Supperstone J in High Court CO/829/2017 R v Guildford Crown Court following Simmonds v Guildford Borough Council - Transcript of proceedings
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
CO/829/2017
Royal Courts of Justice
Thursday, 26th October 2017
Before:
MR JUSTICE SUPPERSTONE
B E T W E E N :
THE QUEEN
ON THE APPLICATION OF
SIMMONDSClaimant
- and -
CROWN COURT AT GUILDFORDDefendant
- and -
GUILDFORD BOROUGH COUNCILInterested Party
__________
THE CLAIMANT appeared in Person (assisted by Mr Mark Rostron, Litigation Friend).
THE DEFENDANT did not attend and was not represented.
MR P KOLVIN QC (instructed by Legal Department, Guildford Borough Council) appeared on behalf of the Interested Party.
_________
P R O C E E D I N G S
Thursday, 26th October, 2017
(10.30 a.m.)
MR JUSTICE SUPPERSTONE: Mr Simmonds, do take a seat. (To Litigation Friend) It is Mr Rostron, is it?
LITIGATION FRIEND: Yes, sir. That is correct.
MR JUSTICE SUPPERSTONE: Mr Simmonds, Mr Rostron spoke on your behalf before Ouseley J I think on the last occasion you appeared in June.
THE CLAIMANT: Yes.
MR JUSTICE SUPPERSTONE: You would like him to speak on your behalf today, would you?
THE CLAIMANT: Yes, please.
MR JUSTICE SUPPERSTONE: As he did so previously, I will allow him to do so.
THE CLAIMANT: Thank you very much.
MR JUSTICE SUPPERSTONE: There is just one preliminary matter. You acknowledge that you need an extension of time in which to make this renewed oral application. I have read your explanation as to why the application was not made in time, and in the circumstances I will extend time. So we can go to the meat of it.
THE CLAIMANT: Thank you.
MR JUSTICE SUPPERSTONE: Mr Rostron, I have read the various documents that have been filed on behalf of Mr Simmonds. As I understand it, you have had a hand in settling those documents. Is that right?
LITIGATION FRIEND: Yes.
MR JUSTICE SUPPERSTONE: Stand or sit as you wish, whatever is more comfortable.
LITIGATION FRIEND: I will stand, sir.
MR JUSTICE SUPPERSTONE: As I understand it, you see this rather as a test case. Is that right or what?
LITIGATION FRIEND: It is a test case for Guildford taxi drivers but it is also a test case for the law in general, sir, because as far as I am aware there has been no High Court decided case on s.47 of the Local Government (Miscellaneous Provisions) Act with regard to challenging licence conditions, the hackney carriage licence conditions. So that is one of the reasons why there has been a difficulty in this case so far because the cases that have been referred to probably on both sides have not been to do with the actual point of the matter. It has been to do with similar circumstances under different Acts of Parliament.
MR JUSTICE SUPPERSTONE: Yes. The real issue, as I am sure you appreciate, is a preliminary issue; it is a jurisdictional issue as to whether you are going by the right route, whether you are or were originally in the right court. Am I also right in thinking that you are challenging the policy generally
LITIGATION FRIEND: Sorry?
MR JUSTICE SUPPERSTONE: It is a challenge to the policy imposing the condition.
LITIGATION FRIEND: I'm afraid that is not what Mr Simmonds is saying. Mr Simmonds has a taxi which was liveried as a condition of his licence, and he objected to the Magistrates' Court under s.47 of the Local Government (Miscellaneous Provisions) Act within 21 days of that condition being applied to his licence. So that is the route we are going down, sir, and that doesn't involve any challenge to the policy directly. It merely involves Mr Simmonds's right under the Act of Parliament.
MR JUSTICE SUPPERSTONE: The condition was imposed because of the policy.
LITIGATION FRIEND: Yes.
MR JUSTICE SUPPERSTONE: The condition has been imposed in relation to all licensed taxi drivers in Guildford. Is that not right?
LITIGATION FRIEND: Yes, that is correct. But the fact of the matter is that it is open to local authorities to set policies as they wish. That doesn't prevent an aggrieved person asserting his right under s.47 of the Local Government (Miscellaneous Provisions) Act. It may well be that there are special circumstances which apply to a driver (in this Mr Simmonds) which mean that the condition which is imposed on his licence is not reasonably necessary, and that is the test which the Act sets out for whether the licensing condition is reasonable.
MR JUSTICE SUPPERSTONE: How does the position of Mr Simmonds differ from the position of all other licensed taxi drivers in Guildford? What is the distinguishing feature in Mr Simmonds's case?
