Secretary of State for the Home Department v BM
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LLOYD JONES |
| Judgment Date | 15 January 2009 |
| Neutral Citation | [2009] EWHC 264 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6347/2007 |
| Date | 15 January 2009 |
[2009] EWHC 264 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Lloyd Jones
CO/6347/2007
Martin Westgate (instructed by Hartnells) appeared on behalf of the Claimant
Matthew Holdcroft (instructed by Department of Legal Services, Metropolitan Police) appeared on behalf of the Defendant
(Approved by the court)
: This is an appeal by way of case stated by Mr Jeffrey Taylor against the decision of Deputy District Judge Newton, sitting at Camberwell Green Magistrates' Court on 2nd May 2007, declining to make an order for costs in his favour following the dismissal of an application by the respondent, the Metropolitan Police Commissioner, for a closure order under section 2 of the Anti-social Behaviour Act 2003 (“the 2003 Act”).
On 13th April 2007 an application was made by the Metropolitan Police Commissioner for a closure order in respect of 28-34 St Agnes Place, London SE11. The full application was heard by Deputy District Judge Newton on 27th April 2007, when, having heard the evidence, the closure order was refused.
The Deputy District Judge gave reasons for her decision on 2nd May 2007. On that occasion the appellant applied for an order for costs against the respondent, relying on section 64 of the Magistrates' Courts Act 1980. The Deputy District Judge ruled that while proceedings under section 2 of the 2003 Act are civil in nature, the Magistrates' Courts' jurisdiction to award costs under section 64 of the 1980 Act was dependent upon the proceedings in question being commenced by way of complaint. She considered that an application for a closure order, as prescribed by Part I of the 2003 Act, involves the initial issue and fixture to the relevant premises of a closure notice bringing to the attention of interested parties the time, date and place of hearing of the closure order application. She considered that as there is no provision for the laying of a complaint, or the subsequent issue of a summons, the court was not concerned with a complaint. Therefore, the court had no jurisdiction to make a costs order under section 64 of the Magistrates' Courts Act 1980.
The question which has been stated for the opinion of the High Court is as follows:
“Whether a Magistrates' Court on hearing an application for a closure order under section 2 of the Anti Social Behaviour Act 2003 has jurisdiction to award costs under section 64 of the Magistrates' Courts Act 1980.”
The relevant facts are set out in the case stated:
“1. On the 13 th April 2007 application was made by the Metropolitan Police Commissioner for an order under section 2 Anti-Social Behaviour Act 2003 in respect of premises at 28-34 St Agnes Place SE 11. Proceedings were adjourned to enable evidence to be served on the respondents to 20 th April and adjourned again to 27 th April for a full hearing. On that occasion the evidence was heard and I refused the police application. I do not propose to set out the facts which I found on hearing the application since these are not challenged.
2. The court re-constituted on 2 nd May when I explained the reasons for my judgment. There were applications on behalf of both the respondents, the Ethiopian World Federation and Mr Taylor, for awards of inter partes costs against the police citing the provisions of section 64 of the Magistrates' Courts Act 1980. Counsel for the Ethiopian World Federation cited the provision under section 10 of the Anti Social Behaviour Act 2003 for payment of compensation from central funds as an alternative to an inter partes award. After listening to arguments from both parties I made an order under section 10 for the payment of compensation to the Ethiopian World Federation representing their legal expenses but made no order under either section in favour of Mr Taylor who was the subject of a legal representation order.”
The reasoning by which the Deputy District Judge concluded that she had no power to award costs against the Commissioner is set out in the case stated:
“4. Firstly it falls to be determined whether the application comprises civil or criminal proceedings since upon this question depends the appropriate statutory authority to award costs. I find that the question is answered conclusively by the case of Metropolitan Police Commissioner v Hooper (2005) EWHC 340 (Admin) (2005) 4 All E R 1095 (2005) 1 WLR 1995 (2005) 169 JP 409. The judgment in this case clearly states that an application for a closure order should be classified as civil proceedings since there is no formal accusation by the respondent of a criminal offence. The court goes on to state that whether criminal or civil these proceedings nevertheless attract the protection of articles 1 of the First Protocol and articles 6 and 8 of the European Convention on Human Rights.
