Business Rates - Costs Order against a Local Authority on a Complaint

Author: Simon Hill
In: Article Published: Thursday 30 May 2019

Share

When a Local Authority’s application by way of complaint for a liability order for allegedly unpaid national non-domestic rates (‘Business Rates’) is dismissed, withdrawn or discontinued, or otherwise comes to an end without a liability order being made, the respondent alleged ratepayer may wish to seek an order from the Magistrates Court that the Local Authority (‘Billing Authority’) do pay the alleged ratepayer’s legal costs of the proceedings. 

Similarly, an alleged ratepayer who has successfully applied for an order from the Magistrates Court, to set aside a Business Rates liability order under the Hamdan[1]common law jurisdiction, may wish to seek from the Magistrates Court, a costs order in respect to its costs of the application, against a Billing Authority.

This article will consider the relevant statutory provisions governing such costs applications, and whether Billing Authorities pursuing Business Rates fall into a special category of litigant, to whom the law offers an elevated measure of protection against adverse costs orders, due to the nature of the work undertaken. 

In analysing the law in this area, it will be necessary to consider cases beyond those involving Business Rates disputes. This is because the relevant statutory provisions discussed below apply to a wide field of cases. Significant cases guiding how the law applies, involve factual situations as diverse as licencing[2], anti-social behaviour[3]and forfeiture of cash[4]. These cases are illuminating as to how the law applies generally, despite it being the case that the facts bear little relationship to Business Rates. 

General Magistrates Court Costs Order Jurisdiction 

The statutory provision empowering the Magistrates Court to make costs orders is section 64 of the Magistrates Court Act 1980[5], save for where a complaint is ‘not proceeded with’[6]. Where the complaint concludes because it is ‘not proceeded with’, then the relevant statutory provision empowering the Magistrates Court to make a costs order is section 52 of the Courts Act 1971. 

Section 64 of the Magistrates Court Act 1980 and section 52 of the Courts Act 1971 

Taking those two sections in turn. Section 64 of the Magistrates Court Act 1980 is entitled ‘Power to award costs and enforcement of costs’ and reads:

‘(1) On the hearing of a complaint, a magistrates' court shall have power in its discretion to make such 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…

(2) The amount of any sum ordered to be paid under subsection 1 shall be specified in the order, or order of dismissal, as the case may be. 

(3) [Costs] ordered to be paid under this section shall be enforceable as a civil debt. 

(5) The preceding provisions of this section shall have effect subject to any other Act enabling a magistrates' court to order a successful party to pay the other party's costs.‘

Section 52 of the Courts Act 1971 is entitled 'Award of costs where information or complaint is not proceeded with', and reads (so far as not repealed):

(3) Where—

(b) a complaint is made to a justice of the peace acting in any local justice area but the complaint is not proceeded with, a magistrates' court acting in that area may make such order as to costs to be paid, by the complainant to the defendant as it thinks just and reasonable. 

(4) An order under subsection (3) above shall specify the amount of the costs ordered to be paid. 

(5) for the purpose of enforcement an order under subsection (3) above made in relation to a complaint which is not proceeded with shall be treated as if it were an order made under section 64 of the Magistrates' Courts Act 1980 (power to award, and enforcement of, costs in civil proceedings).’

A complaint ‘not proceeded with', will be a complaint[7]that is withdrawn, discontinued or otherwise brought to an end by the complainant (applicant), prior to final determination of the complaint by the Magistrates Court.

Restriction on Who may be Subject to a Costs Order

Parliament has placed some restrictions on the Magistrates Court in respect to the imposition of costs orders. The powers provided by sections 64 and 52 are limited, in that, the Magistrates Court can only impose costs orders under:

(1) section 64: (a) on defendants, where the complainant obtains from the Magistrates Court the order sought in the complaint; (b) on complainants, when the complaint is dismissed; and

(2) section 52: on complainants, where the complainant’s complaint is ‘not proceeded with’

The above restriction in section 64 on the general power of the Magistrates Court to impose costs orders, was confirmed by Stanley Burnton LJ in R (on the application of Perinpanathan) v the City of the Westminster Magistrates' Court [2010] 1 WLR 1508 (‘Perinpanathan’), where he said, at paragraphs 19 and 21:

The only statutory restriction on the power of the magistrates is that they cannot make an order for costs against a successful party. This restriction explains its wording.

section 64 precludes an order requiring a successful party to pay the costs of an unsuccessful party[8]

Somewhat less emphatically, Lord Neuberger in Perinpanathan said, at paragraph 58:

The only limitation affecting section 64(1) appears to me to be at least arguably that the magistrates' cannot make any award for costs in favour of an unsuccessful party.’[9]

Same Criteria – ‘as it thinks just and reasonable’

As will be apparent, each of these sections involves the same central criteria/test, that is: each section empowers the Magistrates Court, subject to the restrictions set out above, to make such order for costs ‘…as it thinks just and reasonable’. This similarity of criteria for exercising discretion as to costs was commented upon by Hickinbottom J in Chief Constable of Warwickshire v MT
 (2015) 179 J.P. 454; [2015] EWHC 2303 (Admin) (‘MT’)[10], on facts unrelated to Business Rates. In MT, Hickinbottom J quoted section 64 of the Magistrates Court Act 1980 and Section 52 of the Courts Act 1971, and said, at paragraph 16:

Thus it can be seen that section 64 of the 1980 Act and section 52 of the 1971 Act are formulated in similar terms, but the former applies where a claim is contested and fails, whereas the latter applies where a claim is made and “not proceeded with”. They therefore provide a comprehensive scheme covering all circumstances in which a case is not successful; and, whilst having different triggers, applying materially identical criteria for exercising discretion as to costs.’[11]

Reinforcing this point, Hickinbottom J in MT said, at paragraph 18:

‘…the formulation of those sections – and the criteria upon which the discretion in the magistrates is to be exercised – is essentially the same.’

The upshot of having criteria essentially the same, is that principles and guidance applicable to section 64 cases, is equally applicable to section 52 (and seemingly vice versa):

(1) MT was a section 52 case. At paragraph 18, Hickinbottom J said that the principles fashioned in the leading section 64 case of Bradford Metropolitan District Council v Booth( 2000) 164 JP 485 (Lord Bingham CJ and Silber J) (‘Booth’)[12], discussed below, ‘are equally applicable to section 52’; and

(2) R. (on the application of Ebbnie) v Chief Constable of Surrey [2008] EWHC 166 (Admin) (‘Ebbnie’) was a section 52 case[13]. Davis J in Ebbnie noted, at paragraph 6, that both sides agreed that ‘…the decision in Booth was in point and properly fell to be considered and that the Magistrates were required to have regard to it in deciding how to exercise their discretion in this case.’ Later, Davis J held, at paragraph 7, that the Magistrates Court ‘…were correct here to have regard to the decision in the Booth case and to that extent there can be no difficulty about the approach they adopted.’  

