Chorion Plc v Westminster City Council

A public authority’s policy document should accurately reflect its intended policy. It is insufficient to rely on a different administrative practice or on public-law constraints governing future decisions where the written policy conveys a broader meaning. A judge may decline to reopen a case after receiving a new argument following circulation of a draft judgment, particularly where the argument was not advanced at the hearing. An appellate party should not deploy a different argument on a permission application to undermine a costs order made on the basis of the case argued and decided below.

Chorion withdrew judicial review proceedings after Westminster altered the formulation of a licensing policy. Chorion considered that the proceedings had achieved their objective and was awarded part, but not all, of its costs by Mr Jack Beatson QC, sitting as a Deputy High Court Judge in the Administrative Court.

Westminster argued that Chorion’s original complaint was misconceived and that the altered policy had not changed the substantive position. It also advanced a new construction of the policy after the draft judgment had been circulated. The Court of Appeal considered whether there was a realistic prospect of successfully challenging the substantive reasoning or the consequential costs decision.

1. Application refused. The renewed application for permission to appeal had no realistic prospect of success.
2. The policy concerned applications for variations of existing licences. Paragraph 6.1 stated that a reference to a new licence included variations. Read with paragraph 6.8, which contained a presumption against granting new entertainment licences, the document could reasonably be understood as extending that presumption to variation applications. The wording concerning proposed terminal hours created uncertainty, but Westminster had to do more than demonstrate an uncertain implication. It had to show that the document could not refer to variations at all. That argument was untenable.
3. Mr Beatson was entitled to conclude that the policy document should not state something that did not represent Westminster’s intentions or actual policy. Westminster’s asserted practice of applying restrictions only to variations extending the operation of licensed premises did not justify the document’s wording.
4. The construction argument concerning paragraphs 6.8 and 6.12 had not been advanced at the substantive hearing. It was raised only after the draft judgment was circulated, by counsel who had not appeared at the hearing, and was presented as a request for a future opportunity to argue the point. Mr Beatson was entitled not to reopen the matter. He was also entitled to exercise his costs discretion on the basis of the case as argued and decided.
5. It was inappropriate to introduce different arguments at the permission stage in an attempt to offset the costs order. Application refused.

• Court of Appeal (Civil Division): On a renewed application for permission to appeal, the court refused permission: [2002] EWCA Civ 322.
• Administrative Court, Queen’s Bench Division: Mr Jack Beatson QC, sitting as a Deputy High Court Judge, awarded Chorion part, but not all, of its costs after it withdrew judicial review proceedings following an alteration to Westminster’s policy.