Robert Boyce and Another v Horsham Magistrates' Court The Marine Management Organisation (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Mr Justice Globe |
| Judgment Date | 08 July 2014 |
| Neutral Citation | [2014] EWHC 2462 (Admin) |
| Docket Number | CO/305/2014 |
| Date | 08 July 2014 |
| Court | Queen's Bench Division (Administrative Court) |
[2014] EWHC 2462 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
The Strand
London
WC2A 2LL
Lord Justice Aikens
and
Mr Justice Globe
CO/305/2014
The Queen on the Application of
Mr Jonathan Ashley-Norman (instructed by Hickman & Rose, London EC1R 0DB) appeared on behalf of the Claimants
The Defendant was not represented
Mr Jeremy Phillips (instructed by Browne & Jackson LLP) appeared on behalf of the Interested Party
Tuesday 8 th July 2014
Mr Justice Globe will give the first judgment.
1. By an application dated 22 nd January 2014 the claimants applied for permission to seek judicial review of the order of District Judge Ashworth sitting at the Horsham Magistrates' Court on 2 nd December 2013 that each should pay £15,000 in costs following their convictions for an offence of constructing coastal protection measures without a marine licence. On 6 th May 2014 Nicola Davies J adjourned the application to this court for an oral hearing. The primary purpose of the adjournment is the determination of the issue raised by the interested party, namely, whether judicial review is the appropriate remedy.
The Facts
2. The claimants are the owners and operators of the marina called the Littlehampton Yacht Club, which is operated through a company called the Littlehampton Yacht Club Limited. They were charged with an offence contrary to the Marine and Coastal Access Act 2009, namely that, between 22 nd September 2011 and 9 th March 2012, they caused or permitted another person to carry on a licensable activity, namely the construction of a concrete sill, wall and platform, otherwise than in accordance with their marine licence. There were two interim hearings, and a trial lasting four days on 17 th, 18 th and 19 th September and 21 st October 2013. Judgment was delivered on 2 nd December. Both claimants were convicted. The first claimant was fined £2,000; the second claimant was conditionally discharged for one year. Each was ordered to pay a contribution of £15,000 towards the prosecution costs.
3. The licensing regime created by the Act exists to control works carried on within the marine environment which, essentially, is the sea or tidal waters below the high water mark of the spring tide. The construction of unauthorised works has the potential to impact negatively upon the marine environment, including protected species, public health and safety, and/or the legitimate uses of the sea. When the claimants purchased the Littlehampton Yacht Club it was in need of retrospective planning approval with a view to improving it and making it profitable. The frontage of the marina is within the marine environment. The claimants obtained official permission to erect a line of concrete plinths below the high water mark of the spring tide as a temporary and emergency measure against the threat of erosion by estuary water washing away the aged defences protecting the marine frontage. In accordance with that permission, they laid concrete plinths, filling in behind them with earth or rubble, and lay more concrete plinths horizontally in front of the new sea defence.
4. The complaint that was made related to additional work that was carried out. Concrete was poured into the horizontally configured plinths in front of the sea defence, creating a solid concrete sill in front of, and protecting, the bottom of the plinth wall. The plinths were fastened together with metal cross-beams. Concrete was poured on top of the plinths to cap them together. A concrete platform and a wall to the slipway were created. A foam sealant was injected between the plinths. The back-fill behind the wall was levelled, turfed, and a shingle parking area created. Provision was made for a ferry embarkation point midway along the new wall, and a ferry service began to run.
5. Of these activities, the sill in front of the wall and the concrete platform on the slipway wall fell below the high water mark of the spring tide and were therefore within the remit of the Interested Party.
6. The claimants required permission. The question for the court was whether the original permission covered those works, or, if not, whether the claimants were able to rely on statutory defences for their activities.
7. The claimants raised a number of challenges to the prosecution case. They alleged that the prosecution was an abuse of process due to a failure to follow its own enforcement strategy; alternatively, the works were exempt from the need for any licence; alternatively, the original permission was an appropriate licence covering all of the works; alternatively, if not an actual licence, it was still permission to carry out all of the works; alternatively, it covered part of the works and was expanded by agreement to cover the balance; alternatively, it was a statutory defence that the works were emergency works; alternatively, there was a statutory defence that they had exercised all reasonable diligence to avoid the commission of an offence.
8. After hearing evidence and legal submissions, the District Judge rejected each and every one of the defences, passed sentence, and made the costs orders already referred to.
9. In relation to costs, the prosecution application was for the sum of £36,083.80. The court was provided with a statement of assets, income and expenditure of the claimants, which had been created in support of the claimants' application for a mortgage. Excluding the equity in the family home, their joint net assets amounted to £6,384. Taking into account the equity in the family home, the joint net assets amounted to £85,183. Their joint annual income was £5,711. Their monthly income exceeded expenditure by about £130. The accounts of the Littlehampton Yacht Club Limited for the year ended 30 th June 2013 were also presented to the court. They indicated a gross profit for the year ended 30 th June 2012 of £68,968, with a net profit of £11,966; and a gross profit for the year ended 30 th June 2013 of £85,492, with a net profit of £12,234. The balance sheet revealed net assets of £28,253 for the year ended 30 th June 2012, and £37,563 for the year ended 30 th June 2013.
10. The claimants' Statement of Facts refers to submissions being made in relation to all of these financial matters and other matters. That has been confirmed in oral submissions before us this morning. The contents of the documents presented to the court were not challenged before the court. The District Judge was addressed on the basis that the yacht club is not secure. It faces significant costs in the medium term, including coastal protection works to the satisfaction of the Interested Party. Reference was also made to other lesser assets in respect of which the first named claimant has an interest, but which did not materially influence the financial position of either claimant.
11. There is no appeal against the conviction or the sentences. The application solely relates to the costs orders.
The Application
12. The claimants seek orders quashing the costs orders imposed on each of them and substituting such costs, if any, as the court considers just and reasonable. The claimants rely upon five grounds, all of which are based on an analysis of the principles derived from R v Northallerton Magistrates, ex parte Dove [2000] 1 Cr App R(S) 136.
13. The Interested Party raises two matters in response to the application. First, the Interested Party contends that any challenge to the costs orders should not have been by way of an application for judicial review. There was an alternative remedy available to the claimants, namely, an application to the District Judge to state a case. No such application has been made in time or at all. The effect is that there is an absence of an agreed statement of facts and matters that the District Judge took into consideration in reaching his decision. The absence of the same places this court in a very difficult position within the ambit of judicial review proceedings. Secondly, the Interested Party contends, in the alternative, that the costs awards were an entirely reasonable exercise of the District Judge's discretion, having regard to the circumstances of the trial and the manner in which it was conducted by the claimants and their legal advisers.
14. The claimants disagree. They contend that either route may be used, and that the facts and matters relied on by the District Judge are clearly identifiable and do not require any further exposition.
Discussion
15. The claimants had a right of appeal against conviction and sentence to the Crown Court. However, no right of appeal to the Crown Court exists in respect of a costs order.
16. The claimants had a right, pursuant to section 111 of the Magistrates' Courts Act 1980, to apply to the District Judge within 21 days of his decision to state a case for the opinion of the High Court on a question of law or jurisdiction. Although a factual decision ordinarily does not give rise to an appeal by way of case stated, it has long been held that it may do so if the finding of fact is alleged to be such that no reasonable Bench or District Judge could properly have reached the factual conclusion on the evidence: see Bracegirdle v Oxley [1947] KB 349 and Braintree District Council v Thompson [2005] EWCA Civ 178.
17. The claimants also had a right, pursuant to section 31 of the Senior Courts Act 1981, to apply to...
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