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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 >> Akin v Stratford Magistrates Court [2014] EWHC 4633 (Admin) (28 November 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/4633.html Cite as: [2014] WLR(D) 518, [2015] LLR 397, [2015] 1 WLR 4829, [2014] EWHC 4633 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		28 November 2014

LORD JUSTICE BEATSON: This application for judicial review is brought by the claimant, Yasar Akin, trading as Efes Snooker Club on the Stoke Newington Road. He challenges the decision of District Judge (Magistrates' Courts) Radway dated 7 August 2013, the District Judge dismissed an appeal by Mr Akin on procedural grounds against the revocation on 5 February 2013 by Hackney London Borough Council's licensing sub-committee of his premises licence.

The matter had come before the licensing sub-committee as a result of a notice dated 28 November 2012, by an officer of the Metropolitan Police, pursuant to Section 51 of the Licensing Act 2003 ("the 2003 Act") seeking a review of the premises licence.

Mr Akin raised two procedural grounds in his appeal to the Stratford magistrates. The first, that there were two (rather than three) councillors present at the meeting of the licensing sub-committee has not been pursued in this application, after its dismissal by the District Judge. The second concerned regulation 39 of the Licensing Act 2003 Premises Licences, and Club Premises Certificate's Regulations 2005, statutory instrument 2005 number 42, which I will refer to as the "2005 regulations".

This provided that:

"39.[...] all notices referred to in regulation 38 [which I interpose is the notice requiring the advertisement of a review application such as this] shall state —

"(a)the address of the premises about which an application for a review has been made.

"(b)the dates between which interested parties and responsible authorities may make representations to the relevant licensing authority.

"(c)the grounds of the application for review.

"(d)the postal address and, where relevant, the worldwide web address where the register of the relevant licensing authority is kept and where and when the grounds for the review may be inspected;

"And

"(e)that it is an offence knowingly or recklessly to make a false statement in connection with an application and the maximum fine for which a person is liable on summary conviction for the offence.

This case is concerned with (c), the grounds of the application for review. It was submitted on behalf of Mr Akin that the licensing authority's notice advertising that there was to be a review was invalid because it did not contain the grounds of the application and thus did not comply with the requirements of regulation 39.

The District Judge rejected that submission and held that the notice was valid although he also decided that it did not state the grounds. He did so by applying the decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte Jeyeanthan [2000] 1 WLR 345.

In that case, which is the basis of the modern approach in public law to the question of non-compliance with the procedural requirements in statutory and subordinate legislation, Lord Woolf stated at 362:

" I suggest that the right approach is to regard the question of whether a requirement is directory or mandatory as only at most a first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test: The questions which are likely to arise are as follows:

(a) Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.)

(b) Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver.

(c) If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (The consequences question.)

Which questions arise will depend upon the facts of the case and the nature of the particular requirement. The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependant on dividing requirements into mandatory ones, which oust jurisdiction, or directory, which do not. If the result of non-compliance goes to jurisdiction it will be said jurisdiction cannot be conferred where it does not otherwise exist by consent or waiver."

That case concerned immigration. Lord Woolf also said that the issue before the court in that case had implications for the failure to observe procedural requirements outside the field of immigration and made further comments about the distinction between a mandatory requirement and a directory one. Lord Woolf said:

" If [the requirement] is categorised as directory it is usually assumed it can be safely ignored. If it is categorised as mandatory then it is usually assumed the defect cannot be remedied and has the effect of rendering subsequent events dependent on the requirement a nullity or void or as being made without jurisdiction and of no effect."

He also stated that the position was more complex than he had put it in that statement and that the mandatory directory approach:

"Distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance."

He stated that that had to be assessed:

"On a consideration of the language of the legislation against the factual circumstances of the non-compliance."

In a majority of cases he considered that it provides limited, if any, assistance to enquire whether a requirement is mandatory or directory. That, then, is the Jeyeanthan approach.

The first ground of challenge is that, for reasons which I will summarise below, the Jeyeanthan approach is not applicable to the licensing context because the 2003 Act and the regulations made under it constitute a statutory code for dealing with the effects of, for the requirements and the consequences of non-compliance with those requirements.

The second ground of challenge is that, if the Jeyeanthan approach is applicable, in the circumstances of this case it was misapplied. That, it was argued, is because one of the requirements (indeed the first requirement) is substantial compliance and it could not be said in this case that there was any compliance with regulation 39(c), let alone substantial compliance.

