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England and Wales High Court (Administrative Court) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> London Borough of Hackney, R (on the application of) v Rottenberg [2007] EWHC 166 (Admin) (24 January 2007)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/166.html
Cite as: [2007] EWHC 166 (Admin)

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Neutral Citation Number: [2007] EWHC 166 (Admin)
CO/9518/2006

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2
24 January 2007

B e f o r e :

LORD JUSTICE SCOTT BAKER
MR JUSTICE DAVID CLARKE

____________________

THE QUEEN ON THE APPLICATION OF LONDON BOROUGH OF HACKNEY (CLAIMANT)
-v-
MOSHE ROTTENBERG (DEFENDANT)

____________________

Computer-Aided Transcript of the Stenograph Notes of
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Tel No: 020 7404 1400 Fax No: 020 7831 8838
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____________________

MR S BUTLER (instructed by LB Hackney, Legal Services) appeared on behalf of the CLAIMANT
MS S KNIGHTS (instructed by Bindman and Partners) appeared on behalf of the DEFENDANT

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. MR JUSTICE DAVID CLARKE: This is an appeal by case stated by the London Borough of Hackney against the decision of the Crown Court at Southwark to allow an appeal against conviction for six offences of breach of an enforcement notice, which had been served on the respondent by the London Borough of Hackney, pursuant to section 80 of the Environmental Protection Act 1990.
  2. Each of the six informations charged the respondent that without reasonable excuse he failed to comply with the abatement notice which had been served on him on 14 October 2004, and which required him "to immediately cease shouting, chanting and jumping on internal floors to the property so as not to cause a nuisance to the occupiers of neighbouring properties".
  3. Of these six offences, the respondent had been convicted by District Judge Read, sitting at the Thames Magistrates' Court on 2 March 2006. The respondent appealed to the Crown Court, which heard the appeal by way of re-hearing before HHJ Wadsworth QC and two justices. The court allowed the appeal, and the learned judge delivered a brief judgment of which we have a transcript.
  4. The proceedings stemmed from the Environmental Protection Act 1990, section 79 of which deals with statutory nuisances. By sub-section (1) it is provided:
  5. "... the following matters constitute 'statutory nuisances' for the purposes of this Part, that is to say—
    ...
    (g) noise emitted from premises so as to be prejudicial to health or a nuisance."

    And then the section sets out with the duty of the local authority to inspect and take steps to investigate complaints.

  6. By section 80 of the Act, it is provided by sub-section (1):
  7. "Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice ('an abatement notice') imposing all or any of the following requirements—
    (a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence;
    (b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes... "
  8. By sub-section (3) a right of appeal to the Magistrates' Court is conferred, and by (4):
  9. "If a person on whom an abatement notice is served, without reasonable excuse, contravenes or fails to comply with any requirement or prohibition imposed by the notice, he shall be guilty of an offence."

    The six informations in this case alleged offences contrary to that sub-section.

  10. The facts found by the Crown Court I take from the case stated. At paragraph 4, the case stated reads as follows:
  11. "We found the following facts:
    a. The Respondent is and was at all material times an Orthodox Rabbi who occupied one half of a semi-detached house at 122 Bethune Road, Stamford Hill, London N16 as a School and Synagogue. The other half of the building was and is occupied by a single lady ("the neighbour").
    b. On 14 October 2004, as a result of complaints from the neighbour, the Appellant served on the Respondent an abatement notice in accordance with section 80 of the Environmental Protection Act 1990 requiring the respondent to 'immediately cease shouting, chanting and jumping on internal floors to the property so as not to cause a nuisance to occupiers of neighbouring properties'."