Discretion to Impose Costs Order ‘Just and reasonable’

Furthermore, structurally, the sections are similar, in that each section provides the Magistrates’ Court with a discretion whether to impose the order they consider ‘just and reasonable’. This is clear from the use of the word ‘may’ in section 52(3) and the use of the word ‘discretion’ in section 64(1). In other words, while the Magistrates Court may hold that it would be ‘just and reasonable’ to order one party to pay the other a sum towards that other’s legal costs, the Magistrates Court still retains a separate discretion, as to whether to go ahead and actually impose that costs order. It might be a rare occurrence that the Magistrates Court decide it would be just and reasonable to impose a costs order, but decide not to make that order, in their discretion, but the discretion is there. 

Just and Reasonable

Turning to the criteria ‘just and reasonable’, this criteria applies both[14]as to whether to impose any sum at all by way of costs (liability; also referred to as a discretion), and the amount of any such costs (quantum). In Booth, Lord Bingham CJ said, at paragraph 23:

Section 64(1) confers a discretion upon a magistrates' court to make such order as to costs as it thinks just and reasonable. That provision applies both to the quantum of the costs (if any) to be paid, but also as to the party (if any) which should pay them.’

Naturally, what is ‘just and reasonable’ will necessarily depend on what the facts are before the Magistrates Court, as found by the Magistrates Court. In Booth, Lord Bingham CJ said, at paragraph 23:

What the court will think just and reasonable will depend on all the relevant facts and circumstances of the case before the court.’

This will include the history of the litigation (procedure), including any litigation misconduct, and the substantive merits (substance).

While the criteria involves an subjective assessment, the permissible result of that assessment is not unfettered. That assessment, and the decision arising from that assessment, are curtailed by the requirement that the power be exercised lawfully and in accordance with authority. Hickinbottom J in MT, at paragraph 17, said: 

The discretion in magistrates to award costs under these provisions is patently wide, with a subjective element (“as it thinks just and reasonable”). The magistrates must nevertheless approach the exercise of the discretion in a lawful way. The proper approach has been the subject of a series of cases, and is now well-established.’

Booth Approach/Principle is Not to be Read too Rigidly

Recognizing the need for guidance on how the Magistrates Court should apply this criteria, to give a measure of certainty, while at the same time avoiding unduly prescriptive and inflexible rules, Lord Neuberger said, in Perinpanathan, at paragraph 59

It is clearly desirable that there are general guidelines, but it is equally important that any such guidelines are not too rigid. There is a difficult, if not unfamiliar, balance to be struck, namely between flexibility, so a court can make the order which is most appropriate to the facts of the particular case and the circumstances and behaviour of the particular parties, and certainty, so that parties can know where they are likely to stand in advance, and inconsistency between different courts is kept to a minimum.’

No General Rule that Costs ‘Follow the Event’

The test of ‘just and reasonable’ is not accompanied by the Civil Procedure Rules’ ‘general rule’ that costs ‘follow the event’. Lord Neuberger made this point in Perinpanathan. After noting at paragraph 57 that the then[15]current CPR r 44.3(2)(a) stated that “the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party”, Lord Neuberger said, at paragraph 58:

‘There is no provision such as CPR r 44.3(2)(a) in the relevant provision governing costs ... section 64... The only limitation in section 64(1) appears to me to be that, at least arguably, the magistrates cannot make any award of costs in favour of an unsuccessful party. Apart from that, I consider that the section confers an ostensibly unfettered discretion, and, in particular, a discretion which contains no presumption such as that plainly contained in CPR r 44.3(2)(a)'

This does not mean that the Magistrates Court cannot hold that costs should ‘follow the event’, only that there is no presumption or general rule that costs ‘follow the event’. In Booth, Lord Bingham CJ said, at paragraph 23:

‘The court may think it just and reasonable that costs should follow the event, but need not think so in all cases covered by the subsection.’

In Perinpanathan, Stanley Burnton LJ said, at paragraph 19:

The only statutory restriction on the power of the magistrates is that they cannot make an order for costs against a successful party. This restriction explains its wording. It does not provide any "steer" or indication to the court that costs should follow the event, although in cases between private individuals that is likely to be the order failing good reason to deprive a successful party of some or all of his costs.

Booth Case and Costs Orders Against Billing Authorities

In both the scenarios under consideration in this article, the Magistrates Court is being asked to impose a costs order against a Billing Authority, a Local Authority. These scenarios do not involve ‘…cases between private individuals…’ and so Stanley Burnton LJ’s statement in paragraph 19 of Perinpanathan, quoted above, will not apply.

The law places certain public authorities performing public/regulatory/disciplinary functions into a special category of litigant. A category that involves the Magistrates Court considering certain factors with particular prominence, when deciding what it thinks would be ‘just and reasonable’ in the circumstances (the exact bodies falling into this category has not been fully worked out yet). A leading case on this category and the additional factors relevant to this category, is Booth, where Lord Bingham CJ formulated[16]the appropriate approach/principle (or proposition[17]) to costs against this category of litigant, at paragraph 23:

‘…Where a complainant has successfully challenged before justices an administrative decision made by a police or regulatory authority acting honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both (i) the financial prejudice to the particular complainant in the particular circumstances if an order for costs is not made in his favour; and (ii) the need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged.’

Just and Reasonable – Business Rates

Booth was a licensing case, involving an appeal against a local authority’s decision not to renew a private car hire business licence[18]. The Lord Bingham stated the above to apply to '...an administrative decision made by a police or regulatory authority...'.[19] It therefore was not apparent from Booth itself, whether the Booth approach/principle was intended to apply further afield, and in particular for the purposes of this article, to billing authorities performing tax collection functions. This question came up for direct consideration in the leading case on Business Rates, Patel v Camden LBC [2013] EWHC 2459 (‘Patel’). The Court in Patel had to consider the scope of the Booth approach/principle and whether it applies also to Billing Authorities performing Business Rates tax collection functions. 

