PannageMan

PannageMan

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An occasional blog about commons, village greens and rights of way. New posts will be tweeted at @PannageMan. Any views expressed here entirely my own. Full index to blogs: http://www.craddocks.co.uk/pannageman/index.htm.

Restriction on award of costs in the magistrates' court

Rights of WayPosted by Hugh Craddock Thu, August 28, 2014 17:35:19

A recent High Court judgment brings welcome clarity to the power of the magistrates' court to award costs on a 'complaint'. A complaint is the procedure by which most civil matters are initiated in magistrates' courts. Although the magistrates have a primarily criminal jurisdiction, they also have a role in regulating the relationship of the state, and particularly local government, with the citizen. For example, under s.91 of the Environmental Protection Act 1990, anyone (a 'complainant') may ask the court to make a litter abatement order against a local authority which has allowed a road to become 'defaced' by litter. More relevantly to this blog, the Highways Act 1980 requires the magistrates to determine an application by the highway authority to stop up or divert a highway (s.116: there are separate, more accessible, procedures specifically for rights of way, but the authority still has recourse to the court as regards any highway), while any person may apply to the court for an order requiring the authority to fix a highway out of repair (s.56), or to address an obstruction on a right of way (s.130A).

These provisions giving recourse to the magistrates' court were conceived in a different age, when every town had its own court house and local bench of justices, and when the court fees were nominal. Now, the fee for a complaint is £205, and £720 if the complaint is contested (see para.8 of the substitute schedule contained in the schedule to the Magistrates’ Courts Fees (Amendment) Order 2014, SI 2014/875), so it hardly seems likely that the average citizen, troubled by the council's failure to sweep a local street, will resort to the courts to oblige the council to act.

Now, s.64 of the Magistrates Courts Act 1980 provides that a complainant who obtains an order from the court may be awarded costs against the defendant (note the 'may'): so the successful litigant may get back both legal fees and court costs — but it's not guaranteed. But conversely, where the complaint is dismissed, s.64 enables the magistrates to award costs against the complainant: a local authority represented by counsel may easily rack up £5,000 costs preparing for and attending a half-day hearing.

But what if someone else turns up in court to have their say in relation to a complaint — an interested party? Are they able to apply for costs against the complainant, or the defendant, too? On a s.130A application (to require the highway authority to deal with an obstruction of a right of way), s.130C(6) provides that the landowner 'responsible for the obstruction' is entitled to be heard by the court, presumably to explain that the obstruction is not an obstruction at all, or that it is de minimis, or that the right of way is 'seriously disputed' (s.130B(5)(a)).

According to the judgment of the High Court in Wheeler v Norfolk County Council, the answer is 'no'. The court said that the language of s.64 was plain: the magistrates had power to award costs to follow the event, but had no power to award costs in favour of an interested party. Collins J said: "the power is only given to make orders for costs between the parties to the case who are either complainant or defendant." In Wheeler, the complainant had, under s.130A, sought an order against Norfolk County Council, but it had been refused, on the grounds that the obstruction had been licensed by the council under s.147 (which confers on the highway authority a power to authorise the erection of stiles or gates on a public right of way). The landowner had appeared in support of the council's defence against the claim (and indeed, in his own self-interest: there is no criminal liability attached to an order under s.130A, but such an order, if granted, does beg the question whether a criminal offence has been committed), and sought his costs against Mr Wheeler. It seems that the magistrates were either poorly advised by their clerk, or unduly sympathetic to the plight of the landowner, but despite the language of s.64, they decided that Mr Wheeler should pay those costs.

Mr Wheeler's victory was Pyrrhic. His s.130A complaint was dismissed by the magistrates (and not appealed). The High Court unsurprisingly declined to award Mr Wheeler costs against the magistrates, and the landowner did not appear and had obtained an assurance that he would not be held liable for those costs. So the costs of the High Court hearing were borne by Mr Wheeler, and exceeded the costs in favour of the landowner which were the subject of the appeal. Mr Wheeler still had to pay the costs of Norfolk County Council in the magistrates: over £6,000. But the judgment, albeit one in which no argument to the contrary was brought before the court other than the magistrates' case stated, is a useful confirmation that interested parties appear before the court at their own expense. Pannageman understands that Mr Wheeler's application was supported by the Ramblers, so he may not end up seriously out of pocket.

An interesting question now arises in an application by the highway authority to stop up or divert a highway under s.116 of the Highways Act 1980. In such an application, there is no nominated defendant, but "any person who uses the highway and any other person who would be aggrieved by the making of the order applied for, have a right to be heard" in objection to the order. Are such objectors interested parties, who are immune from an order for costs against them, or do they take on the status of defendants, who are potentially liable for costs? In the Roman Road case heard in Oxford magistrates' court in 2007, the Ramblers and the British Horse Society were landed with a substantial five figure sum each in costs for objecting to the closure of a bridleway through a BMW factory site. They did not raise s.64 as a possible objection at the time. They may well be sorry now.

Postcript: A bit worryingly, I came across a report of Lincolnshire CC v Brewis and others ([1992] Times Law Reports, 18 August) a month or so after writing this post. In that case, the High Court held that a magistrates' court, on a s.116 application, did have jurisdiction to award costs in favour of objectors (so in this case, it was the objectors who sought their costs against the council, the magistrates' court having refused to make the s.116 order sought by the council). The court specifically considered s.64, and decided that an application under s.116 was indeed a complaint, but the report does not suggest the court considered the specific question of the status of objectors as defendants. Nevertheless, the case does raise further questions about the sufficiency of Wheeler as a defence to a potential award of costs against objectors to a s.116 order. So far as I can tell, Brewis was not cited to the court in Wheeler. It seems likely that a court will in due course be required to reconcile both cases in relation to a s.116 application. My money is on Wheeler.

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