The Queen (on the application of Andrew Parker) v The Magistrates Court at Teesside
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 18 February 2022 |
| Neutral Citation | [2022] EWHC 358 (Admin) |
| Docket Number | Case No: CO/783/2021 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 358 (Admin)
Mr Justice Fordham
Case No: CO/783/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN LEEDS
1 Oxford Row, Leeds LS1 3BG
David Graham (instructed by Watson Woodhouse) for the Claimant
Ryan Kohli (instructed by Government Legal Department) for the Defendant
The First Interested Party appeared in person
The Second Interested Party did not appear and was not represented
Hearing date: 27.1.22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This is a case arising out of what happened with a garden wall in the Victorian terrace of Peaton Street, North Ormesby. It has become a case about the magistrates' statutory function of awarding costs (“expenses”) where there has been a successful private prosecution in respect of statutory nuisance. It is a case which comes before this Court as a claim for judicial review, commenced on 3 March 2021, for which permission was granted by HHJ Davies-White QC sitting as a Judge of the High Court (“the Permission Judge”) on 26 July 2021.
The mode of hearing was a remote hearing by Microsoft Teams. The question of the mode of hearing was raised by the Permission Judge in his Order. In the event, the Claimant and Defendant actively requested a remote hearing; and the Interested Parties did not oppose one. I was satisfied that a remote half-day hearing involved no prejudice to any party, and was appropriate in the context of the pandemic. The open justice principle was secured, by publication from the previous afternoon onwards in the online RCJ Cause list (which contains all regional Administrative Court hearings) of this information: the case-name and reference, its start time, the remote mode of hearing, and an email address usable by any member of the press or public who wished to observe the hearing (as several people did).
The Defendant, throughout the judicial review proceedings, took a “neutral” position, instructing Counsel (Mr Kohli) to attend the substantive hearing to assist the Court on any questions of law. The Interested Parties were served with the relevant papers throughout the proceedings. This included: (i) service on them by the Claimant with the claim papers (8.3.21) and with the skeleton argument and hearing bundle (11.1.22); (ii) service on them by the Court with the Permission Judge's reasoned order (28.7.21); and (iii) service on them by the Defendant with its Acknowledgment of Service (9.3.21) and post-permission letter (9.8.21). The First Interested Party asserted, at one point at the hearing, that it had not been made clear to them that: (a) the Interested Parties had the right to participate and resist these judicial review proceedings if they wished; and (b) the Defendant was not resisting judicial review but was adopting a “neutral” position. That assertion was refuted by the clear contents of the served documents themselves, as the First Interested Party on reflection accepted when this was put to him. These two things had also been reiterated to him in a phone conversation (19.1.22) with the Defendant's solicitors. The Interested Parties took no step to participate in the proceedings until the First Interested Party contacted the Court on the morning of the substantive hearing asking for the link. He was duly sent it, and the authorities were emailed to him, to ensure that he had everything. He was present at the hearing. Steps were taken to ensure that he could find and follow the bundle references. He made submissions to the Court.
Statutory nuisance and s.82(12)
There is a statutory nuisance where “premises” are in “such a state as to be prejudicial to health or a nuisance”: see Environmental Protection Act 1990 (the “1990 Act”) s.79(1)(a). Following the issuing of a written notice (1990 Act s.82(6)), a person aggrieved by the existence of a statutory nuisance may institute proceedings by way of summary application in the magistrates' court (s.82(1)). In the case of statutory nuisance arising from a defect of a structural character, those proceedings are brought against the owner or owners of the relevant premises (s.82(4)(b)). There may be more than one person responsible for the statutory nuisance (s.82(5)). It was not in dispute in the present case that, in the context of a party wall (see the Party Wall Act 1996), the owners of the premises sharing that party wall have joint responsibility for it. If satisfied that the statutory nuisance exists, the magistrates' court is obliged to make an order requiring its abatement within a specified time, with the execution of necessary works (1990 Act s.82(2)(a)). In relation to costs (expenses) incurred in the proceedings, Parliament has provided as follows (s.82(12), emphasis added):
Where on the hearing of proceedings for an order under subsection (2) above it is proved that the alleged nuisance existed at the date of the making of the complaint or summary application, then, whether or not at the date of the hearing it still exists or is likely to recur, the court … shall order the defendant… (or defendants … in such proportions as appears fair and reasonable) to pay to the person bringing the proceedings such amount as the court … considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings .
This statutory language is at the heart of this case.
Section 82(12) has been considered in a number of cases, of which the following were cited to me:
i) Davenport v Walsall MBC [1997] Env LR 24 (Pill LJ & Keene J 17.3.95) was a successful appeal by case stated by a private prosecutor (Mrs Davenport), overturning the Walsall magistrates' decision not to award her costs of a successful statutory nuisance proceedings against their local authority landlord, where the magistrates' unreasoned decision that costs were not “properly incurred” was an unreasonable one.
ii) R v Dudley Magistrates' Court, ex p Hollis [1999] 1 WLR 642 (Schiemann LJ & Moses J 25.11.97) was a successful appeal by case stated by private prosecutors (Mrs Hollis and Mr Probert), overturning the Dudley magistrates' decisions not to award their costs of successful statutory nuisance proceedings against their local authority landlord, where the magistrates had erred in law, having no power to refuse costs on the basis that commencing proceedings had been unnecessary.
iii) Taylor v Walsall and District Property and Investment Co Ltd [1998] Env LR 600 (Simon Brown LJ & Mance J 13.1.98) was a successful appeal by case stated by a private prosecutor (Mr Taylor), overturning the Walsall magistrates' decision to award him £3,000 out of £4,950 costs of successful statutory nuisance proceedings against his private landlord, where the magistrates' unreasoned decision involved no specific findings as to the objections to costs which had been raised and the hearing had not allowed Mr Taylor's counsel to reply.
iv) R (Notting Hill Genesis) v Camberwell Green Magistrates' Court [2019] EWHC 1423 (Admin) (Supperstone J 9.5.19) was a successful judicial review challenge to a magistrates' refusal to state a case for appeal, overturning the Camberwell Green magistrates' decision to award a private prosecutor (Ms Smith) full solicitor costs of £21,052.80 against her landlord (Notting Hill Genesis), where the magistrates erred in law in not considering the individual items challenged and in not addressing a number of significant matters in their reasons.
v) Taylor v Burton [2021] EWHC 1454 (Admin) [2021] HLR 46 (Collins Rice J 28.5.21) was a successful appeal by case stated by the “landlords” (the freehold owner Mrs Taylor and her letting and managing agent Longfield Real Estate), overturning the North Staffordshire magistrates' decision to award a private prosecutor (Ms Burton, their tenant) costs of £29,079.80 (£14,539.90 against each of the landlords) reduced from a schedule of costs of £34,412.60, where the magistrates erred in their approach to the assessment of costs and as to the legal sufficiency of their reasons.
Here is what a typical mainstream textbook commentary says in discussing s.82(12). See Cross on Local Government Law at §19–80:
If it is proved that the alleged nuisance existed at the date of the making of the complaint or summary application, the defendant[s] must be ordered to reimburse, in such proportions as appears fair and reasonable, the expenses properly incurred by the person aggrieved in the proceedings .
The cases footnoted to §19–80 of Cross include Davenport, Hollis, Taylor (Walsall) and Notting Hill. In Taylor (Burton), Collins Rice J similarly encapsulated s.82(12) in this way (at §33):
The magistrates are mandated to order defendants to pay reasonably sufficient compensation for expenses properly incurred …
Background
A reliable encapsulation of the background to the present claim was set out in Mr Graham's skeleton argument, with which no other party took issue. It is from that source that the following description is derived. The Claimant rented No.7 Peaton Street. His landlord was 2020 Homes. The freeholder owners were ZCI UK Properties Ltd (“ZCI”). The Interested Parties were freeholders of the neighbouring house at No.9. A party wall formed the boundary of the back gardens of No.7 and No.9. Buddleias growing in the garden of No.9 had damaged the wall, which had not been properly maintained. That had resulted in a partial collapse, which lacerated the Claimant's hand on 14 January 2020. He required stitches, suffered infection and...
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...this regime are helpfully set out in the judgment of Fordham J in R. (on the application of Parker) v Magistrates Court at Teesside [2022] EWHC 358 (Admin) with which I respectfully agree. No purpose would be served in rehearsing these consequences in this judgment. Suffice it to say that ......