In Patel, the Billing Authority had issued complaints in the Magistrates Court against the alleged ratepayer defendant Mr Patel, seeking a liability order for about £188,000 of unpaid and allegedly due Business Rates in respect to a property. When the Billing Authority’s complaint was dismissed by the Magistrates Court, the defendant applied to the Magistrates Court for a costs order against the Billing Authority, contending that ‘costs should follow the event’ (paragraph 3) and that the Billing Authority had acted ‘irresponsibly and irrationally in pursuing their claim’ (paragraph 3) that he was responsible for Business Rates. The Billing Authority argued that no order for costs should be made. 

The defendant’s application for costs against the Billing Authority was refused, the Magistrates Court DJ applying Booth; the defendant appealed. 

The Appeal by way of Case Stated questions, posed to the High Court in Patel, were:

‘Was I correct to conclude that the case of [Booth] applied to costs in this type of case? 

When I refused to make a costs order in favour of the [alleged ratepayer] did I correctly exercise my discretion under section 64 of the Magistrates' Courts Act 1980 and in accordance with the principles set out in Booth, if it applies? 

Was there sufficient evidence for me to conclude that the [Billing Authority] had acted honestly and reasonably in pursing the application for liability orders? 

In all the circumstances, when exercising my discretion, was I entitled to refuse to make a costs order in favour of the [alleged ratepayer]?’

In the High Court, Patel came before Silber J, who had sat with Lord Bingham CJ in Booth. In order to establish whether the Booth approach/principle applied to billing authorities in Business Rates cases, Silber J in Patel turned to the Court of Appeal decision and reasoning in Perinpanathan

In Perinpanathan, the Court of Appeal had applied Booth to a situation where the  Police, a public body performing public functions, had applied unsuccessfully for an order for forfeiture of some cash under the Proceeds of Crime Act 2002. 

After endorsing the Booth approach/principle with respect to licensing cases, and saying it was ‘…applicable to disciplinary proceedings before tribunals at first instance brought by public authorities acting in the public interest…’, Stanley Burnton LJ in Perinpanathan stated that he derived the following propositions (amongst others) from the authorities, at paragraphs 40 (3) and (4):

‘Whether the principle should be applied in other contexts will depend on the substantive legislative framework and the applicable procedural provisions. 

The principle does not apply in proceedings to which the CPR apply;’

Booth Approach/Principle applies to Business Rates Cases

On the basis of this, Silber J in Patel noted, at paragraph 35, that the answer to the question whether the Booth approach/principle applied to a billing authority exercising its revenue collection functions (including acting in Business Rates cases) ‘…will depend on "the substantive legislative framework and the applicable procedural provisions"…’, namely the Local Government Finance Act 1988 and the various regulations made under it (paragraph 41). 

In determining this issue, after noting the basic structure of Business Rates law, from paragraphs 41 to 44, Silber J turned to Slade LJ’s review in Ratford v Northhaven District Council [1986] RA 137 (‘Ratford’) of the principles applicable to billing authorities commencing and pursuing Business Rate cases, and the burden of proof on aspects of establishing liability where liability for Business Rates is in dispute[20].

It was from the observations made, and balance struck in Ratford, that Silber J concluded in Patel, at paragraph 47, that:

‘…the billing authority are public authorities charged with the statutory duty of recovered rates on behalf of community. That was explained clearly in the Ratford decision. There are, of course, difficulties for billing authorities in recovering rates where the identity of the occupier is unknown and it is likely to produce many cases each year in which the authority has little knowledge. 

To my mind it is clear that [the Billing Authority] as a public authority was charged with recovering the rates in this particular case and its role would fall within the category of bodies which were entitled to the protection within the Booth regime as they were performing the exercise of public duty which would appear to have fallen within the words of Lord Bingham in the Booth case at paragraph 26 where he sets out the factors that would have to be taken into account.’

Drawing this together, Silber J in Patel concluded, at paragraph 55:

‘…as matter of principle,… [the Billing Authority] was performing a public function by collecting rates. For those reasons I consider that the Booth principle applied.

Booth Approach/Principle as Developed by Perinpanathan

In light of the fact that the Booth approach/principle applies to Business Rates cases, it is necessary to consider it in a little more detail. Firstly, it is observed that the Booth case did not set down a test per se, but rather it identified a series of additional factors which the Magistrates Court should take into account when considering an application for costs against a Billing Authority. Stanley Burnton LJ in Perinpanathan at paragraph 45, agreed with Goldring LJ in the Divisional Court below, where Goldring LJ had said, at paragraph 32:

‘“It is necessary too to emphasise the limits of what is said in the [Booth] case. It is not, as Davis J said in R (Ebbnie) v Chief Constable of Surrey Police [2008] EWHC 166 (Admin) (a decision with which it follows I agree) setting out any sort of a test. The [Booth] case merely sets out a series of factors which the court should take into account in the application of section 64 of the 1960 Act. The court, as Lord Bingham CJ said, may think it just and reasonable that costs should follow the event. It is worth too emphasising the words ‘in addition’ which precede sub-paragraphs (i) and (ii) of Lord Bingham's third proposition.’ 

Secondly, it is noted that the nature of the Booth approach/principle was developed in Perinpanathan, or, as George Leggart QC sitting as a deputy High Court Judge put it, in R. (on the application of Newham LBC) v Stratford Magistrates' Court [2012] EWHC 325 (Admin) ('Newham'), at paragraph 31, 'somewhat strengthened in their formulation​'. This is apparent from what Stanley Burnton LJ said in Perinpanathan, where he stated, at paragraphs 40(5), (6) and (7):

‘Where the principle applies, and the party opposing the order sought by the public authority has been successful, in relation to costs the starting point and default position is that no order should be made. 

A successful private party to proceedings to which the principle applies may none the less be awarded all or part of his costs if the conduct of the public authority in question justifies it.

Other facts relevant to the exercise of the discretion conferred by the applicable procedural rules may also justify an order for costs. It would not be sensible to try exhaustively to define such matters, and I do not propose to do so.’ 

This is a refashioning of the Booth approach/principle, fashioning it so that, where the Booth approach/principle applies, ‘no order as to costs’ is the starting point and default position, though costs may be awarded in whole or in part, where, for instance, the Billing Authority’s (mis)conduct justifies it.

Summarizing the developed approach in Perinpanathan, Silber J said, at paragraphs 22 and 23: 

The reasoning of the Court of Appeal was that the approach to awards of costs under section 64(1) of the 1980 Act was not to start from the proposition of costs following the event, but instead to start from the different presumption that no order for costs should be made. 