    I interpose to say that, from c to h, under the rubric "we found the following facts" the case sets out a summary of the evidence of the Environmental Health and Pollution Control Officers, who gave evidence to the court. I read on:

    "Mr Hawes, an Environmental Health Officer, visited the neighbour's premises on 3 December 2004 at 16.30 hours. He could hear chanting. The level of noise was clearly audible within the sitting room. At 16.55 hours the noise increased further with loud shouting, raised voices, thumping on the neighbouring floor and clapping. Mr Hawes was of the opinion that the noise was clearly audible and amounted to a statutory nuisance."

    I interpose there to say that, by findings of fact made later within paragraph 4, this is one of four occasions on which an ordinary Sabbath evening service was taking place at or shortly after sundown with a congregation of some 10 to 12 people. Reading on:

    "d. On 2 June 2005 at 8.35 hours [that is in the morning] Mr Hawes attended again at the neighbour's premises and heard chanting and raised voices in the sitting room. The chanting continued intermittently, interfering with the ability to have a conversation. The chanting and raised voices were at a significant level and stopped at 9.30."

    I interpose to say that, by a later finding at letter l, the court found that this was during morning school and was the only occasion of the six on which the complaint was of noises from school activities as opposed to Synagogue noise.

    "e. Mr Richard Ian McConnell, a Principal Pollution Control Officer, visited the premises on 25 April 2005 at 11.25 hours. Upon entering the neighbour's premises he could hear singing and chanting coming through the wall of the sitting room. Mr McConnell's opinion was that the noise amounted to a statutory nuisance."

    Pausing there, that occasion was on the second day of Passover, and on that particular Sabbath a service took place in the morning, as well as the normal Friday evening service.

    "f. Mr Lauezzari, a Principal Pollution Control Officer, attended at the neighbour's premises on 27 May 2005 at 21.18 hours. He heard low level chanting and voices. After approximately fifteen minutes the level of chanting and voices increased significantly and in his opinion amounted to a statutory nuisance."

    That again was a Sabbath Friday evening service.

    "g. Mr Hards visited the premises on 3 June 2005 at 21.45 hours. He heard chanting, tapping on the floor and other noise emanating from the respondent's premises. The voices ranged from loud to very loud and was created by adult men and children and finished at approximately 22.40 hours. In his opinion there was a statutory nuisance."

    That again, I interpose, was an ordinary Sabbath service.

    "h. Mr Paul Murphy, a Pollution Control Officer, visited the premises on 29 September 2005, and at 19.27 hours he heard chanting in the neighbour's sitting room so as to amount in his opinion to a statutory nuisance."

    As to that occasion, the case stated records at m:

    "The happening which caused noise on 29 September 2005 ... was the celebration of the Induction of the Scroll, a special and rare event in the Jewish faith at which there was an outdoor and noisy procession to the Synagogue controlled by police, and involving some 600 people. This was followed by a service attended by some 40 to 50 people within the building."

    I interpose at that point to say that it appears from a reading of the evidence of that Pollution Control Officer and from what we are told by counsel today that Mr Murphy had been unaware of the event taking place on that occasion, and remained unaware until after his visit that it was such a special occasion -- indeed one much less frequent even than an annual occasion and one for which special police arrangements had been made. It seems a surprising state of affairs that that was an event of which the local authority had not been notified.

  12. I read on the remainder of paragraph 4 of the case stated:
  13. "i. The Respondent's residence houses a school of between 13 and 20 pupils, all boys aged between 13 and 14 years. School begins at 0645 in the winter and 0715 in the summer and ends at 1930 with quiet prayer. On Friday nights there is a service at the premises lasting about 75 minutes with a typical congregation of 10 to 12 people, occasionally rising to no more than 15."

    And the next paragraphs are those relating to the six individual occasions to which I have already referred.