LITIGATION FRIEND: With respect, Mr Simmonds is not here to speak for all the other drivers.
MR JUSTICE SUPPERSTONE: No. Of course he is not. I am only asking you about Mr Simmonds's case. Why does Mr Simmonds say that he is different?
LITIGATION FRIEND: Mr Simmonds doesn't say he is different. Mr Simmonds says he is aggrieved about the licence condition on his taxi. He doesn't have to show that he is different. All he has to show that he is aggrieved.
MR JUSTICE SUPPERSTONE: It would be strange position, would it not, if a policy is made, it comes into operation, it applies to very many people and Mr Simmonds or anyone else can then say it was not reasonably necessary at any point in time even months or years after the policy has come into force?
LITIGATION FRIEND: With respect, I beg to differ. In the bundle which has been provided for the court there are three Court of Appeal cases which state particularly that in circumstances where councils have a policy, and most of those other cases one of those cases is to do with taxi licences but the other ones are to do with the Licensing Act 2003 cases. But what they all say is that people have a right to object to a licence condition if that right is given to them by the Act of Parliament and that is independent of what the policy was. In fact, what the Court of Appeal judges say is that the route for challenging those licence conditions is first by the statutory route and that should be taken before any consideration is given to a judicial review approach to it. So those are three Court of Appeal decisions which I believe are in Mr Simmonds's papers.
MR JUSTICE SUPPERSTONE: Yes, which you have referred to in the skeleton arguments and in the documentation.
LITIGATION FRIEND: Yes.
MR JUSTICE SUPPERSTONE: I have asked you a few questions. Let me let you develop your argument.
LITIGATION FRIEND: Just one thing additional which has been pointed out to me by Mr Simmonds, and has reminded me, which was raised by the counsel for Guildford Borough Council: in the sequence of events they have actually left out one thing which was that after the Magistrates' Court hearings the first appeal that Mr Simmonds made was to the Crown Court and there was a hearing which is not shown in Mr Kolvin's list which was on 29th September 2016 before Judge Black in the Guildford Crown Court.
MR JUSTICE SUPPERSTONE: Yes. I have seen reference to that. I think we have a transcript of that here.
LITIGATION FRIEND: It is but it is not in the list, not in the chronology.
MR JUSTICE SUPPERSTONE: That was essentially a preliminary hearing which preceded the substantive hearing before the Recorder.
LITIGATION FRIEND: With respect, referring to the last page of the transcript and just reminding myself, what Judge Black decided on that date was that Mr Simmonds did have a right of appeal and he actually set a date for hearing which was 4th November and he gave instructions for the preparation of the paperwork for a hearing. So, with respect, the Crown Court judge has already decided that Mr Simmonds does have a right of appeal.
MR JUSTICE SUPPERSTONE: No. He had a right of appeal from the decision of the Magistrates' Court to the Crown Court.
LITIGATION FRIEND: Yes.
MR JUSTICE SUPPERSTONE: He then had that appeal before the learned recorder in the Crown Court.
LITIGATION FRIEND: With respect, he didn't. What actually happened is I know it's a tricky thing Judge Black said that Mr Simmonds has a right to have a hearing of his grievances and he set the date for 4th November and he asked for us to produce all the documents and produce witnesses. But when it came to the hearing on 4th November or supposed hearing on 4th November a different judge heard the case.
MR JUSTICE SUPPERSTONE: That often happens. One hears the case at one stage and then he may not be available or may not be assigned to the case and another judge hears the case. The point is that the appeal was heard in the Crown Court on 4th November. There was a full hearing before Mr Recorder Malins and two justices, was there not?
LITIGATION FRIEND: I believe it was circumstances actually different from how you describe them. What was Mr Recorder Malins did was went right back to the beginning and re decided a point that had already been decided by a judge. But Mr Recorder Malins said you have no right to a hearing at all and he never gave Mr Simmonds a hearing. So Mr Simmonds all the way through, all the Magistrates' Court hearings and all the Crown Court hearings, has never actually had these grievances heard. It seems to me that the hearing in front of Mr Recorder Malins was, in fact, a kind of reversal of Judge Black's decision because he says right at the beginning (Mr Recorder Malins says) I will try and find the
MR JUSTICE SUPPERSTONE: I appreciate you are challenging the decision of the Crown Court and in particular you are challenging the refusal by the Recorder to state a case. That is how this application has issued before this court. We have a transcript of the hearing before Mr Recorder Malins and we also have a one page judgment from him giving his reasons.