Nevertheless, the magistrates had a duty to make such order for costs as were just and reasonable within the constraints of section 64(1) taking into account all the circumstances. So an order for costs in a successful client's favour might be justified by other factors relevant to the decision of the magistrates….’ 

In Leeds City Council v Leeds District Magistrates [2013] EWHC 1346 (Admin) ('Leeds City'), involving a successful appeal in the Magistrates Court against a local authority's sub-committee ruling, Supperstone J confirmed the default position: 

'The default position is that no costs should be awarded upon an appeal being successful'

The statutory provision empowering the Magistrates Court to order costs in Leeds City was Section 181(2) of the Licencing Act 2003, but that provision provides that the Magistrates Court may make such order as to costs as it thinks fit, and Supperstone J said, at paragraph 10:

'The costs power under section 181(2) of the 2003 Act is, for all intents and purposes, no different to the costs power pursuant to section 64(1) of the 1980 Act.

(see also Scott Baker LJ in Crawley BC v Attenborough [2006] EWHC 1278 (Admin) ('Crawley'), an alcohol licensing case, paragraph 8)

Two Factors which May Justify an Adverse Costs Order against a Billing Authority

While no exhaustive list of possible factors justifying an adverse costs order has been established, two factors have been identified. Silber J in Patel summarized these, at paragraphs 22 and 23: 

‘…factors could include first the financial hardship of the particular claimant, if no costs order were made in his favour, and second the fact that the conduct of the local authority had been unreasonable.’

Financial Prejudice to Alleged Ratepayer

To potentially warrant a costs order against the Billing Authority, the hardship that the alleged ratepayer would otherwise suffer must be substantial. It was said in Newham, at paragraph 31, that:

'...what is required is evidence that that party would suffer exceptional and substantial financial hardship.'

The financial prejudice from having to bear one's own legal costs of the litigation will not be sufficient. In Newham, the Deputy High Court Judge said, at paragraph 43 that there is '...the need to demonstrate hardship over and above that which every private party suffers who incurs legal costs.'

Stanley Burnton LJ in Perinpanathan stated, at paragraph 41:

‘Lord Bingham CJ stated that financial prejudice to the private party may justify an order for costs in his favour. I think it clear that the financial prejudice necessarily involved in litigation would not normally justify an order. If that were not so, an order would be made in every case in which the successful private party incurred legal costs. Lord Bingham CJ had in mind a case in which the successful private party would suffer substantial hardship if no order for costs was made in his favour.’

Stanley Burnton LJ further agreed, at paragraph 41, with R (Cambridge City Council) v Alex Nestling Ltd (2006) 170 JP 539, where Toulson J said, at paragraph 12: 

‘As to the financial loss suffered by the successful appellant, a successful appellant who has to bear his own costs will necessarily be out of pocket, and that is the reason in ordinary civil litigation for the principle that costs follow the event. But that principle does not apply in this type of case. When Lord Bingham CJ referred to the need to consider the financial prejudice to a particular complainant in the particular circumstances, he was not ... implying that an award for costs should routinely follow in favour of a successful appellant; quite to the contrary.

Conduct of the Billing Authority

It was expressly recognized in Booth, that the public authority’s conduct may justify an adverse costs order being made against it. Such conduct must be more than simply a Billing Authority having pursued a complaint/resisted a complaint, and lost. In Newham, the Deputy High Court Judge said, at paragraph 40:

'The [Booth] case clearly contemplates that there can be a range of judgments which a local authority can properly make without its decision being capable of being characterised as unreasonable...'

The Magistrates Court will need to assess the Billing Authority’s litigation conduct, to judge whether a costs order is justified. The level of scrutiny expected of the Magistrates Court, can be gleaned from the following passage of Lord Neuberger in Perinpanathan, at paragraph 77 (substituting ‘Billing Authority’ for ‘police’, and Business Rates for the subject matter of the case, as appropriate)

The effect of our decision is that a person in the position of the claimant, who has done nothing wrong, may normally not be able to recover the costs of vindicating her rights against the police in proceedings under section 298 of the 2002 Act, where the police have behaved reasonably. In my view, this means that magistrates should exercise particular care when considering whether the police have acted reasonably in a case where there is an application for costs against them under section 64. It would be wrong to invoke the wisdom of hindsight or to set too exacting a standard, but, particularly given the understandable resentment felt by a person in the position of the claimant if no order for costs is made, and the general standards of behaviour that can properly be expected from the police, it must be right to scrutinise their behaviour in relation to the seizure, the detention, and the confiscation proceedings, with some care when deciding whether they acted reasonably and properly.

Moreover, Goldring LJ in the Divisional Court in Perinpanathan, emphasized that this Booth approach/principle special protection ought not to lead to public authorities adopting a ‘carte blanche’ approach to such litigation; inappropriate applications (and presumably inappropriate resistance to applications) should be met with adverse costs orders. Goldring LJ said, at paragraph 33 (approved by Stanley Burnton at paragraph 45), that:

…it should not be thought that those who bring these applications have carte blanche to make applications…without any risk of costs being awarded against them. Such applications can result in grave injustice if not made honestly, reasonably, properly and on grounds that are sound. If applications are made inappropriately, the court should not hesitate to make an order for costs against the applicant.’ 

The Magistrates Court do not have to make a finding that the Billing Authority acted unreasonably, in order to impose an adverse costs order on the Billing Authority. Such a submission was rejected by Scott Baker LJ in Crawley, an analogous section 181(2) case, at paragraph 13:

'In my judgment, [counsel for the local authority] is seeking to import into the magistrates' discretion something that the statute does not specifically say.

An example of a case where the Magistrates Court did impose a costs order against a public body, is Ebbnie. The costs order was imposed after a finding that the public body had acted unreasonably. It was found that the public body (the police) should have withdrawn the complaint sooner[21]

Not Determinative that Billing Authority acted honestly, reasonably, properly and on sound grounds 

A finding that the Billing Authority has acted honestly, reasonably, properly and on grounds that are sound, does not automatically rule out an adverse costs order against a Billing Authority. The test is not so clear cut[22], though such a finding will be a most important factor. As Toulson J said in R (Cambridge City Council) v Alex Nesting Ltd [2006] EWHC 1374 (Admin), (2006) 170 JP 539, at paragraph 11:

'Although as a matter of strict law the power of the court in such circumstances to award costs is not confined to cases where the Local Authority acted unreasonably and in bad faith, the fact that the Local Authority has acted reasonably and in good faith in the discharge of its public function is plainly a most important factor.'