  14. The case stated goes on in this way:
  15. "5. The contentions of each party were set out in skeleton arguments put before the court and we were referred to the authorities therein set out.
    6. In oral submissions the appellant contended that the evidence of its witnesses was expert evidence as to the amount of noise and that the court had no valid reason not to accept such evidence.
    7. The Respondent submitted that the evidence did not establish nuisance in either private or public law and that the noise was not excessive, particularly in a busy and mixed suburban area. The Respondent also played in aid Article 9 of the [European Convention on Human Rights] submitting that a finding of statutory nuisance would be a disproportionate interference with the Respondent's freedom of religion.
    8. For the reasons set out in the judgment of the court, we were not satisfied so as to be sure that the noise at the Respondent's premises on any of the relevant dates was sufficiently great to constitute a statutory nuisance and incur criminal liability. If we were wrong about that, we were also satisfied that Article 9 of the ECHR was not a bar to these criminal proceedings.
    9. The questions for the opinion of the High Court are:
    a. Were we entitled on the facts as found to reject the opinion of the environmental health officers called on behalf of the appellant that the noise which they heard constituted a statutory nuisance?
    b. If we were in error in respect of the question above, were we right in rejecting the Respondent's contention in relation to Article 9?"
  16. From this it is apparent that no technical evidence in the form of noise readings or decibel levels was presented. No such evidence is required as a matter of law, and indeed there is no prescribed standard of what is and is not a permissible level of noise from neighbouring property, affecting the occupier of domestic premises. Thus the decision whether the noise constitutes a nuisance is a subjective decision.
  17. When considering whether noise amounts to a nuisance, it is necessary to have regard to a number of factors, which include the nature and context of the neighbourhood; the competing and conflicting interests of adjoining owners and occupants and other people affected; and the fact of any activities in the premises, and whether those are activities permitted by planning permission and the like.
  18. The essential case for the local authority, both before the Crown Court and before this court, is that their local authority environmental control and pollution officers are professional, experienced and independent people, that they had heard the noise themselves on the occasions of their visits, and that the court should -- indeed must -- accept their evidence or give sufficient reasons, greater than those given by the judge, for rejecting it. The court is not entitled to substitute its view of the nature and extent of the noise for that of the Council's officers.
  19. The way the Crown Court dealt with that core submission can be found in the judgment of Judge Wadsworth, where he said this:
  20. "The next thing which we have to consider is whether there was, in fact, on the evidence put before us, a nuisance by noise of such a nature as would warrant the application of the criminal law in relation to it. This has been called, although the phrase does not appear in the statute, a statutory nuisance."

    I pause there to say that that term does appear in section 79, but there is no definition of it, and within the sub-section (g), the term is "a nuisance". No question of noise being prejudicial to health arises in the present case.