LITIGATION FRIEND: He didn't actually state his case, if I remember correctly. What he said was these are the reasons why he shouldn't state his case.
MR JUSTICE SUPPERSTONE: I quite understand that. That is why you are here. You are challenging his refusal to state a case.
LITIGATION FRIEND: Yes. I think the initial point is that I want to speak to because I believe what Mr Simmonds has to show today is we have an arguable case.
MR JUSTICE SUPPERSTONE: Yes.
LITIGATION FRIEND: We already had that argument with Judge Black in the Crown Court and he decided that we did have an arguable case and he set a date for the hearing of it.
MR JUSTICE SUPPERSTONE: If you want to refer me to any passage in the transcript then do so. Tell me what page number and which passage you want to refer me to.
LITIGATION FRIEND: Unfortunately, the pages are not numbered but it is actually on the last page of Judge Black's transcript at para.(b)
MR JUSTICE SUPPERSTONE: Let us turn that up. I just have a time 3.19 p.m. at letter B on the last page.
LITIGATION FRIEND: Perhaps I have the wrong page then in that case. The penultimate page, I beg your pardon.
MR JUSTICE SUPPERSTONE: Yes, para.(b): "Ok, I will fix it for 4th November, 10 o'clock."
LITIGATION FRIEND: Yes. At para.(f) Judge black says, "Everything you will rely on at the appeal has already been served on Mr Simmonds."
MR JUSTICE SUPPERSTONE: Yes. He said that to Mr Kolvin, yes. Then there was a hearing before the Recorder. For some reason or another it matters not Judge Black obviously could not hear the case. It came before another judge. Mr Rostron, I want to help you as much as I can. You only have a very short while on this application. I think it would assist you, and Mr Simmonds in particular, if you went to the substance of the case and the arguments.
LITIGATION FRIEND: By all means. On the substance of the actual application today, if I refer to the court's initial reasons for refusing the application
MR JUSTICE SUPPERSTONE: Yes. I have read those. Are you referring to Mr Justice Dove's reasons?
LITIGATION FRIEND: Mr Justice Dove, that is right. On p.4, the first point that he made, I believe, is that there is settled authority to the effect that where a licensing context, an authority, has adopted a policy that is accepted etc., etc..
"An appeal in respect of a licence based on the contention that the policy itself is not lawful ... would be found to fail."
That may be true but as said already Mr Simmonds's appeal is not against the policy of Guildford Borough Council, it is against the licence condition.
MR JUSTICE SUPPERSTONE: This is semantics, is it not, because the licence condition arises because of the implementation of the policy. The policy is that there should be a licence condition.
LITIGATION FRIEND: With respect, all licence conditions from local authorities arise from policy. That doesn't mean that the rights under an Act of Parliament are negated in their entirety. That would mean that no one ever had a right to challenge a licence condition.
MR JUSTICE SUPPERSTONE: You say Mr Simmonds is challenging the licence condition.
LITIGATION FRIEND: Yes.
MR JUSTICE SUPPERSTONE: What does he say about it?
LITIGATION FRIEND: What he says in his case having his taxi liveried in green is not reasonably necessary for the public safety. Further than that, that is the principal reason given for Guildford Borough Council apparently for liverying his taxi.
MR JUSTICE SUPPERSTONE: Yes.
LITIGATION FRIEND: They refer to events in Rotherham, that liverying the taxi in green would protect the citizens of Guildford from events similar to what happened in Rotherham. it happens that the taxis in Rotherham were already liveried when the unfortunate events
MR JUSTICE SUPPERSTONE: I do not think we need worry about Rotherham on this application.
LITIGATION FRIEND: But that is the reason that was given by Guildford Borough Council. What Mr Simmonds says is that it is not reasonably necessary in his case for the public safety in Guildford or for any other reason provided by the council.
MR JUSTICE SUPPERSTONE: What he is then doing and you highlight the point that I am making to you is he is taking issue with the council as to whether this policy is necessary or not.
LITIGATION FRIEND: With respect, there are three Court of Appeal cases where the judges have all said licensees can challenge licence conditions even when there are policies in place. So there are decided cases which support Mr Simmonds here.
MR JUSTICE SUPPERSTONE: Of course they can. It depends on the facts of the individual case. If someone is saying, for example, that they should be made an exception to the policy, that their case is different from the case of others covered by the policy, then most certainly the individual can challenge the condition that has been imposed on that individual. No one could dispute that.