5. It would appear to be well established that the court has no power to make a costs order other than under any provision found in statute. 'The Justices have no power to award costs in any proceedings before them either judicial or administrative. The jurisdiction if it exists must be found in a statute' per Denning LJ in Regina v Uxbridge Justices ex parte Commissioner of Police for the Metropolis.
6. Part I (Sections 1-11) of the Anti-Social Behaviour Act 2003 contains no express power to award inter partes costs. I therefore have to refer to Part II of the Magistrates' Courts Act 1980 (expressly headed 'Civil Jurisdiction and Procedure') and to examine the provisions of section 64. This section provides that:
(1) On the hearing of any complaint a magistrates' court shall have power in its discretion to make such an order as to costs:-
(a) on making the order for which the complaint is made to be paid by the defendant to the complainant
(b) on dismissing the complaint to be paid by the complainant to the defendant,
as it thinks just and reasonable.
7. The application procedure for a closure order prescribed under Part I of the Anti-Social Behaviour Act involves the initial issue and fixture on the premises concerned of a closure notice which is required to be brought to the attention of interested parties and notifies those persons of the time, date and place of hearing of the application to the Magistrates' Court. There is no provision for the laying of a complaint or the subsequent issue of a summons. Instead the Act sets out a specific procedure to bring proceedings without reference to the standard civil method for the issue of a summons on complaint.
8. Since the legislation is recent and there is no direct authority on the point in question I am referred to analogous statutory provisions under the Magistrates' Courts civil jurisdiction. A number of cases in the reports concern the issue of the Magistrates' power to award costs under the Police Property Act 1897 where the use of the word 'application' has led to argument concerning the correct procedure to be adopted on costs applications. There is the case cited above R v Uxbridge Justices ex parte Commissioner of Police for the Metropolis [1981] Q.B. 829 where the Court of Appeal made a number of interesting observations as to the proper procedure to adopt under the relevant legislation. Unlike the present case the 1897 Act prescribes no procedure for making an application to the court. Sir George Baker held that the complaint method was a 'proper procedure' while Sir Stanley Rees maintained that it was a necessary procedure in the circumstances. In a dissenting judgment Lord Denning held that although the application was made on a complaint form it was an application simpliciter and did not give the justices power to award costs. On a pragmatic note he urged Magistrates' Courts to adopt an application form specifically marked as such thus relieving the court from considering any question of inter partes costs on final determination. I believe the law in relation to the Police Property Act where an application has been brought by way of complaint to be firmly settled by Mercer v Oldham (1984) Crm LR 232 which clearly confirms that the court does have the power to award costs in these circumstances. However the circumstances of applications under the Police Property Act are to be distinguished from those pertaining in the present case since the procedure is essentially different.
9. I have been made aware of recent authority concerning the character of the proceedings brought under Part I of the Anti-Social Behaviour Act 2003 namely the observations of Poole J in R (Turner) v Highbury Corner Magistrates' Court [2006] 1 WLR 220 where he held that 'in so far as there is no specific mention of complaint in section 2 of the Anti-Social Behaviour Act 2003 I am satisfied that by reason of their nature such applications as those we are considering here have all the necessary characteristics of complaint and are covered by section 54 of that Act' Poole J was referring here to the provision which enables the court to adjourn a summons laid on complaint and its applicability to section 2(6) of the 2003 Act which appears to restrict the power of the court to adjourn the application to no more than fourteen days. This aspect of the legislation was examined by the Administrative Court in Metropolitan Police Commissioner v Hooper referred to above. In that case the court found that section 2 provides a self-contained statutory code for the hearing and determination of these applications and that the power to adjourn under section 54...
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