  21. The judge went on:
  22. "Two of the incidents relied upon were outside the normal practice of the synagogue. One of them, on 3 December 2004, appears to have been noise from the school. That stands on its own, separate from any other complaint, and we are of the view that a single and short time when school children nearby make enough noise to irritate a neighbour is not something that would trigger criminal liability under the Environmental Protection Act. We therefore dismiss that summons and allow the appeal in respect of it.
    The other special occasion was very different. It was 29 September 2005, when the new scroll arrived, a matter of great religious significance which is accompanied, as the appellant readily accepts, by a great deal of noise with amplified music from a lorry on the street, a procession guided by the police, and a welcome within the synagogue, which we have little doubt is a fairly noisy, but fairly short, welcome. Again, for similar reasons, we are of the view that this was a one-off matter which is not properly one which triggers the sanctions of the Environmental Protection Act.
    The other four occasions have to be looked at rather differently. In respect of those, they all arise in the practice of the regular offices of the synagogue, and in respect of each of those we have evidence from experienced council officers that there was noise which they described in various ways. Without applying any individual description to any individual matter because they all come very much into the same area, we were told that the noise was intrusive, that it was sufficiently loud to cause the need to raise voices in conversation across the living room of the next door house, and that it was necessary to raise the volume of the radio, or the like, in order to enjoy it. Added to that, and this was a matter of dispute between the parties, it was said that there was also, at times, quite apart from what was called chanting and sometimes wailing, hammering on the floor and vibration though the floorboards.
    We were told by the witness Mr Hawes that the assessment of such a noise as a statutory nuisance, which was the phrase that I think all the respondent witnesses used, was a professional and subjective test. Looking at those words we asked ourselves whether an officer in the service of the local authority, in environmental protection, is in any better position than any other member of the public to reach a view as to whether the interference with enjoyment of the property is so large as to be a nuisance. We have some doubt as to whether that is professional approach in the sense of being a matter of expertise. It is most certainly subjective and it is one to which we the court must apply our own subjective judgment as to the nature and amount of noise. We also remind ourselves that it is incumbent as judges of fact in this case to approach the evidence, whether it be expert evidence or not, critically. We are not bound by the opinion of a witness, even if he is an expert. The issue is for us to decide. See R v Stockwell [1993] 97 Cr App R 260.
    We have given that evidence very careful consideration and we have reached the view, in respect of all of those four summonses, that while the noise clearly was enough to penetrate the walls and while we accept, contrary to the evidence of the appellant, that there was, from time to time, sufficient banging on the floor, in some form, to cause the noise to travel through the floor joists of the semi-detached house, we are not satisfied, so that we can be sure to a criminal standard, that the noise intrusion that was there was sufficient to cause a nuisance rather than an irritation. Upon that ground of fact we reject the prosecution's case on the our four summonses and allow those appeals."
  23. Before us, counsel, Mr Butler, manfully seeks to overturn that decision of the Crown Court and seeks to develop his argument in a number of ways. At paragraph 26 of the skeleton argument, and he supplements this orally, he submits that these environmental officers were expert, and although employed by the local authority, they brought an independent judgment based upon their knowledge of the locality, as well as their experience, to bear on the issue whether or not this was a statutory nuisance. Mr Butler summarised his submission on this at paragraph 27 of his skeleton in this way:
  24. "In short, although the Court is the final arbiter, it must first assess the credibility of the witnesses of fact prior to making a decision as to the weight that should be attached to such witness evidence. At no point should the Court be required to step into the shoes of the witnesses (especially professional and expert witnesses such as the environmental officers) to superimpose the Court's own subjective judgment of matters of fact to which the court has no experience, other than through hearing evidence from witnesses."
  25. Orally before us, Mr Butler has gone further to submit that there was no challenge to the assertion of the officers that this did amount to a statutory nuisance. He submits that the case was fought solely on the issue of reasonable excuse and the European Convention point, both of which were dismissed by the Crown Court so that the local authority succeeded on those grounds.
  26. We have been provided -- unusually in my experience in an appeal by case stated -- with a transcript of all the evidence heard. I have been able to see a transcript of the evidence, and in particular the cross-examination of the environmental officers. Taking the cross-examination as a whole, although it was not put in terms, "I put it to you", or words along the lines of "I put it to you that your judgment is wrong, that this was a statutory nuisance", it is clear to me that the cross-examination did challenge those assertions. The judgment of those officers was challenged by reference, for example, to their lack of knowledge of what did take place in the adjoining premises, of the nature of those premises and the use made of them, the permitted use made of them, all of which are factors in forming the judgment whether or not the noise constituted nuisance.