LITIGATION FRIEND: With respect, the Act of Parliament what it says is quite simply any aggrieved person aggrieved by a licence condition has a right to appeal. It doesn't say anything about that the party doesn't have a right of appeal if there is a policy.
MR JUSTICE SUPPERSTONE: I have noted that what Mr Simmonds says is that it was not necessary for public protection purposes for the policy
LITIGATION FRIEND: No, with respect, it is not for the licence condition on his vehicle; that is what he is objecting to. It was not reasonably necessary for the public safety for a licence condition to be applied to his vehicle, and that he is aggrieved and he has a right of appeal under s.47 of the Local Government (Miscellaneous Provisions) Act.
MR JUSTICE SUPPERSTONE: Why does Mr Simmonds say that it was not necessary to be applied to his vehicle?
LITIGATION FRIEND: Because it is not necessary for the public safety. The public are no more safe getting into his vehicle when it is green than they are when it is not green.
MR JUSTICE SUPPERSTONE: Is there anything particular about Mr Simmonds or about his vehicle that leads Mr Simmonds to make that submission?
LITIGATION FRIEND: Mr Simmonds is stating his own case. With respect, the Act of Parliament doesn't require him to say that it is different from all the other vehicles in Guildford. What the Act of Parliament merely requires him to do is to show that he is aggrieved about the licence condition on his vehicle and, with respect, I think he has done that. There is no part of the Act of Parliament that says that he has to show that he is the only vehicle or he is an exception. There may be cases where those points have been at issue in other licensing applications. In this one the Act of Parliament is quite simple. He has that right regardless of what the other drivers do and regardless of what the policy is.
MR JUSTICE SUPPERSTONE: Is there any evidence before the court that you wish to refer to in support of that Mr Simmonds's contention that it is not necessary for the licence condition to be imposed on his vehicle?
LITIGATION FRIEND: Yes. There is quite a large bundle here, and I have to go back and refresh my memory. Mr Simmonds provided a witness statement (I am not sure that I can find it at the moment), it is p.68 of bundle D which was provided to the court.
MR JUSTICE SUPPERSTONE: Yes. I have that.
LITIGATION FRIEND: Mr Simmonds goes from p.68 to '9 about the damage that has been caused to him, the unnecessary cost, that the rack has sustained damage since it was fitted (that is at 255).
MR JUSTICE SUPPERSTONE: He says, "I've also had damage to the rack since it was fitted."
LITIGATION FRIEND: Yes, that's right.
MR JUSTICE SUPPERSTONE: "It cost me £20 to repair."
LITIGATION FRIEND: "The livery is not durable. People think that my car is a Guildford Borough Council vehicle and not a taxi," and he gives examples of that when he says that people wouldn't get in, people have approached his taxi and said, "You're working late for a council worker." It is because the colour of the livery is the same colour as Guildford Council's standard colours for their council so it appears that the taxis are actually Guildford Borough Council vehicles and not taxis. He says he can't do chauffeur work, he has lost regular customers now that the car is green. They believe it doesn't set a good example. He has lost earnings and he says that he believes that the colour green is the hardest to see if you are colour blind or have trouble with your sight. Those are the reasons why he didn't want to have livery on his car.
MR JUSTICE SUPPERSTONE: Those points apply to every licensed taxi driver who is subject to this condition, do they not?
LITIGATION FRIEND: That may be a matter for them.
MR JUSTICE SUPPERSTONE: No. It is not for them; it is a matter of common sense. The points Mr Simmonds makes, I follow the points. I am not taking issue with the points. That is not a concern of the court on this occasion. I am merely making the point that the points that Mr Simmonds makes are points which could be made by any licensed driver.
LITIGATION FRIEND: That may be true. With respect, there is a decided case, the Red Cab case which is put before you in the bundle, where Mr Justice Judge decided, and that was a case of judicial review but in passing Mr Justice Judge envisaged a situation where one licensee objected to the conditions on his vehicle and that had the effect of ultimately negating the council's policy because if those reasons applied to other licensees they could also go to the Magistrates Court and object.
This route and this set of circumstances has been foreseen and apparently approved in a High Court case already. The point you raise about whether it applies to everyone, it may well do and Mr Justice Judge refers to that. (I will see if I can find the actual case.) I think that was it, provided in the bundle which was provided for the original
MR JUSTICE SUPPERSTONE: I see reference to the case and I see what is said by Mr Simmonds about it in the skeleton argument. I do not have a bundle of authorities including that authority. So if you would like me to look at the report in that case I will certainly do so.
