R (on the application of Parker) v Teesside Magistrates Court

Costs – Statutory nuisance – Statutory duty – Claimant applying for statutory nuisance abatement notice against interested party freeholders under section 82 of Environmental Protection Act 1990 – Order being made by consent – District judge awarding claimant nominal sum on application for costs against interested parties – Claimant applying for judicial review – Whether judge erring in law in approach to costs application – Application granted The claimant rented 7 Peaton Street, North Ormesby from his landlord (H). The freeholder owner was Z Ltd. The interested parties were freeholders of the neighbouring house at No 9. A party wall formed the boundary of the back gardens of No 7 and No 9. Buddleias growing in the garden of No 9 had damaged the wall, which had not been properly maintained. That had resulted in a partial collapse, which lacerated the claimant’s hand on 14 January 2020. He required stitches, suffered infection and scarring. He brought proceedings in the magistrates’ court for a statutory nuisance abatement order pursuant to section 82 of the Environmental Protection Act 1990. His case was that the party wall constituted premises in a state prejudicial to health or a nuisance (statutory nuisance) under section 79(1)(a)), and that the nuisance required to be remedied. The interested parties were jointly responsible with Z Ltd for the state of the wall. They admitted liability and agreed terms of a remedial abatement order. The claimant sought an order for costs pursuant to section 82(12) of the 1990 Act amounting to £15,630 plus VAT. An agreement was reached with Z Ltd to pay costs in the sum of £4,500. The extent of the liability of the interested parties was determined by the district judge. The judge awarded a nominal sum of £100 in costs against the interested parties on the basis that they did not have the means to pay more, without regard to the detailed basis on which the costs were claimed. The claimant applied for judicial review of that decision contending that the district judge erred in law in the manner in which the costs application was considered. Held: The application was granted. (1) Under section 82(12), there was a statutory duty which involved a specific formula. The magistrates’ court had to address three questions: (i) What “expenses” were “properly incurred” by the private prosecutor in the proceedings; (ii) What amount was “reasonably sufficient to compensate” them for the properly incurred expenses; and (iii) If there was more than one defendant responsible, what was a “fair and reasonable proportion” of the expenses which any given defendant should be ordered to pay. The question of propriety (properly) was not freestanding. Propriety was about whether a step involving the incurring of that item of costs was a proper one for the private prosecutor to have taken. The question of reasonableness was not freestanding. Reasonableness went to sufficiency, for a purpose: to compensate the private prosecutor. All three questions engaged an exercise of evaluative judgment, or discretion, to be performed by the magistrates’ court. The margin (or latitude) for evaluative judgment was reflected in the word “considers”. The judgment (or discretion) arose in asking specific questions posed by the subsection. The court thus had a latitude for evaluative judgment, including a judgment in identifying considerations which did or did not assist it, provided always that the court asked the right questions, correctly recognised legal relevancies and irrelevancies, adopted an answer within the range of reasonable responses and gave legally adequate reasons. (2) Parliament imposed a duty which involved a broad brush process. Nevertheless, asking and answering the questions also involved some inquiry by the magistrates, in applying the right test and in getting to their evaluative answer. That was a summary process and it was not proper for parties to go to significant lengths and expense in litigating quantum. Nor was it incumbent on magistrates to deliver reasoned judgments on compensation or to be subjected to unrealistic, oppressive and needless standards of point-by-point analysis: Taylor v Walsall and District Property and Investment Co Ltd [1998] Env LR 600, R (Notting Hill Genesis) v Camberwell Green Magistrates’ Court [2019] EWHC 1423 (Admin) and Taylor v Burton [2021] EWHC 1454 (Admin) [2021] HLR 46 considered. The obligation was to provide a sum of money which was reasonably sufficient to compensate. It was not reasonableness per se. The focus of reasonableness was on the costs incurred. The district judge clearly erred in his approach to the assessment of costs in the present case. If he had tracked the contours of this particular statutory provision, he would have asked the three questions embedded in the particular statutory language and evaluated the contents of the costs schedule. He would have considered any basis on which it was challenged by the interested parties and addressed whether any items were to be excluded, as not “reasonably incurred expenses”; or whether any amounts were to be reduced, as not “reasonably sufficient to compensate”; or whether there were any points regarding apportionment as between the interested parties or alongside Z, as a “fair and reasonable proportion), in circumstances where Z’s costs liability had been agreed. (3) The district judge did not, even in a broad brush, summary way, investigate the position, in a way which set out to answer the three questions. He looked at costs through the prism of the interested parties’ means. For the purposes of section 82(12), the question whether the defendant had the “means” to pay the costs order was always relevant to questions of recovery and enforcement of the costs which the court had ordered under section 82(12). The present case illustrated the practical implications of that policy choice made by parliament. The evidence indicated that the interested parties were the registered freehold owners of a house in which there was believed to be considerable equity, which had two expensive cars parked on the drive when the papers were served. Whether there was the impecuniosity which the interested parties professed, and which the district judge was prepared to accept, would be seen through the enforcement (execution) phase. The point was that parliament in section 82(12) had made a policy choice, to avoid such considerations being a prism applicable to the appropriateness, in principle, of obtaining a costs order itself. The district judge’s decision on costs would be quashed and the question remitted for determination by a differently constituted bench. David Graham (instructed by Watson Woodhouse Solicitors, of Middlesbrough) appeared for the claimant. Ryan Kohli (instructed by the Government Legal Department) appeared for the defendant. The first interested party appeared in person. The second interested party did not appear and was not represented. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Parker) v Teesside Magistrates Court