Kelly, R (on the application of) v Liverpool Crown Court & Anor

A public licensing body may adopt a general policy to guide individual decisions, but it must not fetter its discretion. It must decide whether applying the policy in the particular case is fair and just. Treating a later policy as a complete answer to an earlier application, without that individual assessment, is an error of law.

In judicial review of an appellate decision, delay relevant to the availability of relief is delay after the decision under review. Earlier delay in the underlying dispute cannot itself defeat review. Where remission would be disproportionate and the evidence permits an impressionistic assessment, an appellate court may substitute appropriate relief, guided by fairness, justice and the overriding objective.

Mr Kelly appealed against Newman J’s refusal on 25 May 2004 of his application for judicial review. The review concerned a Liverpool Crown Court decision of 11 July 2003 dismissing appeals relating to taxi-licence applications made in 1991, 1993 and 2002.

The principal issues were whether the 1991 application had been remitted for reconsideration, whether failure to respond to a later invitation to apply amounted to withdrawal, whether delay defeated judicial review, and whether the Crown Court had erred by treating the local authority’s later three-year policy as conclusive. The court also considered the appropriate relief and whether the matter should be remitted.

1. Appeal allowed. Waller LJ, whose reasons were accepted by Dyson LJ and Neuberger LJ, held that Newman J was wrong to take account of delay before the Crown Court’s decision of 11 July 2003 when deciding whether judicial review remained available. The Recorder of Liverpool had extended time for the appeal, and the judicial review concerned the Crown Court’s decision.
2. The 1991 application had been remitted to the Wirral Borough Council for reconsideration. The council was not entitled to require Mr Kelly to make a fresh application in 1996. His failure to answer the council’s letter did not withdraw the outstanding application. The 1993 application had not been remitted and its validity was left undecided. The 2002 application was not properly before the court.
3. A licensing body may adopt a general policy, but it must not fetter its discretion. It must consider whether applying the policy in the individual case is fair and just. That principle was applied from Sagnata v Norwich Corporation [1971] 2 QB 614. The Crown Court therefore erred in law by treating the 2002 three-year policy as a complete answer to the 1991 application.
4. Although remission to the Crown Court would ordinarily have been appropriate, this court had jurisdiction to substitute its own order. The court applied the overriding objective in CPR 1.1, including saving expense, proportionality, expedition, fairness and proper allocation of court resources. The assessment was necessarily impressionistic, the proceedings had been exceptionally protracted, sufficient evidence was available, and no material injustice to the council, existing licensees or the public was identified.
5. The fair number of licences was assessed by reference to the number Mr Kelly might reasonably have received under the former unmet-demand policy, his having pursued the council through litigation, the change to deregulation, the later age policy, the existence of older licensed vehicles, and the prejudice caused by the delay. The court substituted an order for the grant of five licences for vehicles covered by the 1991 application, selected by Mr Kelly, subject to satisfactory MOT tests and the conditions applicable to vehicles over three years old.

• Court of Appeal (Civil Division) [2006] EWCA Civ 11: allowed the appeal and substituted an order for five taxi licences relating to the 1991 application.
• Administrative Court: Newman J refused judicial review of the Liverpool Crown Court’s decision dated 11 July 2003.
• Liverpool Crown Court: dismissed Mr Kelly’s appeals concerning the 1991, 1993 and 2002 applications, treating the council’s three-year policy as decisive.
• Earlier proceedings: Laws J remitted the 1991 application to the council, and the Court of Appeal upheld that decision on 3 May 1996.