These proceedings were lodged on 3 February 2014. Green J granted permission on 22 May, but stayed this case pending the application of an outcome of an appeal to the Court of Appeal, in R (D&D Bar Services Limited) v Romford Magistrates Court [2014] EWHC 344 (Admin).

The appeal in that case did not proceed so this case came forward. I shall deal with the decision of the Deputy High Court Judge in that case later in this judgment.

The factual background

The police applied for a review of Mr Akin's premises licence on 28 November 2012. The application for review stated that it related to three licensing objectives: the prevention of crime and disorder, public safety and the prevention of public nuisance. The application also set out in a box the grounds, ie the factual bases relied on for the submission that the licensing objectives were being contravened. The District Judge in his judgment summarised these as gang links to the premises; associated violent crime; weapons; acquisitive crime; habitual breaches of the premises licence conditions, and a management unable or unwilling to get to grips with the problems and sort them out. Essentially, those are the seven ways in which Mr Whale submitted those grounds this morning.

The licensing authority was obliged by regulation 39 to advertise the review by a notice. It used the standard form for this purpose. But in this case, the relevant box of the notice contains not the grounds of review in the application, or a summary of them (because the full grounds would probably not have fitted in them) but a recital of the three licensing objectives to which I have referred.

When the application came before the meeting of the licensing sub-committee on 5 February 2013, those representing Mr Akin applied for the dismissal of the application on the two grounds that were subsequently appealed: the deficiency of the notice and the advert, and because there were only two and not three councillors present. Both submissions were rejected. After consideration of the matter the sub-committee decided to revoke the premises licence. Mr Akin appealed to the Magistrates' Court.

Before turning to the way that the District Judge dealt with the deficiency of notice ground, and the criticism of it by Mr Whale, I interpose that after the District Judge dismissed the procedural grounds of appeal the appeal on the merits proceeded. On 12 December 2013, Deputy District Judge Miller set aside a decision to revoke the licence and substituted a premises licence on terms as to the permitted hours. Mr Whale informed me Mr Akin considers the terms make it an uneconomic proposition for him to run the business.

I return to the way the District Judge dealt with the deficiency of notice ground. Paraphrasing paragraph 11 of his very clear and structured decision, his essential conclusions were: first the notice did not comply with the requirements of paragraphs 8 and 11 of the 2005 regulations because it did not state the grounds for the review. Secondly, the approach in Jeyeanthan was to be adopted. This meant that the questions to be posed and answered were:

1) Whether there had been substantial compliance with the requirements, although not strict compliance.

2) Whether non-compliance was capable of being waived, and if so, whether it was.

3) If non-compliance was not capable of being waived or had not been waived what are the consequences of non-compliance.

The District Judge held that there was substantial compliance, that the failure to comply strictly had not and could not be waived, but that the failure did not invalidate the sub-committee's decision. This was because the purpose of the legislation was to give local people an opportunity to know what is going on and to be heard if they wished. The advertised notice set out the fact that there was to be a review by the licensing sub-committee. It stated where the grounds of review could be read and the period for which representations could be made, the licensing objectives on which representations had to be based, and the penal notice.

I interpose that there is no issue that the notice satisfied regulation 39 of the 2008 regulations in being placed:

"... at or near the site of the premises to which the application relates"

And:

"... at the main offices of the licensing authority in a central and conspicuous place."

There were three responses to the notice, one from a neighbour. Miss Lefevre this morning informed the court that the responses were all from objectors who supported the review of the licence.

The District Judge stated that no one had come forward to say that they had read the notice, and had it set out the missing grounds, then would have chosen to respond. Accordingly, he considered (see paragraphs 14 to 16) "the purpose of the legislation to have been achieved." He also stated "the prejudice to the appellant's case before the sub-committee was very little if indeed any at all" because "he was able to make enquiries of local people and users of his premises to see who would come forward to support his case."

I have referred to the two grounds and now turn to the first. It is that Jeyeanthan is inapplicable in this case, because the 2003 Act and the 2005 Regulations constitute a complete statutory code for cases such as this within what has been described as a radically changed licensing system introduced by the 2003 Act. Section 52 of the Act only applies where the licensing authority has complied with any requirement imposed on it under section 51.3(b), see section 52.1(c). One of those requirements is that the review application be advertised with a notice which, under regulation 39(c), "shall state ... the grounds of the application for review."