  27. Counsel has relied upon the decision of this court in Westminster City Council v McDonald 28 October 2002; [2003] EWHC 2698 [Admin], in which the court overruled a decision of a district judge that there was no case to answer for breach of an abatement notice, where the respondent habitually played loud music in Leicester Square. The issue of whether there is a case to answer is, in my judgment, a different question from the question before us, and the facts of that case were altogether different facts. There was a prima facie case there, as the court in that case held. There was a prima facie case here in the light of the evidence of the witnesses. As was common ground, no submission of no case to answer in the present case was made or could properly have been made. But the fact remains that the court had to exercise its judgment at the conclusion of the hearing on the totality of the evidence.
  28. I would hold that the conclusion arrived at by the Crown Court was one which they were fully entitled to reach. An appeal before the Crown Court is an appeal by re-hearing. The witnesses are called afresh. The court is required to make its own finding of fact and law, uninfluenced by the conclusions of the court below.
  29. Just as in the Crown Court, where it is well-established by Stockwell and other cases that a jury is not obliged to accept the evidence of any particular witness, including that of an expert witness, even if unchallenged by other experts; so also are a judge and justices sitting on appeal from a Magistrates' Court. Whether the noise on these occasions was a nuisance so as to constitute a breach of the abatement order was a matter of fact for them to be decided on the evidence. In my view, the fact that a subjective judgment is involved, as Mr Butler has been at pains to submit, is not an argument which assists his cause. The subjective judgment in the end is that of the court. If the standard were an objective one, to be measured by some yardstick such as the level of decibels of noise at particular times of day, the case might have been very different. But such a regime of objective measures would have to take into account so many different factors as to be quite unworkable, and there is no such objective standard prescribed by Parliament.
  30. The submissions of Mr Butler, manfully pursued before us, the tide being strongly against him, did not persuade me that the court went wrong in this case in the sense that it was not entitled to reach the conclusion which it did. That is the hurdle which the local authority needs to surmount to succeed in this court. It was for the court, not the witnesses, however expert, independent or impartial they may have been, to decide on the whole of the evidence whether the offences were made out.
  31. It is to be noticed that the offence of breach of an abatement order is committed when a nuisance is created "without reasonable excuse". The Crown Court did not decide the appeal on this ground. Having found that the incidents complained of did not amount to a nuisance, it did not need to form a conclusion. It seems to me that the issue of reasonable excuse in this particular case is closely related to the question whether the noise was a nuisance at all, and furthermore to the wider question relating to human rights and Article 9 of the Convention.
  32. If my Lord agrees with my conclusion on the first point, it is not necessary for us to decide the second point as a discrete issue; the matters are closely inter-related. I would hold that the fact that the noise is created in the course of religious worship, in premises registered and with planning permission for that use, would inevitably be a relevant consideration, both in considering whether noise constitutes a nuisance and whether there is reasonable excuse for it. But, for myself, I would share the Crown Court's provisional view that, if the service is conducted in such a way that the court, exercising its own judgment, finds that a statutory nuisance exists, then the fact that the nuisance was created in such circumstances would be unlikely to amount to a defence of reasonable excuse, nor would a prosecution be disproportionate.
  33. I would, however, dismiss the appeal on the first ground. Turning to the question raised in the case stated: were the court entitled to reject the opinion of the environmental health officers? I would answer, yes.
  34. LORD JUSTICE SCOTT BAKER: I agree. It is regrettable that a great deal of money has been spent by the London Borough of Hackney in obtaining transcripts of the evidence that are quite unnecessary for the resolution of this appeal by way of case stated.
  35. The short point is that what amounts to a nuisance for the purposes of the Environmental Protection Act 1990 is no different from what amounts to a nuisance at common law. Whether the threshold was crossed in this case so as to amount to an offence under the statute was a matter for the court, not the environmental health officers, however great their experience might be. The judge and the justices considered the whole of the evidence and concluded it was not proved that the threshold had been crossed. In my view, they were entitled to come to that conclusion.
  36. In R v Stockwell [1993] 97 Cr App R 60, this court made clear that a court is not bound to accept uncritically the evidence given by a witness, even an expert. The fact that the environmental health officers called by the Council thought there was nuisance noise in this case was not determinative of the issue.
  37. I too would answer the first question posed in the affirmative.
  38. MS KNIGHTS: My Lord, I would ask for our costs in this case.
  39. LORD JUSTICE SCOTT BAKER: Mr Butler, have you seen the statement of costs?
  40. MR BUTLER: No.
  41. LORD JUSTICE SCOTT BAKER: Why has that not been provided to the other side?
  42. MS KNIGHTS: It was provided to Hackney yesterday, I am told.
  43. MR BUTLER: Would you mind if I --
  44. LORD JUSTICE SCOTT BAKER: Perhaps you could have a look at it now. You have not got another copy, have you, because my Lord Has not received one.
  45. MS KNIGHTS: Yes, my Lord.
  46. LORD JUSTICE SCOTT BAKER: There are two points really. The first is: do you object in principle to an order for costs being made against your clients?