Quantum of Costs 

On quantum of recoverable costs, after quoting s.64, Langstaff J said in Thaker v Tameside MBC [2011] EWHC 2354 (Admin); [2012] R.V.R. 36 ('Thaker'), at paragraph 21 that 'that gives a wide discretion to the court.

In Tower Hamlets LBC v Thames Magistrates Court [2012] EWHC 961 (Admin) ('Thames'), a challenge in the Magistrates Court to an alcohol licencing subcommittee decision, Burnett J said, at paragraph 47:

'The general principles when considering the question of costs applications as regards quantum are well known. This judgment is not the place to seek to summarise them but a number of points bear some emphasis:

1. The indemnity principle means that the sum claimed cannot be more than the client is liable to pay his solicitor.

2. Guideline rates for solicitors practising in different locations are published in the White Book for the purposes of assisting summary assessments in civil proceedings (see CPR 48.49). Whilst not directly applicable to complex matters in the Magistrates' Court, it would be rare for a higher hourly rate to be allowed. It might also assist magistrates and District Judges if their attention were drawn to those guideline rates.

3. When deciding the amount of costs to be awarded, the court will take account of all of the circumstances of the case but they include the following:

(a) What was at stake in the proceedings?

(b) What was the importance of the issue to the parties before the court?

(c) What was the complexity of the appeal?

(d) What skill, specialist knowledge and responsibility did the lawyers concerned require or assume?

(e) How much time was actually spent?

In the round, the court will be concerned to check that the expenditure actually incurred was reasonable, and ensure that any award of costs is proportionate.'

Cost Schedules 

The High Court in Thaker held that, while there is no statutory requirement that a party seeking costs must produce a costs schedule for the justices (the author interjects, for instance, on CPR Form N260), it is, Langstaff J said, as a matter of practice, to be commended, and that it would normally be expected. 

In Thames, Burnett J considered the matter in more detail, at paragraphs 44 to 49.

At paragraph 44 in Thames, Burnett J noted the Billing Authority's submission that 'the costs claimed should have been particularised in writing', and said:

'By contrast with the provisions of the CPR , there are no formalities prescribed in connection with summary costs applications in the Magistrates' Court. That is for good reason. The Magistrates' Court deals for the most part with short cases. Applications for costs are generally made for relatively small amounts, the reasonableness of which magistrates and District Judges are well able to determine by using their experience and knowledge of local charges and the nature of the cases they regularly deal with. Even then the paying party is entitled as a matter of fairness to have an explanation of the claim, with a breakdown of rates, time spent and the nature of the work done, to enable a challenge to be made to any aspect of the claim. Routinely, such applications are made orally.'

Burnett J said, at paragraph 46:

'When a regulatory body is concerned with a matter in the Crown Court and wishes to recover its costs, it routinely produces a detailed breakdown to assist the court and the other party. So too, in my judgment, should parties in complex matters in the Magistrates' Court who might be seeking substantial costs orders. A failure to do so might found a reason why an application for costs should fail in whole or in part, if the court concluded that it could not satisfactorily explore the detail or the paying party were disadvantaged in challenging the quantum. The production, and indeed exchange, of such short statements of costs would be likely substantially to shorten summary costs assessments in Magistrates' Courts. They are often likely to lead to agreements on quantum, even if the principle of recoverability is in issue. Solicitors are well used to producing such statements of costs for summary assessment in all civil proceedings, as indeed both parties have in connection with this appeal by way of case stated. The form of such statements can be adapted readily to fit the circumstances of any case in the Magistrates' Court.'

Applications to set aside Liability Orders

Where a public/regulatory authority is opposing the grant of relief, the Booth approach/principles will apply (see Perinpanathan, paragraph 76).

An application for an order setting aside a existing Business Rates liability order is an interim application. Seemingly, where a Billing Authority decides to resist that application, that administrative decision will be part of its wider tax collection functions and, coupled with its inclusion within the special category of litigant, the Billing Authority will be protected by the Booth approach/principle should the successful alleged ratepayer seek a costs order against the Billing Authority, in relation to that set aside application.  

Appealing the Magistrates Court’s decision on Costs 

A decision of a Magistrates Court on costs is itself appealable, whether the Magistrates Court to impose a costs order, or not, and the quantum of the costs order imposed. However, as stated in Ebbnie by Davis J, at paragraph 10, the High Court ‘…should be slow to interfere with a decision of the [Magistrates Court] on a question of costs, when by statute the [Magistrates Court is] given the powers of deciding what is just and reasonable.’ Further, Davis J said that the High Court ‘…can only interfere …if the exercise of the discretion and the conclusion of the [Magistrates Court] was outside a range reasonably open to [it]. It is not a matter of considering whether or not other courts might have taken a different view.

Appeals

The Booth approach/principle will not apply beyond 1st instance. On appeal by way of Case Stated, the CPR will apply to the High Court proceedings[23].

Conclusion

When a Billing Authority issues a Business Rates complaint in the Magistrates Court and later that complaint is dismissed by the Magistrates Court, withdrawn or discontinued, or otherwise comes to an end without the sought liability order being made, and the alleged ratepayer seeks a costs order from the Magistrates Court against the Billing Authority, Patel has determined that the Booth approach/principle will apply to the Magistrates Court’s exercise of its powers under Section 64 of the Magistrates Court Act 1980 and section 52 of the Courts Act 1971. The starting point and default position will be ‘no order as to costs’. Only where countervailing factors justify a different result, an adverse costs order against the Billing Authority, should this 'presumption' be found to be rebutted, and an adverse costs order be imposed.

Similarly, it appears that the Booth approach/principle applies where an alleged ratepayer successfully applies for an order from the Magistrates Court, to set aside a Business Rates liability order under the Hamdan common law jurisdiction, and seeks a costs order against the Billing Authority. 

The underlying rational is that billing authorities are public authorities, undertaking revenue collection functions, and when acting ‘…honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of its public duty’, they should not be discouraged from making and standing by administrative decisions on behalf of the community, because of fear of exposure to adverse costs orders if that decision later proves to have been misguided/wrong. The level of special protection granted to this category of litigant is not absolute. Factors can militate in favour of a costs order, and so the Magistrates Court should scrutinizes all the circumstances of the case, before reaching a decision on costs; two such factors are where the conduct of the Billing Authority’s warrants one; and where the alleged ratepayer would otherwise suffer substantial financial prejudice, arising not simply from not receiving a costs order, if no costs order is made. 