Mr Whale relied on the distinction between grounds for a review and licensing objectives which he stated was seen in section 51.4(a) of the 2003 Act. It was also seen in the regulations, and in paragraph 11.7 of the statutory guidance issued pursuant to section 182 of the 2003 Act.

Regarding the requirement that the notice state the grounds as one for which non-compliance invalidates the notice, was, Mr Whale submitted, supported by regulation 41 of the 2005 regulations which provides what he described as a very minor dispensation from procedural requirements. Regulation 41 states:

"A relevant licensing authority shall not reject any application or notice by reason only of the fact that it is given on a form provided otherwise than from the relevant licensing authority but which complies with the requirements of these regulations."

Mr Whale submitted that regulation 41 shows precisely the circumstances in which Parliament has specified that an apparent procedural irregularity as to the form used, as opposed to its content, will not be a ground for rejecting an application or a notice. He argued that Parliament has chosen not to include in that dispensation the failure to state the grounds in an advertised notice, and since the legislative framework of statute regulations is a code, the Jeyeanthan approach is inapplicable and cannot be used.

He also relied on the different approach taken under the Gambling Act 2005 and regulations made under it. In that context, there are provisions about the consequences of non-compliance, see, for example, section 162(c) of the Act, regulation 14.6 of SI No. 459 of 2007 and regulation 7.6 of SI No. 2258 of 2007.

As to the second ground, Mr Whale submitted that the District Judge misapplied the Jeyeanthan approach for three reasons. First, the finding that there was substantial compliance was a finding without reasons. He did not develop the no reasons point in his oral submissions, but argued that this was a finding that was not open to the District Judge. It could not rationally be concluded that there was substantial compliance with regulation 39(c) or the regulations generally in circumstances where there are no grounds at all for the review application on the face of the advertised notice.

Secondly, he submitted that it was the intention of the legislature that any act done following a procedural failure of this kind should be invalid. He relied again on the terms of regulation 41, and submitted that what it stated was not a ground for rejecting an application and what it did not state therefore was a ground for rejection. Essentially, this is the same point in substance as he made when he argued the Jeyeanthan approach is inapplicable in this context. It is simply made at a different stage of the argument, as part of the operation of the Jeyeanthan approach.

Mr Whale argued that the District Judge wrongly elided the purpose of the legislation and the requirement of notice with the intention of the legislature as to the consequences of a procedural failure. The purpose was to give local people an opportunity to know what was going on and to be heard if they wish. That did not indicate what the consequences of a procedural failure were to be.

Thirdly, he submitted that the interests of justice and the real possibility of prejudice militated in favour of Mr Akin. There is now a witness statement before the court of Mr Alexander Brown, dated 13 January 2014, some 4 months after the District Judge's decision and some 2 months after the decision on the merits. Mr Brown states that he read the notice and had it set out the missing grounds, he would have chosen to respond in opposition to the review application.

Mr Whale submitted that this showed prejudice. The fact that, when the Magistrates' Court dealt with the merits of Mr Akin's appeal, it set aside the decision to revoke in part supports Mr Akin's case on the prejudice to him. Had grounds been in the notice, others might have come forward to support him and to object to the application to review the licence.

Mr Whale submitted that the case relied on by the District Judge TC Projects Ltd, R (on the application of) v Newcastle Justices & Ors [2006] EWHC 1018 (Admin) did not support the District Judge's approach because the procedural defect there was far less serious. The defect there was a notice specifying a period one day shorter than the 28 day statutory period. Gibbs J suggested at paragraph 35 that:

"It may well be that procedural defects more serious than this, particularly if they are deliberate or flagrant defects, will be significant enough to deprive the Tribunal in question of jurisdiction."

Mr Whale submitted that the defect in this case was flagrant and was more serious than in the TC Projects case and that the sub-committee was in this case deprived of jurisdiction.

He also invited the court to conclude that the decision of the Deputy High Court Judge in R (DD Bar Services Limited) v Romford Magistrates' Court [2014] EWHC 344 (Admin) was wrong. That was the case that I have mentioned. It concerned a notice which failed to specify the grounds for review, as this one does. Additionally, 3 lines were printed in a smaller font than that prescribed by the regulations. The Deputy High Court Judge held that this did not invalidate the advert and the notice.

Mr Whale submitted that the decision was wrong in applying the Jeyeanthan approach. He also submitted that it appeared that the decision may have been per incuriam. This was because there was no discussion in the short paragraphs containing the judge's analysis and conclusion of the implications of rule 41, or of the other requirements in the 2003 Act, in the regulations, or of the difference from the Gambling Act 2005 and its requirements.