  47. MR BUTLER: As a losing party, no.
  48. LORD JUSTICE SCOTT BAKER: Secondly, what do you say about the quantum?
  49. MR BUTLER: Well, my Lord, it is too high. In relation to this case, my learned friend, Miss Knights, has presented the case, she has drafted the skeleton argument, she has prepared for it. For the solicitor also to claim a fee for doing so, eight hours' work --
  50. LORD JUSTICE SCOTT BAKER: Did your side produce a statement of costs at all? We have not seen one.
  51. MR BUTLER: I have not seen one.
  52. MS KNIGHTS: We have got one here. I can hand that up.
  53. MR BUTLER: I have never seen that before.
  54. LORD JUSTICE SCOTT BAKER: Yours comes to £4,778.75. There does not seem to be any costs of the transcript put in there.
  55. MR BUTLER: No. In relation to this transcript, that was also requested by the respondents -- parts of the transcript. It is not that we wanted all of the transcripts.
  56. LORD JUSTICE SCOTT BAKER: I am not very impressed by that argument. You asked for the transcript and were then going to produce it, but only part of it. What the other side says is: well, if you are going to have any transcript, we want the lot, including ours.
  57. MR BUTLER: Yes, they wanted their part of the evidence.
  58. LORD JUSTICE SCOTT BAKER: That is not unreasonable. But the problem is that the transcript was not required in the first place.
  59. MR BUTLER: No, but only if it is necessary to deal with the question --
  60. LORD JUSTICE SCOTT BAKER: But anyway that may not arise because it is your side that got it and you are not asking for the costs anyway.
  61. MR BUTLER: No. But in relation to the appellant in this case, we have had to prepare the bundles. We have undertaken the running work in this case, and bearing in mind the costs we have incurred in doing that -- a case of this nature, for example, if one looks at attendance on others, four hours on counsel, and counsel was involved in the court below and she knew what she had to do, and eight hours on documents. My Lord, I would also submit that there was no need for the solicitor to attend this hearing, where he also charged travel, wait, discussion and hearing, three hours.
  62. LORD JUSTICE SCOTT BAKER: We are invited, I take it, to make a summary assessment by both sides, are we?
  63. MR BUTLER: I would be inviting your Lordship to do so.
  64. MS KNIGHTS: Yes, we are happy with that.
  65. MR BUTLER: I am not going to question my learned friend's brief fee because I have no doubt she has undertaken a great deal of work.
  66. LORD JUSTICE SCOTT BAKER: Just going through it then, what do we say should be taken out? Let us go through it figure by figure. £520 --
  67. MR BUTLER: I would accept the solicitor would have to undertake some conduct on this case, so I do not question the rate.
  68. LORD JUSTICE SCOTT BAKER: And there is no challenge to the hourly rate, is that right?
  69. MR BUTLER: For a solicitor of Mr Ridge's call, no. It is a Divisional Court case. I do not question that.
  70. LORD JUSTICE SCOTT BAKER: So £520 is all right.
  71. MR BUTLER: Yes.
  72. LORD JUSTICE SCOTT BAKER: £1,040?
  73. MR BUTLER: I question fours hours spent between counsel and the court on this matter when counsel was instructed in the court below, and it only sent letters to this court.
  74. LORD JUSTICE SCOTT BAKER: Yes. What do you say it should be?
  75. MR BUTLER: My Lord, I would allow one hour.
  76. LORD JUSTICE SCOTT BAKER: So a quarter of that. What is a quarter of £1,040 -- £260.
  77. MR BUTLER: Charging £260 an hour would suggest a fee of £260 for the solicitor.
  78. LORD JUSTICE SCOTT BAKER: Yes.
  79. MR BUTLER: In relation to the documents, as I have indicated, to consider the case stated, skeleton, transcripts and the bundles, that was a matter for counsel, not the solicitor, so I would not permit any costs for the solicitor in this case. He was not presenting it.
  80. LORD JUSTICE SCOTT BAKER: Right.
  81. MR BUTLER: In relation to attendance at court, in a case of this nature, which is a legal argument, my Lord, it was not necessary for the solicitor to be in attendance for this hearing. Counsel has been instructed and therefore I do not question counsel's fee --
  82. LORD JUSTICE SCOTT BAKER: So we say travel, waiting and hearing is gone, is that right?
  83. MR BUTLER: My Lord, I would be submitting so, yes, and counsel's brief fee, I do not question.
  84. LORD JUSTICE SCOTT BAKER: Yes. Now, VAT is recoverable, is it?
  85. MR BUTLER: It would be, yes.
  86. LORD JUSTICE SCOTT BAKER: Mr Rottenberg would have to pay that and there is no VAT exemption on your side.
  87. MR BUTLER: No.
  88. LORD JUSTICE SCOTT BAKER: So the VAT would be reduced by whatever the relevant figure was. Shall we hear what Ms Knights has to say about this.
  89. MS KNIGHTS: We have been put to considerable expense in dealing with what we say is a short point, but required an enormous amount of preparation. The case stated was on the application of the appellant in this case. As regards the individual amounts -- the attendance on others -- it has plainly been necessary to discuss the matter with counsel. There has been various toing and froing between my solicitors and the court on this. We have had to deal with the application to state a case. It was quite right for us to make representations on that. We had to consider that, and of course that was not just in relation to the narrow point on which your Lordships decided the case today, but also in relation to proportionality and Article 9. So in my submission four hours is perfectly reasonable. As is the eight hours on documents. There was considerable confusion caused by Hackney in this case in relation to the obtaining of transcripts. As regards the attendance of the hearing, my learned friend's solicitor is not here because she is unwell, otherwise she would have been here. In my submission, it is perfectly proper for a solicitor to attend in this sort of matter. It is was an important case and there was no reason for him not to be here. So my submission would be that the entirety of the costs schedule is entirely reasonable.
  90. LORD JUSTICE SCOTT BAKER: Yes. Thank you. We will retire.
  91. (Short adjournment)