LITIGATION FRIEND: It is in the bundle of cases provided originally. (Let me see if I can find the actual page here.) In the bundle that was provided in response to Mr Justice Ouseley's order at p.27, Blackpool Borough Council v Red Cab (it is R v (Blackpool Borough Council) [1994] EWHC etc. (p.27). The transcript there is set out in full I beg your pardon, that is Durham City Council; p.18 the Blackpool case.
MR JUSTICE SUPPERSTONE: I have some authorities in amongst the bundle. Just let me see if I have that one. I have Stratford Taxis.
LITIGATION FRIEND: This is a different one.
MR JUSTICE SUPPERSTONE: I understand. I appreciate which case you are referring to. I am looking to see if I have a copy of it. Mr Kolvin, do you have a spare?
MR KOLVIN: No. I do not. What Mr Rostron filed in response to the order of Ouseley J was a bundle which starts at p.1 of 36. (I do not know if you have that.) At p.18 of 36 he has cut and pasted the judgment of Judge J. That is the only place in the bundle where you will find it. I think it is set out verbatim. I can hand up my copy.
MR JUSTICE SUPPERSTONE: That is not p.18 of 49.
MR KOLVIN: No. The 49 page bundle was the initial claim form. (Document passed).
MR JUSTICE SUPPERSTONE: If I look at that.
MR KOLVIN: Page 18.
MR JUSTICE SUPPERSTONE: I have found that. I can hand that back to you. Mr Rostron, I have it.
LITIGATION FRIEND: I am trying to find the passage that actually refers to that. On p.25 at paras.73.
MR JUSTICE SUPPERSTONE: I have read that.
LITIGATION FRIEND: And 74.
MR JUSTICE SUPPERSTONE: I have read that.
LITIGATION FRIEND: And 74. What that 73 and 74
MR JUSTICE SUPPERSTONE: Let me just read from 73 onwards. Give me a moment. (Pause) You say paras.73 to 76 support your submission, and it appears from this extract of transcript that the judge was saying that this is a matter that could be determined in the Magistrates' Court.
LITIGATION FRIEND: With respect, all the Court of Appeal cases that I refer to as well in the skeleton argument say exactly the same thing, not just that it is the route to go to for one case (I think it is the one with the Chief Constable in), the judge goes so far as to say that it is the duty of the applicant to go down the statutory appeal route.
If I can reinforce the point on part no. 73, the judge says quite clearly in this case this was a case about a licence condition that was applied to private hire drivers in Blackpool that they should not park on wasteland near the station because the taxi drivers thought that that would take trade away from them. So it applied to all the drivers in Blackpool, all the private hire drivers. Whilst at that time the council did not overtly specifically say there was a policy, it was the result of the licence condition was the result of a council decision made in a council meeting. What Justice Judge says is it is also right that the conditions are of importance to a large number of individuals. It is suggested that the case is left to the magistrates. There may be a series of appeals by a large number of individuals and a risk of inconsistent results, and the rest goes on. With respect, I think the judge was clearly envisaging the circumstances which you refer to now where Mr Simmonds's objection to his written case may well be raised by other drivers. There may well be other applications to the Magistrates' Court in Guildford. And then it is for the council to decide whether they want to maintain the policy in the face of challenges which are successful or not.
MR JUSTICE SUPPERSTONE: Is there any other authority you would like to refer me to?
LITIGATION FRIEND: On this particular point?
MR JUSTICE SUPPERSTONE: Yes, on this specific point.
LITIGATION FRIEND: On this point, no, because well, the only other point which is the Court of Appeal case on taxis is the 007 Taxis. First, all the three cases: the R v Chief Constable of Merseyside, the Hope and Glory, and the 007 Stratford Taxis were all decided in the Court of Appeal and they all give licensees the right even when there is a council policy to challenge conditions which are as a result of those council policies. With the exception of 007 Taxis (Stratford Taxis) the other two Court of Appeal cases were to do, I believe, with Licensing Act cases at the time. With the 007 case that was about taxis.
MR JUSTICE SUPPERSTONE: Yes. I am looking at that now, the judgment of Sir Anthony May.
LITIGATION FRIEND: In para.21, and I have underlined it here, this case was actually a judicial review case so again this was not a case which was brought via the statutory route. The reasons why it failed was because it failed according to judicial review standards. The judges in that case at the end of para.21 say (and I have highlighted the point) because there is a route of appeal which still may be exercised even though they lost the judicial review case which still may be exercised in individual cases upon grounds particular to the individual case against conditions attached to the licence.