He submitted additionally that the case was distinguishable because the District Judge in that case had found that the defects were "minor irregularities" and nobody was misled or disadvantaged by them.

Mr Whale's written and oral submissions also sought to take comfort from the fact that in that the DD Bar Services case Court of Appeal had given permission to appeal, although the appeal did not proceed. I observe only that when granting permission, Longmore LJ stated that:

"The appeal is (just) arguable but the arguments are technical in the extreme."

I reject the submission that the Jeyeanthan approach to procedural irregularity does not apply to breaches of procedural requirements under the 2003 Act and the regulations made under it. The Court of Appeal in Jeyeanthan's case rejected the previous approach in which statutory requirements were classified a priori as either mandatory or directory and the classification provided the answer to questions of non-compliance. That approach was, in a sense, the "complete statutory code" approach which Mr Whale advances today. That approach was rejected by the Court of Appeal in Jeyeanthan and by the Administrative Court in TC Projects(supra) and other cases. The approach adopted in Jeyeanthan's case has, as Miss Lefevre submitted, been the standard public law approach to procedural irregularities since.

As to regulation 41, the fact that regulations subject to the negative resolution in Parliament made provision for a particular outcome in particular circumstances does not in my judgment mean the Jeyeanthan approach does not apply to determining the effect of a procedural irregularity where the legislature has left a gap as to the consequences of another procedural irregularity. Jeyeanthan provides, as I have stated, the modern approach for dealing with gaps about the effect of procedural irregularities in the statutory language about the effect of procedural irregularity. I have stated that Mr Whale's approach is in a sense a 'back to the future approach', a return to the approach rejected in Jeyeanthan. It is also inconsistent with the general modern approach to the consequences of non-compliance with procedural requirements in statutory regimes. That approach reflects the emphasis in modern approaches to statutory construction on the purposive approach. The approach for which Mr Whale argued would lead to a version of what in other contexts has been described as "tabulated formalism". It would mean that Parliament would have to try to anticipate every single consequence. It would leave the the courts with no way of dealing with a failure of anticipation by Parliament, other than by reverting to the old approach of classifying a requirement as directory. That would have the effect, as Lord Woolf stated in Jeyeanthan's case, that the requirement would largely be regarded as a voluntary requirement.

The Jeyeanthan approach requires analysis of the statutory intent of the legislation taken as a whole using the purposive approach to which I have referred. It has been applied to statutory requirements which appear mandatory in contexts other than that of immigration. See, for example, Westminster City Council v Mendoza [2001] EWCA Civ 216, a case concerned with the requirements of service of closure notices on those operating unlicensed sex establishments. That and other cases show that what is required is an assessment of the statutory intent of the legislation.

I do not consider that the District Judge erred in concluding that the statutory intent of the legislation taken as a whole is to provide an effective means of scrutiny by the licensing authority of the conduct of licensed premises. In that respect, this case is similar to R Clarke v Bristol City Council (2013) EWHC 4530 (Admin), in which regulation 38 of the 2005 regulations concerned with the requirement to advertise itself was considered.

The judge in that case held that regulation 38 did not:

"Form a wholly rigid condition precedent to a valid review hearing. Its purpose I find is to inform interested persons of the review and the intention to hold a review"

And:

"The intention of Parliament here is plainly to ensure that those who have an interest in premises have a chance to make representations. A defective notice will not always thwart any review. There are circumstances in which it might do so. For instance, if an interested party or owner of premises had no notice at all of the review. But the plain purpose here is to ensure that those within an interest in a review are heard. The purpose is publicity, consultation and the extension of a right to be heard."

Those passages are at paragraphs 20 and 21 of the judgment.

Finally, on ground 1, I reject Mr Whale's submission that the defect in this case was flagrant. There is an ambiguity in the word "flagrant." It was not deliberate non-compliance. It may have been total non-compliance on one view but it was not deliberate non-compliance. It is significant to observe that in Jeyeanthan the non-compliance with a mandatory procedure obligation was deliberate, so it was both flagrant and knowing. Here the language used (although the language of the licensing objectives) does seek to give some indication of what it is that concerned the police.

