Key Cabs Ltd (T/A Taxifast) v Plymouth City Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 09 November 2007 |
| Neutral Citation | [2007] EWHC 2837 (Admin),[2007] EWHC 2800 (Admin) |
| Date | 09 November 2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4369/2006,CO/7689/2006 |
[2007] EWHC 2800 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Mitting
CO/7689/2006
Mr Alan Newman QC (instructed by Messrs Ashfords, Plymouth) appeared on behalf of the Claimant
Mr James Findlay (instructed by Plymouth Legal Services) appeared on behalf of the Interested Party
On 7th March 2006, after an 11-day hearing, the Crown Court at Plymouth, presided over by Mr Recorder Fuller QC, allowed an appeal by Key Cabs Ltd ("the claimants") against the refusal to grant one hackney carriage licence by Plymouth City Council ("Plymouth"). It rejected the claimant's appeal against the refusal to grant 29 further licences, for reasons which I have already dealt with in the appeal by way of case stated against that decision. It is common ground that the issue concerning those 29 licences occupied little of the time of the court below.
The main issue was whether or not Plymouth had established that there was no unmet demand within its area for more hackney carriages than were already licensed. On that issue the claimant won. There were four significant evidential matters which bore upon it: the questionnaire conducted by Mayflower, as subcontractors of the agency retained by Plymouth to test public opinion in Plymouth; observations at taxi ranks; a consultation exercise; and the processing of the data produced by the first two. Much of the first week, from 6th to 10th February 2006, was spent on the first issue.
By the time the hearing resumed, on 28th February 2006, the claimant had obtained evidence that the survey was in significant part bogus. The evidence which they called to that effect on 2nd and 3rd March 2006 was accepted as true and reliable by the court, and the contrary evidence as unreliable. The court's conclusion was that the survey was "seriously reduced in its impact and effect", so much so that the court in fact said that it would refer the survey papers to the Director of Public Prosecutions.
The court accepted the evidence of rank observation as far as it went, but concluded that there was no reliable evidence about an issue which it said was important: delays in flagging down hackney cabs in the street. It accepted that the consultation exercise was properly conducted and provided a representative sample, and that the method used to process data was appropriate. Its overall conclusions are set out in paragraph 57 of its judgment:
"57. On the first issue we are not satisfied that the data produced by the Mayflower questionnaires is sufficiently extensive or reliable. There may well have been some properly conducted questionnaires but in a large part our view is that the necessary representative sample of Plymouth has not been given a voice in this survey. The survey contains important questions in our view, such as those dealing with waiting times for flag downs and this question in the absence of other data, as I have said earlier, remains unanswered. Whilst accepting in large part the overall reliability of the rank survey conclusions, we do not consider that the questionnaire is of such secondary importance that the respondents can rely wholly on rank observation and consultation to discharge the burden upon them, even bearing in mind the questionnaire's secondary importance, we consider it an important background against which other data can be scrutinised. It is also a valuable tool in identifying suppressed demand. Accordingly we are unable to accept that the respondent has established on the balance of probabilities that there is no significant unmet demand."
The court then heard submissions on costs. Its attention was drawn by both sides to City of Bradford MDC v Booth, 10th May 2000, especially paragraph 26, in which Lord Bingham CJ stated:
"Where a complainant has successfully challenged before justices an administrative decision made by a police or regulatory authority acting honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both (i) the financial prejudice to the particular complainant in the particular circumstances if an order for costs is not made in his favour; and (ii) the need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged."
In a short judgment, it determined that Plymouth should pay 60 per cent of the claimant's costs:
"The appellant in this case has been successful and Mr Newman submits that costs should follow, as generally they may. The consideration that we are now asked to bring to bear by Mr Findlay revolves around the fact that as he submits, with some force, the length of these proceedings has been driven by the headlong assault, as he calls it, by the appellant on the respondent's methodology in the unmet demands survey, and also by seeking through evidence to establish significant unmet demand.
In both these respects, as our judgement has made clear, the appellant has failed. The Council have, in our view, acted reasonably throughout in resisting this appeal. But, unusually in this case, through the appellant's investigation, have been able to show that the Council had been the recipients, unknown to them, of a report that was flawed in a particular respect, which enabled the appeal to be successful.
Mr Findlay has reminded us of the parts of the judgement in Bradford and Booth. He also suggests that there is an absence of particular prejudice to the appellant, if he had to shoulder the costs. Though shouldering the costs of an appeal like this cannot be regarded as anything else but to an appellant's prejudice. And he also, as does Mr Newman, reminds us of the overriding duty that we must abide by and that is to do justice between the parties as best we can.
What we consider a just and reasonable award in the circumstances of this case, taking a broad view of the issues that have been raised, won and lost, and considered in this case, we consider that the fair and proper way to deal with the costs in this case is [to] order that the respondents pay 60 per cent of the appellant's costs. That will, of course, hereafter be subject to detailed assessment."
On 8th March 2006 Mr Preece, the claimant's managing director, issued a press statement, which read:
"The costs of this case have exceeded £450,000.00 and there should be a transparent inquiry set up to examine the Council's performance in this matter. Taxifast has had to fight with a budget against a bottomless tax payer's purse and one has had to ask why? We are currently considering our position of the Court ordering the Council to pay 60% of our costs and the Council have to pay 100% of their own."
On 10th March Plymouth wrote to the court a letter in which they sought to reopen the question of costs. The opening paragraphs read:
"With some considerable reluctance the City Council respectfully requests that you reopen your decision as to costs because of information that has come to light as to the likely magnitude of those costs.
At the hearing, you were addressed on the basis that costs were likely to be well over £150,000. That was a figure mentioned by our counsel, without correction by the Appellants. However, it appears from the attached newspaper article that costs are likely to be in excess of £450,000. That figure is not just over or well over £150,000, it is an extraordinary sum even for an 11 day hearing."
The letter went on to seek the reopening of the costs issue on the basis of written submissions.
The implication in the paragraph that I have read was that Mr Preece had said that the claimant's costs were £450,000. But that is not a fair reading of his press statement, let alone of what his solicitors pointed out in the letter from which I have taken the statement, that it was intended to refer to both sides' appeal costs and also to two other judicial review proceedings brought by the claimant against Plymouth.
On 10th March 2006 the court notified the claimant's solicitors as follows:
"An application has been made by the Respondent, Plymouth City Council to re-open the question of costs.
The Judge has granted the request and has directed that written submissions should be filed with the Court within 7 days from today, i.e. 17th March 2006 so that the question of costs can be considered by the bench.
Whilst writing, may I also ask that you indicate to the Court whether it is preferable that the matter be brought back before the Court at a hearing or whether a written judgment would suffice. Of particular note should be the fact that the order for costs is being amended under the slip rule, which allows 28 days for amendments."
That letter was doubly erroneous. First of all, the claimants should have been invited, before a decision was made as to whether or not it was proper to reopen the question, for their views upon that issue. Secondly, the reference to the slip rule was clearly erroneous. It played no part and could play no part in any decision to reopen the decision on costs. As it turns out, neither of those errors in the letter are material.
On 16th March the claimant's solicitors provided an estimate and breakdown of the claimant's costs...
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