MR JUSTICE SUPPERSTONE: I am looking at para.21 on p.8.
LITIGATION FRIEND: Page 10.
MR JUSTICE SUPPERSTONE: It may be in a different form.
LITIGATION FRIEND: That should be Red Cab case on p.8, not p.10. This is from the skeleton argument bundle.
MR JUSTICE SUPPERSTONE: Your skeleton argument. I am looking at the judgment itself in that case 007.
MR KOLVIN: I think Mr Rostron was referring you to (in the judgment) paras.12 and 13.
MR JUSTICE SUPPERSTONE: In that case?
MR KOLVIN: In that case.
MR JUSTICE SUPPERSTONE: Yes. That is the paragraph, para.13 you were referring to. (To litigation friend) That is essentially your case, is it not, or Mr Simmonds's case that he challenged it in the Magistrates' Court and he is not challenging the policy but he is entitled to challenge the condition as an aggrieved person?
LITIGATION FRIEND: He is. And just on another point in this para.13, this was a case where there was an adverse judgment to the driver who complained by judicial review. The judge in passing said that there is a route of appeal aside from the judicial review so this is a case where there is a taxi policy and where there has been a judicial review.
MR JUSTICE SUPPERSTONE: Let me put to you the case against you to give you an opportunity to deal with it. In a case known as R (on the Application of Westminster City Council) v Middlesex Crown Court [2002] EWHC 1104 Scott Baker J considered the question as to how a Crown Court of Magistrates' Court should approach an appeal where the council has a policy. What he said was this:
"In my judgment it must accept the policy an apply as if it was standing in the shoes of the council considering the application."
And then these words:
"Neither the Magistrates' Court nor the Crown Court is the right place to challenge the policy. The remedy that is alleged in the policy that has been lawfully established is an application to the Administrative Court for judicial review."
LITIGATION FRIEND: Yes.
MR JUSTICE SUPPERSTONE: That is what is said against you.
LITIGATION FRIEND: Yes.
MR JUSTICE SUPPERSTONE: Is there anything you would like to say about that?
LITIGATION FRIEND: Yes. And this is what was raised before Mr Justice Ouseley as well. In the skeleton argument that I have just provided to do with today's hearing on p.9 there is an excerpt from the
MR JUSTICE SUPPERSTONE: Forgive me. There are a few skeleton arguments that have been filed. Is it the two page skeleton argument, 23rd October?
LITIGATION FRIEND: It is 16 pages.
MR JUSTICE SUPPERSTONE: It is the 16 page one; I have that as well, yes.
LITIGATION FRIEND: Page 9 of that.
MR JUSTICE SUPPERSTONE: Page 9 of 16, Hope and Glory.
LITIGATION FRIEND: This was a case brought under the Licensing Act 2003 and it was a matter of a judicial review. The hearing that you refer to was a High Court hearing which was appealed and further heard in the Court of Appeal by a court of which Lord Justice Toulson was part. When Lord Justice Toulson decided that case on appeal he was deciding a matter that is not necessarily relevant to today's hearing. But in passing he went out of his way to overrule the judge who had made the initial finding which he referred to I forget the name of the judge in
MR JUSTICE SUPPERSTONE: The Westminster case.
LITIGATION FRIEND: The first judge, the High Court judge. The initial appeal, he overruled that judge. He said at I have my numbers here, no. 52 on p.9.
MR JUSTICE SUPPERSTONE: Yes. I assume that you are referring there to what Lord Justice Toulson said at para.52 of his judgment. I have just read that; it is in bold print and underlined.
LITIGATION FRIEND: Yes.
MR JUSTICE SUPPERSTONE:
"Judicial review may be a proper way of mounting a challenge to the decision of the licensing authority on a point of law. It is not however the only way. There is no such express limitation in the Act."
LITIGATION FRIEND: Whereas the High Court judge, if I remember what you actually said before, was saying that the only way to challenge this was by means of judicial review of the licensing authority's policy. Lord Justice Toulson goes out of his way to say that it is, in fact, the only way. Again, with respect, there are two other Court of Appeal cases, the 007 Taxis and the
MR JUSTICE SUPPERSTONE: Mr Rostron, you have put your point very clearly. You rely on these authorities. I am going to hear from Mr Kolvin in response and let you then have the final word.
LITIGATION FRIEND: Thank you.
MR KOLVIN: We have submitted a very short skeleton argument yesterday in response to what Mr Rostron put in on Monday (two sides plus a chronology).