Mr Whale was correct to point to the distinction between licensing objectives and grounds but the examples he gave to support that distinction appeared in reality to be concerned with particularity. I do not in any way rest my conclusion on this basis, but I rhetorically ask: what is the difference in substance between stating that the review is sought because premises are used for criminal activities and the use of the words "prevention of crime and disorder"? Save that the latter replicates one of the licensing objectives and is less, but not much less, particularised there appears no difference of substance.

I turn to ground 2. I have also concluded that the District Judge did not err in his approach to the application of the Jeyeanthan approach. As to whether there was substantial compliance with the procedural requirements, the District Judge noted that the non-compliance was not with the whole of regulation 39, only with regulation 39(1)(c).

I have set out the other requirements that were in the notice. If one adopts a modern 'tick box' approach to the notice, there was compliance with four of the five requirements. That, of course, does not in itself mean there is substantial compliance, but the notice contained the relevant licensing objectives, and it was published appropriately. On Mr Whale's argument, one looks only at 39(c). On that argument, which looks only at the specific aspect of a regulation, which has not been complied with (here part of a single regulation) it would never be possible to find that there was substantial compliance with the procedural requirements. Even looking only at regulation 39, what the District Judge did and what in my judgment he was entitled to do was to conclude that there was substantial compliance.

I go further. I accept Miss Lefevre's submission that it was open to the judge to consider the requirements of regulations 38 and 39 as a whole. That is consistent with the purposive approach to the interpretation of such requirements and to the determination of what the legislature is getting at, even when the legislature does not spell it out. A finding of substantial compliance with regulation 39 in my judgment was plainly open to him.

As to the consequences question, there was no evidence of prejudice to Mr Akin before the District Judge, other than what he himself provided. It is only now that Mr Brown's statement is brought forward. The licensing authority had maintained before the District Judge that there was no prejudice and that the advertising process had been effective and had generated responses. The later evidence of Mr Brown itself is not something which puts the District Judge's decision in judicial review proceedings into question. It has been furnished far too late. I do not consider it to be admissible.

What Mr Whale is in effect submitting is that the possibility that there might be somebody who might have supported the application is enough to constitute prejudice. In all the circumstances of this case, where there were responses to the advertisement and the notice, I reject that submission. Moreover, if one was to have regard to Mr Brown's statement, as Miss Lefevre observed, it is clear from it that he was aware as a result of the notice itself that the police had applied for the premises to be reviewed, and of the three licensing objectives which were relevant. Despite that, he failed to seek to participate in the review process and has only come forward over a year afterwards. It is said that this was because he thought that the breaches might have been that people were smoking on the premises and that did not concern him. That would not fit into the licensing objectives in any event, but it is in my judgment an absurd argument.

As far as reliance on the partial success of the merits challenge to the decision is concerned in the hearing before Deputy District Judge, I do not consider that this does in fact support Mr Akin's case on prejudice.

I have concluded that there has been no prejudice to Mr Akin. The function of the requirements for advertisement of the 2005 regulations is to bring an application for review to the attention of those in the area of the premises. It is not to inform the claimant of the grounds on which the application for a review is made. The claimant was served properly with copies of the application which contained the grounds. He was able to participate fully in the review process. It appears that he may have done this through his solicitor. Members of the public who read the notice would or should have been fully aware of the availability and accessibility of further information about the application and of the particular licensing objectives which concerned the police.

Those reasons go further than what might be thought to be the proper role of a reviewing court, which is to ask whether a conclusion was open to the District Judge but I consider it important to say that, not only were the conclusions open to the District Judge but, as far as I can see, they were correct conclusions.

For these reasons, I would dismiss this application for judicial review.

MR JUSTICE SIMON: I agree. It seems to me that a court should be very cautious before characterising a statute and/or regulations made under it as a "complete code", such that Parliament must be taken to have intended to exclude well-established approaches to statutory interpretation of which the Jeyeanthan approach to procedural irregularity is one.

In any event, I agree that we were not concerned here with "a complete code" and that the Jeyeanthan approach properly yielded the conclusion reached by the District Judge.

MISS LEFEVRE: My Lord, I have an application for costs in the total sum of £11,435. Could I hand up two copies of the break down. (Handed) If I could just make two observations, please.

LORD JUSTICE BEATSON: Can I just ask -- I mean, they are here now. Your opponents managed to get theirs in, in time/

MISS LEFEVRE: I am sorry. I have no explanation as to why they were not in time.

LORD JUSTICE BEATSON: You want us to summarily assess them?

MISS LEFEVRE: Please, that is my submission.