  92. We think the costs are somewhat too high. What we allow is as follows: the first figure of £520 is allowed. Attendance on others, we think two hours would be appropriate rather than four, and so we are saying £520, rather than £1,040. We think four hours would be appropriate for documents rather than eight. So we say £1,040 rather than £2,080. Then over the page, we allow the travel of one hour at £260. We allow the waiting and discussion of 30 minutes at £130, but we reduce the three hours to two hours for the hearing -- that is £560 rather than £780. There is no challenge to the £3,500 brief fee, which we allow. We have not added up the total, but no doubt counsel can do that and multiply it by 17.5 per cent and give us the VAT and therefore a total figure.
  93. MS KNIGHTS: My Lord, we are just searching to see if we can find a calculator.
  94. MR BUTLER: Would you mind if we agreed that total --
  95. LORD JUSTICE SCOTT BAKER: I think you should be capable of agreeing that.
  96. MR BUTLER: May I ask for 28 days? I know the normal rule is 14, but would you mind if I ask for 28 days because it is a local authority and that is (inaudible).
  97. LORD JUSTICE SCOTT BAKER: That is reasonable, is it?
  98. MS KNIGHTS: We do not have any problem with 28 days.
  99. MR BUTLER: I am most grateful.
  100. LORD JUSTICE SCOTT BAKER: Thank you both very much.


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