Summarizing Perinpanathan, Hickinbottom J in MT, concluded, at paragraph 21, that:

‘The court … confirmed and emphasised that, in contradistinction to a normal civil case in which there is a strong presumption that the discontinuing party will pay the other party's costs (see CPR rule 38.6), when a regulatory function is being exercised a costs order will generally only be made on a withdrawal if the regulator's conduct justifies it, e.g. if no order for costs would result in substantial hardship for the other party, or if the regulatory function was exercised in bad faith or unreasonably.[24]

This will apply not only to withdrawn or discontinued Billing Authority complaints, but also where a Billing Authority is unsuccessful at trial. Pithily, Stanley Burnton LJ in Perinpanathan said, at paragraph 42: 

Ultimately, the duty of the magistrates' court is to make such order as to costs as is just and reasonable, subject to the constraint imposed by section 64.’  

SIMON HILL © 2019

BARRISTER

33 BEDFORD ROW

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.


[1]See The Queen on the Application of Brighton and Hove City Council v Brighton and Hove Justices v Michael Hamdan [2004] R.A. 277. See also Liverpool City Council v Pleroma Distributions Ltd [2002] EWHC 2467 (Admin) and Chuckwu v Redbridge [2015] EWHC 2683 (Ch).

[2]See, for example, City of Bradford Metropolitain District Council v Booth [2000] EWHC (Admin) 444; R v Stafford Crown Court ex parte Will Gilt Staffords [1992] All ER 955; which dealt with the licensing and betting offices, and R (on the application of Cambridge City Council) v Alex Nestling Ltd [2006] 170 JP Report 539. 

[3]See, for example, Manchester City Council v Manchester Magistrates' Court [2009] EWHC 1866

[4]See, for example, R (on the application of Perinpanathan) v the City of the Westminster Magistrates' Court [2010] 1 WLR 1508

[5]Section 64 of the Magistrates Court Act 1980 is entitled ‘Power to award costs and enforcement of costs’ and reads:

‘(1) On the hearing of a complaint, a magistrates' court shall have power in its discretion to make such 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…

(2) The amount of any sum ordered to be paid under [ subsection (1) [...] ] dismissal, as the case may be. 

(3) [Costs] ordered to be paid under this section shall be enforceable as a civil debt. 

(5) The preceding provisions of this section shall have effect subject to any other Act enabling a magistrates' court to order a successful party to pay the other party's costs.‘

[6]In Chief Constable of Warwickshire v MT (2015) 179 J.P. 454; [2015] EWHC 2303 (Admin), Hickinbottom J said, at paragraph 13, ‘The relevant statutory provisions for costs orders in the magistrates' court in civil proceedings are as follows.’ before quoting, at paragraph 14, section 64 of the Magistrates Court Act 1980 and Section 52 of the Courts Act 1971. Hickinbottom J then said, at paragraph 16:

‘…section 64 of the 1980 Act and section 52 of the 1971 Act are formulated in similar terms, but the former applies where a claim is contested and fails, whereas the latter applies where a claim is made and “not proceeded with”. They therefore provide a comprehensive scheme covering all circumstances in which a case is not successful…’

[7]As indicated in the introduction to this article, in the field of Business Rates, the main two types of complaints (and so the main types of complaints that might be withdrawn, discontinued, or otherwise not pursued), are: 

(1) where the Billing Authority applies by way of complaint for a liability order for outstanding and unpaid Business Rates; and

(2) where an alleged ratepayer applies by way of complaint for an order setting aside a liability order made against the alleged ratepayer, in respect to Business Rates. 

[8]This supersedes any lack of clarity in a broad statement of principle made by Lord Bingham CJ in the High Court, in City of Bradford Metropolitan District Council v Booth [2000] EWHC (Admin) 444, where he said, at paragraph 23, that:

Section 64(1) confers a discretion upon a magistrates' court to make such order as to costs as it thinks just and reasonable. That provision applies both to the quantum of the costs (if any) to be paid, but also as to the party (if any) which should pay them.’

[9]Later, in Perinpanathan, when Lord Neuberger spoke of the cases relied upon by Lord Bingham CJ in Booth, as leading to the Booth propositions. Lord Neuberger said, at paragraph 61, he was less equivocal:

The statutory power considered in those previous decisions was contained in section 193B(1) of the Licensing Act 1964, which is set out in para 20 [in Perinpanathan], and plainly gave the court an unfettered discretion, in other words, a power similar to that conferred by section 64 (save that it did not prevent costs being awarded against a successful party).

[10]Chief Constable of Warwickshire v MT 
(2015) 179 J.P. 454; [2015] EWHC 2303 (Admin) was an appeal by way of Case Stated against a Magistrates Court order, requiring the Chief Constable to pay about £3,200 in costs to a respondent. The Chief Constable had issued an application by way of complaint for a Sexual Offences Prevention Order (“SOPO”) in respect of the respondent but, as a result of respondent moving out of the Warwickshire area, the Chief Constable subsequently notified the Magistrates’ Court that he was withdrawing the application. The respondent applied for a costs order, and the Magistrates Court acceded to that application, making an order under section 52 of the Courts Act 1971.

[11]Section 64 of the Magistrates Court Act 1980 covers the situation where the complaint, at final hearing, is successful, and where it is dismissed – see section 64(1). So both possible outcomes. Section 52 covers where the complaint is not proceeded with, to that final hearing. 

[12]In some authorities, the case is referred to as the ‘Bradford case’ or simply ‘Bradford’, for instance R (on the application of Perinpanathan) v the City of the Westminster Magistrates' Court [2010] 1 WLR 1508. However, in Patel v Camden LBC [2013] EWHC 2459, the leading authority on Business Rates costs orders against billing authorities, it is referred to as ‘Booth’ or the ‘Booth case’, and so that label is adopted in this article. 

[13]In R. (on the application of Ebbnie) v Chief Constable of Surrey [2008] EWHC 166 (Admin), the police issued an application for forfeiture of some seized cash, but later withdraw the application.

[14]In Bradford Metropolitan District Council v Booth (2000) 164 JP 485, the Magistrates Court had held that ‘just and reasonable’ test applied only to quantum. On appeal, Lord Bingham CJ found this to be a misdirection. He said, at paragraph 22:

It seems to me that the justices in this case misdirected themselves, first, in relying on a principle that costs should follow the event, that misdirection being compounded by their view that the reference in section 64 to the order being just and reasonable applied to quantum only.’

Stanley Burnton LJ in R (on the application of Perinpanathan) v the City of the Westminster Magistrates' Court [2010] 1 WLR 1508, said, at paragraph 19:

In my judgment, section 64 is concerned with both liability for costs and their amount.