LORD JUSTICE BEATSON: What do you say, Mr Whale?

MR WHALE: I accept the the principle of an award.

LORD JUSTICE BEATSON: You do not really want me to look at yours before I start looking at the figures here?

MR WHALE: No, not for the moment.

LORD JUSTICE BEATSON: I will not do that, then.

MR WHALE: No, thank you. Not to the principle. We are agreed 42 days for payment, if you would make an order, please, on that basis. There is though, I am afraid, an issue as to the quantum. Could I make one or two submissions after that?

LORD JUSTICE BEATSON: You can, bearing in mind, I do not stop your submissions -- but I think those behind you, they have to understand this, I am sure they have been advised of it -- this is a very rough and ready process.

MR WHALE: Indeed, as will be my points.

LORD JUSTICE BEATSON: No, no, no, I am sure your submissions will be very polished, but they have to understand we have to look at this and deal with it on paper. We are not cost judges, but they should also know that going to a cost judge will cost a lot more money.

MR WHALE: Indeed. Absolutely right, indeed. So it is broken down into two parts. Firstly, there are fees associated with my learned friend's representation and advice. There is no issue as to that, but there is an issue as to the second head which is the council's solicitor's fees; and I say again, as I said, I think, in the course of the hearing, I do not personalise matters. The sum claimed under that head is £6,800. That is in fact £600 more, more than the fees associated with my own instructing solicitor's firm, leaving aside counsel's fees.

MR JUSTICE SIMON: You cannot argue with the hourly charge, so you are focusing on the 80 hours, are you?

MR WHALE: Indeed. My Lord has got the point, that amounts to, well -- being rough and ready, some 4 entire days' worth of work, 24 hours a day, a shade under, maybe.

LORD JUSTICE BEATSON: How many hours? Obviously, you were the claimant but how many hours -- I am looking at how many hours are there that are on your side? It just helps to get a sense of the proportionality of it all.

MR WHALE: Indeed.

LORD JUSTICE BEATSON: I think the first, under "attendance", where it says "6.3.32", are those hours?

MR WHALE: Yes, they are. Sorry, 6 and 3 are.

LORD JUSTICE BEATSON: What about 32 under "letters out", is that numbers of letters?

MR WHALE: Letters or E-mails, yes. So by my reckoning, we have got 9 so far. Pass over the telephone, pass over letters out.

LORD JUSTICE BEATSON: They take time, do they not, to write letters? I mean, if they do not, then --

MR WHALE: -- doing the best I can, it comes to 16 and a half hours.

LORD JUSTICE BEATSON: All right. Well, essentially, what you say is for a case like this 80 hours is far too much.

MR WHALE: Far too much. As I say, it is higher than my own solicitor's fees.

LORD JUSTICE BEATSON: Yes. Again, I mean --

MR WHALE: -- we have driven the claim, obviously --

LORD JUSTICE BEATSON: -- it may be that it is higher because their counsel's fee is less than your counsel's fee. It is the question of the division of labour of the team.

MR WHALE: Well the short point is 80 hours, 4 days, far too much.

LORD JUSTICE BEATSON: All right.

MR WHALE: I have in mind £6,000 as the bottom line figure, 42 days.

LORD JUSTICE BEATSON: All right, 42 days to pay.

MR WHALE: Yes, please.

LORD JUSTICE BEATSON: All right. Miss Lefevre, any observations?

MISS LEFEVRE: These are the costs that are actually incurred and I am entitled to seek the full recovery.

LORD JUSTICE BEATSON: Yes.

MISS LEFEVRE: I do seek the full recovery, indeed in the break down you can see under the sum: "in-house solicitor's fees, £680" was capped at 8 hours, up until --

LORD JUSTICE BEATSON: At 8 hours?

MISS LEFEVRE: Initially at 8 hours, to encompass acknowledgment of service and sum of summary grounds, the remaining 72 hours reflecting the balance, 6180 is the time of thereafter.

LORD JUSTICE BEATSON: So, it is 72 hours since permission was given?

MISS LEFEVRE: No, since acknowledgment of service and summary grounds were lodged.

MR JUSTICE SIMON: I am sure we do not want to go through the detail, but what is "chasing Redbridge and their counsel"?

MISS LEFEVRE: That relates to the D and D case(supra) which was a Redbridge case.

LORD JUSTICE BEATSON: Tell me, does Hackney observe the disability discrimination regulations?

