1984 he pleaded guilty to an offence of blackmail and for this he was sentenced to nine months' imprisonment suspended for 18 months.
The Council imposes stringent standards upon new applicants for hackney carriage vehicle or driver's licences including a requirement that the applicant should not within the last seven years have been convicted of a serious criminal offence and it was in accordance with the policy reflec-ted in this practice that the Council determined to revoke both licences.
Mr. Cook decided to appeal. He had a right to appeal under s.60(3) and s.61(3) of the 1976 Act. It is relevant to note that those subsections respectively give "any proprietor aggrieved" and "any driver aggrieved" by the decision of the Council the right to appeal "to a magistrate's court".
Mr. Cook's appeal to the Magistrate's Court was successful and the magistrates ordered the Council to pay the sum of £100 by way of costs to Mr. Cook. Although there were separate appeals before the magistrates as to the respective decisions of the Council to revoke Mr. Cook's driver's licence and vehicle licence, the order for costs, when the orders were drawn up, was only shown as applying to the appeal against the revocation of the driver's licence. However, in accord with the realistic and helpful approach he adopted throughout his submissions on behalf of Mr. Cook, Mr. Pawlak very properly did not attach any significance to the manner in which the orders of the magistrates were drawn up in relation to costs.
From the decision of the magistrates which was given on 23rd November 1984, the Council appealed to the Southend Crown Court and on 22nd March 1985 the Crown Court allowed that appeal. Mr. Cook then appealed by way of case stated by the Crown Court to the High Court and on 1st April 1987, in a reserved judgment, Simon Brown J. dismissed that appeal and so it is from the decision of Simon Brown J. that Mr. Cook now appeals to this court.
The argument both before Simon Brown J. and this court was confined to the question as to whether or not the Council has any right of appeal to the Crown Court against an adverse decision of the Magistrates' Court. The answer to this question depends upon whether or not for the purposes of the relevant statutory provisions the Council is to be regarded as "a person aggrieved". Who is to be regarded as a person aggrieved is still a matter of considerable importance in relation to many statutory appeals and has been the subject of a great many decisions by the Divisional Court. Many of the decisions were cited on this appeal. They were binding upon Simon Brown J. but are not binding on this court. Because of those decisions Simon Brown J. felt "constrained by authority to reject" the appeal. He did so on the basis which he found unsatisfactory, namely that if the magistrates had not made an order for costs the Council would not be a person aggrieved but because an order for costs was made the Council was a person aggrieved. I agree with Simon Brown J. that this is an unsatisfactory and illogical position since it means that, so far as the right to appeal is concerned, the Council is in a better position and Mr. Cook is in a worse situation if an order for costs is made than would be the case if no order for costs had been made in Mr. Cook's favour.
The right to appeal arises under s.301 of the Public Health Act 1936 which gives a general right of appeal in relation to a number of different types of decisions in proceedings by local authorities under the Act of 1936 and other Acts to which s.301 is applied. The provisions of s.301 apply to the decision of the Magistrates' Court in this case because of s.7(1) of the 1976 Act which provides:
"Sections 300 to 302 of the Act of 1936, which relate to appeals shall have effect as if this Part of this Act were part of that Act."
Section 301 of the 1936 Act provides:
"Subject as hereinafter provided, where a person aggrieved by any order, determination or other decision of a court of summary jurisdiction under this Act is not by any other enactment authorised to appeal to [the Crown Court] he may appeal to such a court:
Provided that nothing in this section shall be construed as conferring a right of appeal from the decision of a court of summary jurisdiction in any case if each of the parties concerned might under this Act have required that dispute should be determined by arbitration instead of by such a court."
The question of who is "a person aggrieved" for the purpose of giving a right to make an application to a court or other judicial or quasi-judicial body has been the subject of a great many reported decisions of the courts going back from the present day to the nineteenth century. However, the majority of the decisions are at first instance and not binding on this court. They draw arbitrary and unsatisfactory distinctions between different statutes and situations and lead to needless highly technical arguments as to locus standi. In these circumstances it is, I hope, useful if I set out certain general propositions which I would expect to apply where the expression "a person aggrieved" is used in relation to a right of appeal in the absence of a clear contrary intention in a particular statutory context:
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(a) A body corporate including a local authority is just as capable of being a person aggrieved as an individual.
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(b) Any person who has a decision decided against him (particularly in adversarial proceedings) will be a person aggrieved for the purposes of appealing against that decision unless the decision amounts to an acquittal of a purely criminal offence. In the latter case the statutory context will be all important.
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(c) The fact that the decision against which the person wishes to appeal reverses a decision which was originally taken by that person and does not otherwise adversely affect that person does not prevent that person being a person aggrieved. On the contrary it indicates that he is a person aggrieved who is entitled to exercise the right of appeal in order to have the original decision restored.
Turning to the circumstances giving rise to this appeal in the absence of authority I would have no hesitation in coming to the conclusion that irrespective of whether or not the magistrates had made an order for costs, the Council had a right of appeal under s.301. The purpose of entrusting the Council with the power of granting licences to drivers of hackney carriages and in respect of hackney carriages is so that the public in the locality will be provided with a suitable taxi service. This involves proper standards being maintained as to driver's and vehicle licence holders. Although there is an appeal to magistrates, and that appeal is a re-hearing, the magistrates are entitled to take into account the policy of the Council. As Lord Goddard C.J. said in Stepney Borough Council v. Joffe [1949] 1 K.B.599, at p.602:
"If there is an unrestricted right of appeal, it is for the court of appeal to substitute its opinion for the opinion of the borough council. That does not mean to say that the court of appeal, in this case the Metropolitan Magistrate, ought not to pay great attention to the fact that the duly constituted and elected local authority have come to an opinion on the matter and it ought not lightly of course, to reverse their opinion."
Where, as for example here, the magistrates have departed from a policy which the Council has in relation to who is an appropriate person to hold a licence, I consider the Council can justifiably feel aggrieved. Furthermore, the Council would, in the context of the statutory provisions here being considered, clearly be a "person" because of the application of the Interpretation Act 1978 (previously the Interpretation Act 1889) which provides that unless a contrary intention appears "person includes a body of persons corporate or unincorporated There is nothing in the context of s.301 or the other provisions of the 1936 Act which indicate a contrary intention and the contrast between the language of s.301 of the 1936 Act and s.60(3) and s.61(3) of the 1976 Act which have to be treated as part of the 1936 Act, referring as they do specifically to a "driver" and "proprietor" emphasise that this is the position.
However, there are the authorities, to which I must now turn, the majority of which indicate that in the past the courts have adopted an unduly restrictive approach to who is a person aggrieved unlike the approach on an application for judicial review under order 53 where the test is whether the applicant "has a...
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