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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Wilson v Ashford Borough Council [2010] EWHC 639 (Admin) (09 March 2010) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2010/639.html Cite as: [2010] EWHC 639 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand London WC2A 2LL |
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B e f o r e :
MR JUSTICE CRANSTON
____________________
JUDITH ELIZABETH WILSON | Claimant | |
v | ||
ASHFORD BOROUGH COUNCIL | Defendant |
____________________
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Mr Hugh Flanagan (instructed by Messrs Sharpe Pritchard) appeared on behalf of the Defendant
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"(a) On 5th October, 2007 the Respondent served an abatement notice on the Appellant pursuant to Section 80 of the Environmental Protection Act 1980 in respect of an audible intruder alarm at premises at 37, Raymond Fuller Way, Kennington, Ashford, Kent of which the Appellant was the freehold owner.
(b) On 16th October, 2007 the Appellant served a notice of appeal against the abatement notice to East Kent Magistrates' Court.
(c) On 3rd March, 2008 the East Kent Magistrates' Court dismissed the Appellant's appeal and ordered the Appellant to pay the Respondent's costs.
(d) On 4th March, 2008 the appellant served notice of appeal to the Crown Court at Maidstone against the decision of the East Kent Magistrates' Court on 3rd March, 2008.
(e) By way of a notice dated 8th April, 2008 the Crown Court sent to the Appellant, the Respondent and the Clerk to the Justices of East [Kent] Magistrates' Court a notice that the appeal would be listed for hearing at the Crown Court on 9th June, 2008 with a time estimate of two days. That notice included the words 'To abandon your appeal:... Notice must be given at least three clear days (not counting Saturdays, Sundays and Bank Holidays) before the date of the hearing. If you do not or if you do not appear at the hearing you may have to pay costs'. [The notice was signed by an officer of the Crown Court]
(f) The Appellant did not receive the said notice of hearing and only learnt of the hearing date on 3rd June, 2008 when her solicitors were contacted by the Respondent.
(g) The Appellant was not available to attend the appeal hearing on 9th and 10th June, 2008 and decided to abandon her appeal, relying on the words set out in paragraph (e) above as avoiding any liability for costs since she gave her notice of abandonment more than three clears days before the appeal hearing date.
(h) On 3rd June, 2008 the Appellant served notice abandoning her appeal, within three clear days of the appeal hearing on 9th and 10th June, 2008.
(i) On 5th June, 2008 the Crown Court recorded that the appeal had been abandoned and made no order as to costs, the Respondent having made no application for costs.
(j) From 15th July, 2008 there was correspondence between the Respondent and the Appellant in which the Respondent indicated that an application be made for costs.
(k) On 21st January, 2009 the Respondent sent a schedule of costs to the solicitors acting for the Appellant in the Crown Court appeal.
(l) On 5th March, 2009 the Respondent applied for an order against the Appellant pursuant to section 109 of the Magistrates' Courts Act 1980."
"(a) Section 109 of the Magistrates' Courts Act 1980 gives the court a clear discretionary power to award costs on the abandonment of an appeal in the Crown Court.
(b) the normal rule in civil proceedings is that the unsuccessful party should pay the costs of the successful party.
(c) The notice sent by the Crown Court dated 8th April, 2008 did not expressly state that the Appellant was not at risk of an order for costs even if she served notice withdrawing her appeal more than three working days from the proposed hearing date.
(d) The Crown Court notice dated 8th April, 2008 did not give any legitimate expectation to the Appellant that she would not be liable for costs and there was no abuse of process."
The case then goes on:
"Accordingly we ordered the Appellant to pay £5,721 in costs to the respondent."
It is unclear whether that sum represented or included any costs which arose after notice of abandonment of the appeal but no appeal on quantum has been mounted and there are no facts in the case which assist on that issue.
"(a) Whether an application under Section 109 of the Magistrates' Courts Act 1980 was precluded given the wording in the notice sent by the Crown Court dated 8th April, 2008 in circumstances where an appeal in the Crown Court is abandoned at least three clear days before the appeal hearing?
