R We Love Hackney Ltd v London Borough of Hackney
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Farbey |
| Judgment Date | 17 April 2019 |
| Neutral Citation | [2019] EWHC 1007 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4222/2018 |
| Date | 17 April 2019 |
[2019] EWHC 1007 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Farbey
Case No: CO/4222/2018
Philip Kolvin QC and Christopher Knight (instructed by Leigh Day) for the Claimant
David Matthias QC and Charles Streeten (instructed by London Borough of Hackney) for the Defendant
Hearing date: 27 March 2019
Approved Judgment
The claimant has permission to apply for judicial review of the decision of the defendant on 18 July 2018 to adopt a revised statement of licensing policy (“SLP”). The revised policy made changes to Special Policy Areas (“SPAs”) within the London Borough of Hackney and changed the core hours policy for licensed premises within the Borough. Lavender J granted permission on consideration of the papers. At the same time, he dismissed the claimant's application for a costs capping order (“CCO”) and directed that the defendant's application for security for costs be listed for hearing.
The claimant renewed its application for a CCO. On 14 February 2019, Lieven J directed that the renewed application be heard at the same time as the defendant's application for security. I heard both applications. Mr Philip Kolvin QC and Mr Christopher Knight appeared on behalf of the claimant. Mr David Matthias QC and Mr Charles Streeten appeared on behalf of the defendant.
Most of the time at the hearing concerned the CCO application. The court was provided with over 1,500 pages of documents. Given the nature of the issues, the volume of documents was disproportionate and undermined the court's expectation that such applications ought not to become a source of expensive satellite litigation in their own right: R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600, para 79.
Background to the judicial review claim
As the Council of a London borough, the defendant is the licensing authority for Hackney and is required, in carrying out its licensing functions, to have regard to its SLP (section 4(3) of the Licensing Act 2003). On 18 July 2018, at a meeting of the full Council, the defendant decided to adopt a revised SLP. In doing so, Council members took into consideration the report of Kim Wright who was the Group Director for Neighbourhoods and Housing, together with other documents and reports including an Equality Impact Assessment. The SLP was designed to promote the four licensing objectives under section 4(2) of the 2003 Act: the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm.
The claimant objects to two particular aspects of the revised SLP. First, the defendant has changed its core hours policy so that alcohol can no longer generally be sold after midnight on Fridays and Saturdays. The policy states that later hours may be considered where the applicant for a licence has identified any risk that may undermine the promotion of the statutory licensing objectives and has put in place robust measures to mitigate those risks. The claimant maintains that this is an unworkable and unreasonable restraint on operators who seek to apply for late night opening which will discourage innovation.
The claimant also objects to the extension of the Shoreditch SPA and the retention of the Dalston SPA. In broad terms, the defendant has concluded that the high concentrations of licenced premises in Shoreditch and Dalston has given rise to cumulative negative impact on the licensing objectives (as set out in the defendant's Cumulative Impact Assessment of 2017). Applications for licences in those areas are therefore subject to a special policy, namely a rebuttable presumption that they will be refused unless the applicant can demonstrate that there will be no negative cumulative impact that is currently being experienced in those areas.
There has in some form been a Shoreditch SPA since 2005 and a Dalston SPA since 2013. The cumulative impacts specifically mentioned in the Hackney Licensing Policy Consultation document of 2017 were antisocial behaviour, public nuisance, crime, and noise intensified by a significant number of licensed premises concentrated in one area. The claimant's view is that the extension of the Shoreditch SPA lacks a firm evidential foundation; and the Dalston SPA will restrict new music and dance venues.
The claimant campaigned actively during the various consultative steps that the defendant took before introducing the SLP. In particular, when still an unincorporated body, the claimant submitted detailed representations entitled “Licensing Policy in a 24 Hour City: Proposal for Hackney's Future” (July 2016). The campaign was nevertheless not successful and so, following a number of pre-action letters, the claimant filed an application for judicial review on 17 October 2018.
The grounds for judicial review are twofold. First, the claimant has submitted some post-decision evidence about those who have protected characteristics under equality law. In particular, it is said that the LGBTQ+ community will be prejudiced by the changes because, for this community, the bars and clubs of Hackney are important cultural spaces. The claimant contends that the defendant had no regard to the public sector equality duty (“PSED”) laid down by section 149 of the Equality Act 2010. Secondly, it is submitted that Kim Wright's report to councillors did not fairly address competing views on the merits of the SLP and failed to draw the attention of councillors to material and relevant considerations. In response, the defendant filed summary grounds of resistance on 19 November 2018.
Lavender J regarded both grounds of challenge as arguable and granted permission on 25 January 2019. The application for a CCO before Lavender J was that:
(i) Any liability of the claimant for the defendant's costs of the judicial review proceedings be capped at £35,000.
(ii) Any liability of the defendant for the claimant's costs be capped to reasonable hours at the rates paid to counsel by the Government Legal Department and the rates for solicitors charged by GLD.
The latter limb of the application recognised the need for reciprocity under section 89(2) of the Criminal Justice and Courts Act 2015. The reference to GLD rates reflects the courts' acceptance of those rates as a suitable “benchmark of modesty” ( R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2013] EWHC 3164 (Admin), para 67(1)).
In refusing the application, Lavender J concluded that the proceedings are not public interest proceedings. He considered that, even if they were, this would not be an appropriate case for a CCO because the claimant was formed by, among others, wealthy individuals who have a commercial interest in the litigation.
The claimant renews the application for an order in the same terms considered by Lavender J. Before I turn to the formation of the claimant company, I shall set out the essential legislative framework which governs the claimant's application for a CCO.
Legislative framework
Statutory provision for capping of costs in judicial review proceedings is made by sections 88 and 89 of the Criminal Justice and Courts Act 2015. Section 88(6) provides:
“The court may make a costs capping order only if it is satisfied that—
(a) the proceedings are public interest proceedings,
(b) in the absence of the order, the applicant for judicial review would withdraw the application for judicial review or cease to participate in the proceedings, and
(c) it would be reasonable for the applicant for judicial review to do so”.
Section 88(7) provides:
“The proceedings are ‘public interest proceedings’ only if—
(a) an issue that is the subject of the proceedings is of general public importance,
(b) the public interest requires the issue to be resolved, and
(c) the proceedings are likely to provide an appropriate means of resolving it”.
By virtue of section 88(8), the matters to which the court must have regard when determining whether proceedings are public interest proceedings include:
“(a) the number of people likely to be directly affected if relief is granted to the applicant for judicial review,
(b) how significant the effect on those people is likely to be, and
(c) whether the proceedings involved consideration of a point of law of general public importance”.
The court must have the section 88 factors in mind but may take other factors into consideration ( R (Hawking) v Secretary of State for Health and Social Care [2018] EWHC 989 (Admin), para 11). Although section 88(8)(a) mentions the number of people likely to be directly affected by the grant of relief, the court is not precluded from taking into account the interests of those who would be indirectly affected ( R (Beety) v Nursing and Midwifery Council [2017] EWHC 3579 (Admin), para 19).
Section 89 of the 2015 Act makes further provision as to the matters to which the court must have regard when considering whether to make a costs capping order and what the terms of such an order should be. Those matters include: (a) the financial resources of the parties to the proceedings, including the financial resources of any person who provides, or may provide, financial support to the parties; (b) the extent to which the applicant for the order is likely to benefit if relief is granted to the applicant for judicial review; (c) the extent to which any person who has provided, or may provide, the applicant with financial support is likely to benefit if relief is granted to the applicant for judicial review; (d) whether legal representatives for the applicant for the order are acting free of charge;...
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