MR JUSTICE SUPPERSTONE: Yes. Two pages and a chronology, yes.
MR KOLVIN: As my Lord has that, can I make two very brief points and that is all I want to say. The first point is this. Ouseley J gave the claimant a further bite of the cherry. He directed in terms that Mr Simmonds should set out the evidence he called before the magistrates and wished to call before the Crown Court. This was so the court could see the basis, if any, upon which Mr Simmonds was saying that he should be treated as an individual exception to the policy.
Mr Rostron, on behalf of Mr Simmonds, filed a 36 page response to that order. It was very full but what it did not do was to comply with that direction. That is because, as my Lord has just heard, Mr Simmonds was not suggesting any basis upon which he should be treated as an individual exception to this policy. He just wants to say, as he said to the Magistrates' Court and Crown Court before, that he just did not like the policy. He did not think it was a good policy. But as the courts have held on many occasions, not just in the Westminster case but also in the case cited by Scott Baker J in the Westminster case, the appellate courts have said that the appellate courts are not the place to challenge a duly adopted licensing policy. Otherwise, we get into a sort of chaos.
MR JUSTICE SUPPERSTONE: What do you say about the Court of Appeal cases that Mr Rostron has referred to? He suggests that a challenge to a policy can be made in the Magistrates' Court and does not have to be made by
MR KOLVIN: Certainly. I will deal with that, the second point.
MR JUSTICE SUPPERSTONE: Yes.
MR KOLVIN: His point essentially I think this is about the seventh time that we have had this debate is that s.47 gives you a right of appeal because you are aggrieved against the condition which has been applied. So that gets you to the door of the court. You are entitled to appeal. But it does not say a thing about how the court should deal with the appeal. How the court should deal with the appeal is in accordance with the judgment of Scott Baker J in Westminster which is to say that you apply the policy, stand in the shoes of the licensing authority for the purpose of applying the policy unless the appellant can show something by way of individual exception.
Mr Rostron says about that, yes, but look at what Judge J said in Red Cab and look at what the Court of Appeal said in Stratford. That involves a straightforward misreading of both of those cases, which I can deal with very shortly.
MR JUSTICE SUPPERSTONE: Would you do that.
MR KOLVIN: Yes. First, if you look at Stratford which you had open a moment ago which is at appendix C of our response to the grounds filed pursuant to the order of Ouseley J, paras.12 and 13, this was a judicial review against the policy. But at para.12 the President set out what the argument was which was essentially that the authority
MR JUSTICE SUPPERSTONE: None of my documents are well paginated.
MR KOLVIN: It should be tab if you are not tabbed.
MR JUSTICE SUPPERSTONE: I have no tabs.
MR KOLVIN: Appendix C.
MR JUSTICE SUPPERSTONE: I have no appendix C.
MR KOLVIN: It does not represent a triumph of pagination in this case.
MR JUSTICE SUPPERSTONE: I do not think so.
MR KOLVIN: The contention being made was that the respondents could not take a policy decision that all taxis should have wheelchair access because that would deprive the appellant and others possibly of an appeal under s.47. So the court is directly engaged with this question of what is the interface between this Act which gives a right of appeal and the ability of an authority common law, there is no provision in the Act common law to make a policy about how it would exercise its discretion to attach a condition.
What was being said was that the appellant should retain their right to make a merits challenge to the decision to attach a condition, the policy notwithstanding. So it is said, looking at Westminster, that just having this policy was contrary to the statutory framework and unlawful. That argument was dismissed by the Court of Appeal. The Court of Appeal said it is open to an authority to decide to adopt a policy
MR JUSTICE SUPPERSTONE: Where are you reading from?
MR KOLVIN: Para.13:
"It is open to an authority to decide to adopt a policy of this kind. Such a decision is open to challenge on orthodox judicial grounds."
(I interpolate, no challenge in this case.)
"There is no process of statutory construction or implication to the effect that because there is a route of appeal [the important word in parenthesis] which may still be exercised in individual cases upon grounds particular to the individual case against conditions attached to a licence. The adoption of a general policy relevant to the grant of a licence which may affect such an appeal is unlawful."
Simply put, of course there is a right of appeal but where there is a policy the burden on the appellant is to set out the grounds upon which they ought to be treated as an individual exceptional case. That is what Mr Simmonds has palpably failed to do at every single stage of this litigation even when directed to by Ouseley. So, that is the Stratford case.