[15]This Civil Procedure Rule (‘CPR’) rule is found in the 2019 CPRs, at CPR r.44.2(2), which reads:

‘(2) If the court decides to make an order about costs—

(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) the court may make a different order.’

[16]Lord Bingham CJ in Bradford Metropolitan District Council v Booth [2000] EWHC (Admin) 444, founded his summary of the appropriate approach, on two cases: (1) R v Merthyr Tydfil Crown Court ex parte Chief Constable of Dyfed Powys Police [2001] LLR 133 (‘Merthyr Tydfil’); and (2) Chief Constable of Derbyshire v Goodman and Newton [2001] LLR 127 (‘Goodman’); as well as R v Totnes Licensing Justices, Ex p Chief Constable of Devon and Cornwall (1990) 156 JP 587 (‘Totnes’). These cases were analysed again in Perinpanathan, paragraphs 21-23.

In Totnes, Roch J had quashed a decision of licensing justices, to make an order for costs against the police in favour of a successful licensee, who’s licence renewal had been objected to by the police. Roch J said, at 590–591:

‘In my judgment it was wrong for the justices to treat this matter as civil proceedings between two private litigants and to ignore the factor urged upon them by the solicitor appearing for the police authority, namely, that the police have a function which they are required to perform. They are required to supervise the proper conduct of licensed premises and to object in those cases where there are good grounds for objecting to the renewal of the licence. That that is the police's function is clearly demonstrated by the provisions in the Licensing Act [1964] which give the police power to enter licensed premises whether at the invitation of the licensee or not. In addition, in my view, the police authority must also bring to the attention of the licensing justices matters of which the police know and which can fairly and properly be said to amount to misconduct by the licensee or those for whom he is responsible.

Lightman J in Merthyr Tydfil, followed the Totnes case.  

In Goodman, the respondents had successfully appealed in the Crown Court, the revocation of their firearms licences. On a challenge to a subsequent costs order, the Court of Appeal was left to consider a power to the Crown Court to ‘make such order for costs as it thinks just’. May LJ, said 131-132:

It is of course important to say that decisions as to costs are discretionary and that any court or tribunal exercising such discretion is obliged to take into account all relevant circumstances. One such relevant circumstance was that this was indeed a police authority performing a statutory licensing function. This will not be determinative of all cases, but it is important that the tribunal takes into account that, generally speaking, a cost order adverse to such an authority would not be made unless there was some good reason for doing so, which was more than the fact that the other party to the contest had succeeded ... In my view, this is a borderline case so far as costs are concerned. I can certainly see some force in [counsel's] submissions, but exercising afresh, as in my view we are entitled to do, the discretion which Judge Morrison exercised, I consider on balance that this is not a case where costs ought to have been ordered against the chief constable. He acted, as the judge held, in complete good faith and, in those circumstances, the costs order ought not to have been made against him.’

Perinpanathanalso relied upon R v Uxbridge Justices, Ex p Comr of Police of the Metropolis [1981] QB 829 (‘Metropolis’). Stanley Burnton LJ in Perinpanathan summarized the facts in Metropolis, at paragraph 26, as:

‘The applicant had been arrested and sentenced to 18 months' imprisonment for handling stolen currency notes from travellers at an airport. In the course of investigating the offences the police came into possession of, and held, money in the form of currency notes which they had found in his house. The applicant claimed that the money belonged to him. While he was in prison he applied to justices for the delivery of the money to him pursuant to section 1(1) of the Police (Property) Act 1897 and a summons in the form of a complaint was issued addressed to the Commissioner of Police of the Metropolis for attendance to answer the complaint. The police did not oppose the application at the hearing. The justices ordered the return of the money to the applicant and awarded him £350 costs.’ 

Amongst the judgments relied upon, was the judgment of Sir Stanley Rees, at 848:

In short, in my judgment, the proper approach to an application for costs in such proceedings should most certainly not be on the basis that costs should simply follow the event, but rather that the discretion to award them should be sparingly exercised, having regard to the exceptional nature of the role of the police as custodians of the property in issue, who require an order of the court to protect them before the delivery up of the property to a claimant.’

Reference was made to Mercer v Oldham [1984] Crim LR 232, where the police’s appeal against an adverse costs order was dismissed, the Magistrates Court having been critical of the police for taking no steps to ascertain the state of knowledge of the owner of a car, as to whether a bailee was to use it in a crime.  When dismissing the appeal, the Divisional Court had said:

‘In matters of this kind, it was of the utmost assistance to the justices that the police should be present at court, both to indicate whether or not they objected to the order being made, and to test the evidence of a claimant. In such circumstances, the justices would normally make no order for costs. But they did have a discretion, and if they considered that the police had gone beyond their usual role of merely assisting the justices, and had actively opposed the order, then there was no reason why the justices should not, in the exercise of their discretion, order the police to pay costs. That was clearly what happened in the present case.’ 

Reference was also made to British Telecommunications plc v Office of Communications [2005] CAT 20, contextually a very different set of proceedings, but for the simple point that, ‘…a public authority carrying out a public duty and acting reasonably was not to be required to pay the costs of its successful opponent in litigation.’ (in Perinpanathan, at paragraph 31)

Perinpanathan distinguished In re Southbourne Sheet Metal Co Ltd [1993] 1 WLR 244 (‘…as resulting from the provisions of the applicable RSC.’ (paragraph 35)) and Grimes v Crown Prosecution Service [2004] 1 FLR 910 (the Booth ‘…principle was not applied because CPR Pt 44 applied to the litigation.’ (paragraph 37). 

It was noted that in Perinpanathan, at paragraph 39, that in Walker v Royal College of Veterinary Surgeons [2008] UKPC 20, the ‘…Judicial Committee did not question the principle applied in the cases of [Booth] and [Baxendale] to decisions at first instance.’

[17]Lord Bingham CJ in City of Bradford Metropolitan District Council v Booth [2000] EWHC (Admin) 444 referred to them as ‘propositions’. In later authorities, proposition 3 tends to be referred to as a ‘principle’.