MISS LEFEVRE: I would presume so, my Lord.

LORD JUSTICE BEATSON: For an old man like me, this is impossible (indicates sheet).

MISS LEFEVRE: I take that point, my Lord.

LORD JUSTICE BEATSON: Anyway, my Lord clearly has managed that. So, perhaps anything else you want to say and we will retire to consider it?

MISS LEFEVRE: No, my Lord, those are my points.

LORD JUSTICE BEATSON: Yes, all right.

(The court adjourned)

LORD JUSTICE BEATSON: Miss Lefevre, we need to clarify. The total in-house solicitor fees are 6,800.

MISS LEFEVRE: My Lord, yes.

LORD JUSTICE BEATSON: The £680 is what?

MISS LEFEVRE: Is just a part of that 6,800.

LORD JUSTICE BEATSON: All right, so what the dispute is between you is about the 6,800 figure?

MISS LEFEVRE: Yes.

LORD JUSTICE BEATSON: Is that right?

MR WHALE: It is right.

LORD JUSTICE BEATSON: When you say 6,000, do you mean 6,000 in total, ie substitute for 11,435, 6,000?

MR WHALE: Correct.

LORD JUSTICE BEATSON: So that, you say it should be just under £1,500 for --

MR WHALE: -- correct.

LORD JUSTICE BEATSON: All right. Well, with that clarification, for which we are grateful, could I just ask Miss Lefevre -- you are agreed on the 42 days?

MISS LEFEVRE: Yes.

LORD JUSTICE BEATSON: Could I then say that the Borough is entitled to its costs. Having looked at the figures submitted and heard the submissions, we consider that the figure of £6,800 is too large. We would substitute for it a figure of £3,400 which should be added to the figure of £4,635, to produce the figure of £8,000. I think that my arithmetic is no good --

MR JUSTICE SIMON: -- and £35.00.

LORD JUSTICE BEATSON: -- and £35.00, if my arithmetic is correct.

MR JUSTICE SIMON: Yes, it is, or at least it is the same as mine.

LORD JUSTICE BEATSON: It may be incorrect, my Lord says, but it is the same as his.

MR WHALE: I think my Lord was proposing to halve the 6,834. We take 34 off 11,435, I think that does, indeed, come to 8,035.

LORD JUSTICE BEATSON: Yes, it is rather like the great Tom Lehrer song about how you learned maths. We get to the same answer by two difference routes.

MR WHALE: You and I have the same answer, whether it is the right answer, I do not know but it is the same.

LORD JUSTICE BEATSON: Three of us now have the answer. As Miss Lefevre has to pay for this, they are going to get it. Do you agree with the figure?

MISS LEFEVRE: Yes, I do.

LORD JUSTICE BEATSON: All right, well, thank you for all your assistance in this case.

MR WHALE: My Lord, might I just detain your Lordship one or two more moments more?

LORD JUSTICE BEATSON: You may.

MR WHALE: It may be me, I thought I heard one or two references to the "Gaming Act 2005" and for the transcript, if I am right, it is the "Gambling Act 2005".

LORD JUSTICE BEATSON: It is the Gambling Act, you probably did, and you may have also heard one or two references to "rule 38" when it should be "rule 39".

MR WHALE: Possibly "regulation 39" -- if I may?

LORD JUSTICE BEATSON: "Regulation". Yes, well, I shall grapple with these points.

MR WHALE: My last point is the Court of Appeal has given permission to appeal once on this point.

LORD JUSTICE BEATSON: Yes.

MR WHALE: Both on the approach point and the Ground 2 point.

LORD JUSTICE BEATSON: Yes.

MR WHALE: I would ask for that form.

LORD JUSTICE BEATSON: Yes.

(A short pause)

LORD JUSTICE BEATSON: We refuse permission. We consider that the question of whether the Jeyeanthan approach should not apply to a major area of public law and regulation, if the Court of Appeal is to consider it, it should be a question for the Court of Appeal.

We do not think the first limb of the test in CPR part 52 is satisfied and we think that it should be for the Court of Appeal to decide what the second limb of the test is.

MR WHALE: Very well. Thank you, my Lord.

LORD JUSTICE BEATSON: Finally, I would like to detain you. You will notice we do not have an associate. Could I ask the two of you to put your heads together and try to draft an agreed order.

If you cannot agree it, then send me the two alternative versions and my Lord and I will settle it. I do not anticipate it will be difficult, thank you.