Red Cabs was not a policy case at all. What happened in that case was that the council without any consultation or anything just peremptorily decided that it was going to attach conditions to licences. That was challenged by way of judicial review. Judge J was quite unimpressed with this peremptory decision to attach these conditions. None of the authorities regarding licensing policies were cited because it was not a policy case. But Judge J was not happy with this peremptory decision but said the correct means of challenging a licence condition is by way of appeal to the Magistrates' Court. All he was doing was saying that is what s.47 says. There is an alternative remedy which is to exercise the right to appeal to the Magistrates' Court. Judge J said nothing about what the result of that appeal should be. He just said you have come to the wrong court.
MR JUSTICE SUPPERSTONE: Yes.
MR KOLVIN: That is all that Red Cab is about. It does not carry on Mr Simmonds to his destination in any way, shape or form.
MR JUSTICE SUPPERSTONE: Mr Rostron?
LITIGATION FRIEND: Briefly to deal with the points Mr Kolvin has raised. First of all, at the direction of Mr Ouseley he did refer to the bundles A, B, C, D and E. There were bundles which had already been provided to the court which included his witness statement and the reasons why he did not want to have licence conditions on his vehicle. So although Mr Simmonds's objections were not included in the text of Mr Ouseley's documentation it had already been made, referred to in the bundles which already existed. That is the first point.
On the second point about the Stratford case, I beg to differ with Mr Kolvin. What the judge was saying in the Stratford case was just because a licence condition may be not reasonably necessary it doesn't mean that a council cannot adopt it as its policy. That is what he said. But what he went on to say was even they do adopt it as a policy, it is still a route for a licensee to appeal against a licence condition on his licence. So, in fact, it does support Mr Simmonds. I think it depends which was you read that particular section, but I believe it does support Mr Simmonds because he says quite clearly there is another there is a route of appeal. So leaving aside the judicial review which is what he was concerned with there, he said that an aggrieved party could, even when there was a policy, go down that route. The reasoning in the judgment was to do with a challenge to the policy by way of judicial review (which we are not making) where the judge said you cannot challenge the policy just because it might have a licence condition which is not reasonably necessary. So they are two different things, sir, if I have explained that clearly enough.
On the Red Cab case I didn't get a chance to note the point Mr Kolvin has made. He said that it was not to do with the policy and it was just something that the council dreamt up. This was something which had been although they hadn't gone through the consultation procedure which is now adopted by local authorities because of various Acts of Parliament that encourage them to do that. When this case was decided there were none of those regulations in place. This was nevertheless a policy of Blackpool Borough Council at the time and it was applicable to all the drivers.
The judge in that case, contrary to what Mr Kolvin said, this was a judicial review case, the Red Cab case. The drivers actually failed in their case but because of what the judge said in his (is it?) dicta, if that's the word, where he said that the licence condition that the Blackpool Borough Council was proposing was so far outside what was reasonable as to be not reasonably necessary.
Then a challenge under s.48 I think it was then because that was a private hire section of the Local Government (Miscellaneous Provisions) Act would succeed. As a result of that the council actually withdrew that licence condition. So although the drivers lost the case strictly speaking on judicial review, the outcome of the case because what the judge said was they actually succeeded because he said that licence condition is not reasonably necessary.
That is, I think, what I would like to say about those points, sir.
MR JUSTICE SUPPERSTONE: Thank you.
LITIGATION FRIEND: There is one other thing, if I may assist you.
MR JUSTICE SUPPERSTONE: Yes.
LITIGATION FRIEND: Last night I was having a moment to browse through Button's Law on Taxis which is the standard law on taxis and I have taken the liberty of bringing some copies here. That sets out quite plainly that the accepted law, contrary to what has been said before, the accepted law is that appeals are to the Magistrates' Court. I am trying to find the actual page.
And to touch on the point Mr Kolvin has made, he said that none of the judges in the cases we have alluded to describe how the appeal should be decided outside of a judicial review process. But in the Button's Law on Taxis he says the appeal is quasi-judicial and the normal rules of procedure don't apply, and what the magistrates are supposed to do is to sit in place of the council. And further, contrary to what Mr Kolvin has said, it is generally agreed that the respondent local authority should present their case first. In the Magistrates' Court hearing the cases are heard the wrong way around because it is not a criminal proceedings. The council authority is supposed to say why it is necessary for Mr Simmonds to have his licence condition and Mr Simmonds is supposed to be given an opportunity to challenge that. He has never had, after the seven hearings that Mr Kolvin has referred to, regrettably that opportunity. That is all he is asking to have.
MR JUSTICE SUPPERSTONE: Thank you.
(11.20 a.m.)
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