(b) Whether an application under Section 109 of the Magistrates' Court Act 1980 and an award of costs under that section amounted to an abuse of process in light of the wording in the notice sent by the Crown Court dated 8th April, 2008 on the basis of the notice giving rise to a legitimate expectation on the part of the Appellant that no order for costs would be made if she abandoned her appeal more than three clear days before the date of the appeal hearing?
(c) Whether we were unreasonable in exercising our discretion to award costs in light of the wording of the notice sent by the Crown Court dated 8th April 2008 on the basis of the notice giving rise to a legitimate expectation on the part of the Appellant that no order for costs would be made if she abandoned her appeal more than three clear days before the date of the appeal hearing?
(d) Whether our decision was correct in law?"
The law
"12(1) Subject to the provisions of section 109(1) of the Magistrates' Courts Act (powers of magistrates' courts to award costs on abandonment of appeals from magistrates' courts) ..., no party shall be entitled to recover any costs of any proceedings in the Crown Court from any other party to the proceedings except under order of the Court.
(2) Subject to ... the following provisions of this Rule, the Crown Court may make such order for the costs as it thinks just.
...
(5) No order for costs shall be made on the abandonment of an appeal from a magistrates' court by giving notice under Rule 11.
..."
Thus Rule 12(5) precludes the Crown Court from awarding costs on an appeal abandoned at least three days before the hearing but it is important to underline that Rule 12(1) is specifically subject to Section 109 of the Act. That provision is in these terms:
"(1) Where notice to abandon an appeal has been duly given by the appellant-
(a) The court against whose decision the appeal was brought may issue process for enforcing that decision, subject to anything already suffered or done under it by the appellant; and
(b) The said court may, on the application of the other party to the appeal, order the appellant to pay to that party such costs as appear to the court to be just and reasonable in respect of expenses properly incurred by that party in connection with the appeal before notice of the abandonment was given to that party."
That power is, of course, discretionary.
"The power to order costs lies with the magistrates' court under the Magistrates' Courts Act 1980, s.109(2)."
Thus the jurisdiction between the courts is explicable and consistent.
"The position, therefore, appears to be this. If notice is given before the time stipulated, an appellant may abandon his appeal as of right, and if he does that, he is at no risk as to costs. If, however, he wishes to abandon, but does not give notice within the stipulated period, he may apply to abandon, but requires the leave of the court in order to do so."
"If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. If in private law a body would be in breach of contract in so acting or estopped from so acting a public authority should generally be in no better position. The doctrine of legitimate expectation is rooted in fairness. But fairness is not a one-way street. It imports the notion of equitableness, of fair and open dealing, to which the authority is as much entitled as the citizen."
The significance of this dictum is in the qualified terms in which it is explained. The doctrine prohibits one party from relying on strict rights which it has represented would not be enforced, leading the other party to act to his or her detriment. From the premise that public authorities should be in no better position, the concept of legitimate expectation has grown, but only as a generality - "it would often be unfair". In this case, there is no question of the court suggesting that it would not enforce rights for its benefit to the detriment of the appellant; the court is entitled unaffected by any costs order: it is a third party which is affected, namely the local authority. The court is simply not in a position to impact on the rights of the local authority which has expended costs and by statute is entitled to pursue them. Mr Broatch suggested that the court was offering the parties, or more particularly the appellant, what he described as "a deal" articulated in this way: "if you, the appellant, abandon your appeal early, thereby saving the court time, you will avoid an order for all costs incurred by the respondent to this appeal". I do not accept that the law permits the court to make such an offer and neither do I accept that anyone who understood the statutory arrangements which set up and operate the courts would believe that it did. It is worth underlining the notions of fairness upon which legitimate expectation is based. In my judgment, it is quite simply inconceivable that it could be considered that an official of the Crown Court could bind a judicial decision either of the Crown Court or the Magistrates' Court.