Supperstone J in High Court CO/829/2017 R v Guildford Crown Court following Simmonds v Guildford Borough Council - Judgement
| IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION THE ADMINISTRATIVE COURT [2017] EWHC 3002 (Admin) |
CO/829/2017
|
B E T W E E N :
THE QUEEN ON THE APPLICATION OF SIMMONDSClaimant
CROWN COURT AT GUILDFORDDefendant
GUILDFORD BOROUGH COUNCILInterested Party
THE CLAIMANT appeared in person, assisted by Mr Mark Rostron (Litigation Friend).
THE DEFENDANT was not present and not represented.
MR P KOLVIN QC (instructed by Legal Department, Guildford Borough Council) appeared on behalf of the Interested Party.
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MR JUSTICE SUPPERSTONE:
1 This is a renewed application for permission to apply for judicial review of the decision made by Mr Recorder Malins at Guildford Crown Court on 15th December 2016 refusing to state a case.
2 The claimant is a taxi driver. Guildford Borough Council, the interested party, is the taxi licensing authority for Guildford. Section 47(1) of the Local Government (Miscellaneous Provisions) Act 1976 provides:
"A district council may attach to the grant of a licence of a hackney carriage under the Act of 1847 such conditions as the district council may consider reasonably necessary."
3 Section 47(2) gives a taxi licensing authority a specific discretion to attach livery conditions.
4 On 9th December 2015 the council adopted a policy that all taxis licensed for the first time after that date had to be liveried. The purpose of such conditions is to make licensed vehicles readily recognised as such, primarily to protect members of the public by giving them assurance that they are stepping inside a licensed vehicle. The claimant had his vehicle liveried and was granted a taxi licence. However he did not like the policy and contended that it should not be applied to him.
5 A person aggrieved by a condition attached to a hackney carriage licence may appeal to the Magistrates' Court under s.47(3) of the Act. A further right of appeal to the Crown Court is conferred by s.77(1) of the Act.
6 The claimant appealed to the Magistrates' Court. On 5th July 2016 the Magistrates' Court dismissed the appeal. On 4th November 2016 the defendant, Guildford Crown Court, dismissed his further appeal following a hearing before Mr Recorder Malins and two justices. On 11th May 2017 Sir Wyn Williams refused the claimant permission to apply for judicial review of the learned recorder's refusal on 15th December 2016 to state a case.
7 At an oral renewal permission hearing on 14th June 2017 Ouseley J struck out five of the claimant's seven grounds of challenge but permitted him to provide further particulars of the two remaining grounds and directed that the question of whether permission should be granted should then be determined on the papers. On 1st July 2017 the claimant filed further particulars pursuant to the order of Ouseley J. On 1st August 2017 he filed a document entitled "Further Information for the High Court". On 28th September 2017 Dove J refused permission.
8 The learned recorder (dismissing the appeal and refusing to state a case) and Sir Wyn Williams and Dove J (refusing permission) each made clear that any such challenge should be by way of judicial review of the decision of the council and not by way of appeal to the Crown Court. The claimant has applied for an extension of time in which to make this renewed application. He has explained why he did not make the application in time. I accept that he misunderstood the position and in the circumstances, bearing in mind that he is a litigant in person, I will extend time.
9 The claimant appears in person. He has filed a skeleton argument and a 16page notice of application for reconsideration setting out his case. Mr Mark Rostron has addressed me on his behalf, as he did before Ouseley J. Mr Simmonds contends that it is not necessary for his taxi to be liveried for public protection purposes. In support of this submission he refers to his witness statement which refers to the costs that he has incurred by reason of the imposition of the condition and how his taxi has been mistaken for a Guildford Council car. However, in essence, it seems to me that the claimant wishes to challenge the decision of the council to require taxis operating in the Guildford area to carry livery specified by the council. Indeed, the whole basis of the claimant's case continues to be a challenge to the adopted licensing policy of the council. The council is entitled to adopt a policy upon what it regards as “being reasonably necessary” to impose as a condition. It is not disputed that the policy has been correctly applied in a decision upon a licence.
10 Mr Rostron relies on a number of authorities to which he has referred, including Stratford Taxis and Red Cab. However those authorities do no more than establish that when a policy is in play there is a right of appeal. However in order to make out that appeal where there is a policy the appellant must show why he is to be treated differently. The claimant has not advanced any reason as to why he should be treated differently from the rest of the licensed taxi drivers in Guildford who are subject to the policy. That being so, his continued reliance on s.47 of the 1976 Act is misplaced.