[18]In Booth, a Local Authority had refused to renew a private hire operator’s licence, taking the view that the applicant Mr Booth had breached conditions attached to the licence. Mr Booth appealed to the Magistrates Court against this refusal to renew, and following findings in the Magistrates Court that Mr Booth hadn’t breach the conditions, Mr Booth’s licence was renewed on the same conditions and terms as before. Mr Booth applied for his costs, and the Magistrates Court formed the view that costs should follow the event, subject to the costs being just and equitable. On appeal in Booth, the following questions were posed to the High Court (Lord Bingham CJ and Silber J):

"a) Were we correct in law in finding that the principle that “costs follow the event” apply against Local Authorities who make decisions on licensing functions which they are required to perform? 

b) Were we correct in law in finding that there was no requirement that we be satisfied that the Local Authority had acted unreasonably or in bad faith, before we could order costs against the Local Authority?’ 

Lord Bingham CJ explained the appropriate approach to costs, at paragraph 23:

"…the proper approach to questions of this kind can for convenience be summarised is (sic) three propositions: 

(1) Section 64(1) confers a discretion upon a magistrates' court to make such order as to costs as it thinks just and reasonable. That provision applies both to the quantum of the costs (if any) to be paid, but also as to the party (if any) which should pay them. 

(2) What the court will think just and reasonable will depend on all the relevant facts and circumstances of the case before the court. The court may think it just and reasonable that costs should follow the event, but need not think so in all cases covered by the subsection. 

(3) Where a complainant has successfully challenged before justices an administrative decision made by a police or regulatory authority acting honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both (i) the financial prejudice to the particular complainant in the particular circumstances if an order for costs is not made in his favour; and (ii) the need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged.’

The first question posed in Booth was answered in the negative, the second question in the affirmative. 

[19]The Booth approach/principle was confirmed as applying to disciplinary proceedings. In Baxendale-Walker v The Law Society [2007] EWCA Civ, a case concerning disciplinary proceedings brought by the Law Society against a solicitor, Moses LJ, giving judgment of the Divisional Court, said:

'Absent dishonesty or a lack of good faith, a costs order should not be made against such a regulator unless there is good reason to do so. That reason must be more than that the other party had succeeded. In considering an award of costs against a public regulator the court must consider on the one hand the financial prejudice to the particular complainant, weighed against the need to encourage public bodies to exercise their public function of making reasonable and sound decisions without fear of exposure to undue financial prejudice, if the decision is successfully challenged.'

That statement of the law was approved on appeal in the judgment of the Court of Appeal at paragraph 39.

[20]Slade LJ in Ratford v Northhaven District Council [1986] RA 137 (‘Ratford’) analysed what each party to a Business Rate complaint must show. Helpfully, Silber J in Patel v Camden LBC [2013] EWHC 2459 (‘Patel’) summarized this, at paragraph 45: 

‘(a) the billing authority will be justified in applying for a summons against a person if it shows reasonable grounds for believing that he is or may be in rateable occupation of the premises; 

(b) if it decides to apply for a summons in such circumstances, its decision would be open to a judicial review when the person named could not have been reasonably regarded by the authority as a reasonable candidate for the role and position of rateable occupier; 

(c) subject to those first two principles, at the hearing of the summons, all the billing authority had to show in the first instance is that the rate in question has been duly made and published, second that it had been demanded from the respondent and third that it had not been paid; and 

(d) If these three requirements are satisfied, then the burden falls on the respondent to show sufficient cause as to why he is not liable.

Silber J in Patel, at paragraph 46, said:

‘The question whether the person is to be in occupation of a particular property will be peculiarly within his or her own knowledge. It seems probable the legislature would have contemplated the burden of proving a defence based on non-occupation would in the first instance fall on the respondent.’

[21]R. (on the application of Ebbnie) v Chief Constable of Surrey [2008] EWHC 166 (Admin) (‘Ebbnie’) involved cash detained by the police (reasonably). The police applied for forfeiture. There were (at least) 2 hearings in the Magistrates Court before the police, the public body, decided to withdraw the complaint. While the exact reason for the withdrawal was somewhat vague, it seemed that it was prompted by a police officer's discovery, after he telephoned the airline, that Ms Ebbnie had indeed been recorded as on the flight list of passengers arriving through Virgin Airways on the day on which she said she had arrived. The Magistrates Court was critical of the police, finding that the police ought to have withdrawn the complaint sooner. The Magistrates Court awarded the other party, Ms Ebbnie, her costs of paying counsel to attend those 2 hearings. It was Ms Ebbnie who appealed this, arguing that the costs order was insufficient, and that she should have received a costs order for all her legal costs, after the police ought to have withdrawn the complaint. Davis J held that ‘…the decision of the [Magistrates Court] is illogical on its face.’ (paragraph 11) and ‘…the reasoning simply cannot stand…it is in fact irrational on its face.’; he held that the matter ought to be remitted back to the Magistrates Court for make further findings to be made (paragraph 15).

[22]In R (on the application of Perinpanathan) v the City of the Westminster Magistrates' Court [2010] 1 WLR 1508 (‘Perinpanathan’), Stanley Burnton LJ in the Court of Appeal, implicitly commended focus being placed these Lord Bingham CJ’s City of Bradford Metropolitan District Council v Booth [2000] EWHC (Admin) 444 (‘Booth’) propositions, rather than the more straightforward question posed in paragraph 1 to Lord Bingham CJ’s judgment in Booth. At paragraph 1 of Booth, Lord Bingham CJ said:

The issue in this appeal by case stated is whether justices erred in the exercise of their discretion by awarding costs against a local authority on a successful complaint against a vehicle licensing decision of the local authority when the local authority had not, in making the decision appealed against, acted unreasonably or in bad faith’. 

Stanley Burnton LJ in Perinpanathan, at paragraph 42, directed focus on the more nuanced Booth propositions, rather than the above paragraph:

I would also comment that there may have been a tendency to focus more on Lord Bingham CJ's answer to the straightforward issue defined in para 1 of his judgment than to the more nuanced propositions set out underpara 23.’ 

[23]Stanley Burnton LJ in Perinpanathan distinguished Walker v Royal College of Veterinary Surgeons [2008] UKPC 20, a Privy Council case were costs were awarded on an appeal, against the regulator (Royal College) and in favour of the successful complainant, on the basis, at paragraph 39, that:

‘…this decision was concerned with the costs of a successful appeal, when different considerations may apply to those applicable at first instance.’

[24]Adding to paragraph 21, Hickinbottom J in Chief Constable of Warwickshire v MT
 (2015) 179 J.P. 454; [2015] EWHC 2303 (Admin) said, at paragraph 22:

Other cases to which I have been referred, including R (Cambridge City Council) v Alex Nestling Limited [2006] EWHC 1374 (Admin) and Chief Constable of Warwickshire Police v Young [2014] EWHC 4213 (Admin), have endorsed and followed these principles, without substantively adding to them.