Uttlesford District Council, R (on the application of) v English Heritage

Under section 181 of the Licensing Act 2003, costs are discretionary and do not automatically follow the event. The court must decide what is just and reasonable in all the circumstances. Where a public authority has acted honestly, reasonably and properly in performing its public function, that is an important consideration, but it is not an absolute immunity from costs. The discretion may properly take account of unnecessary litigation and a party’s refusal to negotiate a principal issue. A costs award may nevertheless be excessive in principle where it includes expert or preparatory work that would have been incurred as part of an earlier licensing process. The appellate court may substitute a reduced costs order where the lower court has gone wrong in principle as to quantum.

Uttlesford District Council appealed by way of case stated against an order by Essex Justices sitting at Epping that it pay English Heritage’s costs of a dispute concerning a noise condition attached to a premises licence for Audley End House. The Justices varied the condition to impose a measurable noise limit and awarded English Heritage £16,802.50.

The central issues were whether reasonable justices properly advised could have awarded costs against the Council, despite its public regulatory function and the absence of submissions on the governing costs authorities, and whether the amount awarded was excessive or based on an error of principle.

1. Principle of costs. The appeal was allowed in part. The Justices were entitled to award costs in principle under section 181 of the Licensing Act 2003. Costs did not necessarily follow the event, and the question was whether the order was just and reasonable in all the circumstances.
2. Public authority considerations. The guidance in City of Bradford Metropolitan District Council v Booth [2000] 164 JP 485 required consideration of the financial prejudice to the successful challenger and the public interest in allowing authorities to make and stand by honest, reasonable and apparently sound decisions. The fact that a public authority acted reasonably and in good faith was an important factor, but its weight depended on the circumstances. The fact that English Heritage was itself publicly funded and performed a quasi-public function was also relevant.
3. Exercise of discretion. The Justices had not erred in awarding costs. They were entitled to consider that the contested hearing had been unnecessary because the Council had refused useful negotiation on the principal issue, particularly in light of its concession below. The absence of detailed submissions on the authorities did not require the order to be reopened.
4. Quantum. The Justices had gone wrong in principle by allowing the cost of the expert noise report. The report had been commissioned only after the licensing meeting and represented a cost that would have been incurred commercially if a measured condition had been imposed at that earlier stage. The solicitors’ and witness costs were also plainly excessive and were reduced by half. The substituted award was £5,581 inclusive of VAT.
5. Appeal costs. The Council was awarded its appeal costs in the sum of £7,423.75 inclusive, with English Heritage given liberty to apply in writing within 21 days concerning costs and summary assessment.

• Essex Justices sitting at Epping: varied the licensing condition and ordered Uttlesford District Council to pay English Heritage £16,802.50 in costs.
• High Court (Administrative Court): upheld the costs order in principle, set aside the amount as excessive and substituted £5,581. The Council received its appeal costs.