11 In R (On Application of Westminster City Council) v Middlesex Crown Court [2002] EWHC 1104 Admin, Scott Baker J (para.21) considered the question as to how a Crown Court (or a Magistrates' Court) should approach an appeal where the council has a policy. He stated:
"21 ..... In my judgment it must accept the policy and apply it as if it was standing in the shoes of the council considering the application. Neither the Magistrates' Court nor the Crown Court is the right place to challenge the policy. The remedy, if it is alleged that a policy has been unlawfully established, is an application to the Administrative Court for judicial review."
12 I repeat that I quite understand that Mr Simmonds contends that the policy should not be applied to him, and Mr Rostron has emphasised that he is not challenging the policy. But in circumstances where the appellant has not shown that there is any difference between his position and that of anyone else's position it seems to me that there is plainly a challenge to the policy.
13 I agree with Dove J that there is nothing in the language of s.47 of the 1976 Act which would justify a different approach. Further, as he observes, the claimant's approach would entail that such a policy would forever be open to debate in any appeal upon a licence. In addition to being a surprising outcome, it would have the effect of sidestepping the strict timescales in bringing judicial review.
14 For these reasons I consider that there is no proper basis upon which a case could be stated. Accordingly, permission is refused.
MR JUSTICE SUPPERSTONE: Mr Rostron, can I thank you very much for the way you presented your submissions.
LITIGATION FRIEND: Thank you
. MR JUSTICE SUPPERSTONE: I appreciate that the result is not one that Mr Simmonds would have hoped for
. LITIGATION FRIEND: Yes.
MR KOLVIN: I have set out an application for costs at para.5 of the skeleton argument in accordance with the Mount Cook principles. They are there to be read. I do not want to take up any more of the court's time. The main point is that this has been groundhog day.
MR JUSTICE SUPPERSTONE: The costs that you would be entitled to on the Mount Cook principle would be the costs of settling the grounds.
MR KOLVIN: Dove J has already ordered the costs in relation to settling the response to the grounds of claim. On Mount Cook principles I am also applying for costs of the hearing today. The Mount Cook principles set out a number of bases upon which such an application could be made. We only need to demonstrate one of the bases is true.
MR JUSTICE SUPPERSTONE: Which basis do you say?
MR KOLVIN: The claimant has persisted in a claim after having been alerted to the facts and/or the law demonstrating the hopelessness of the position. We just say this has been gone through by Mr Recorder Malins on two occasions, Sir Wyn Williams and Dove J. Ouseley J also effectively told Mr Rostron that it was down to whether there could be an individual exception to the policy.
MR JUSTICE SUPPERSTONE: Mr Kolvin, I am grateful for your assistance today and your short skeleton argument but you appear for the interested party.
MR KOLVIN: I do.
MR JUSTICE SUPPERSTONE: It was not necessary for you to attend. You chose to attend.
MR KOLVIN: We did choose to attend. It is an important policy for Guildford Borough Council.
MR JUSTICE SUPPERSTONE: I understand.
MR KOLVIN: I have made my application.
MR JUSTICE SUPPERSTONE: Mr Rostron, I do not think I need to trouble you. I will not make an order for costs against Mr Simmonds.
LITIGATION FRIEND: Thank you, sir. May I add one thing further?
MR JUSTICE SUPPERSTONE: Yes, certainly.
LITIGATION FRIEND: As you rightly surmise, Mr Simmonds is disappointed by the decision today. He would like to appeal that to the Court of Appeal. So that being the case, could we have your permission to do that?
MR JUSTICE SUPPERSTONE: Mr Simmonds is perfectly entitled to apply for permission to go to the Court of Appeal. I do not think it is a matter of whether I give permission or not, but in any event I will proceed on the basis that an application is being made by you to me for permission.
I refuse permission on the basis that I consider there are no grounds for taking this matter further and this point is not arguable. On that basis I refuse permission. Mr Rostron, Mr Simmonds still has the right to go to the Court of Appeal and apply to the Court of Appeal for permission.
Mr Kolvin, is there anything you wish to add to that?
MR KOLVIN: No.
MR JUSTICE SUPPERSTONE: Mr Rostron, I just say this. It is not for me to give any advice, but there are strict time limits for the application to the Court of Appeal. It is important that Mr Simmonds abides by those time limits.
LITIGATION FRIEND: I am much obliged to you, sir.
This transcript has been approved by the Judge.
