Taylor, R (on the application of) v Commissioner for the Metropolitan Police

An application for a closure order under section 2 of the Anti-social Behaviour Act 2003 may constitute proceedings brought by complaint, even though the Act uses the term application and does not require a summons. The question is one of substance rather than form. A complaint may seek redress for a grievance, need not be written, need not be accompanied by a summons, and need not identify a defendant at the outset. Where an interested person opposes the application, the proceedings may involve the necessary grievance and lis. The special procedure in sections 1 and 2 impliedly displaces inconsistent general provisions concerning the hearing. Accordingly, a magistrates’ court has jurisdiction under section 64 of the Magistrates’ Courts Act 1980 to award costs on an unsuccessful closure-order application.

The Commissioner applied to Camberwell Green Magistrates’ Court for a closure order under section 2 of the Anti-social Behaviour Act 2003. The application was dismissed. The claimant then sought inter partes costs under section 64 of the Magistrates’ Courts Act 1980.

The deputy district judge held that the court lacked jurisdiction because the closure-order procedure was not commenced by complaint and involved no complaint or summons. The claimant appealed by way of case stated. The central issue was whether an application under section 2 of the 2003 Act constituted proceedings on the hearing of a complaint for the purposes of section 64 of the 1980 Act.

1. Appeal allowed. The deputy district judge’s decision on jurisdiction was quashed and the matter was remitted for further consideration.

2. The proceedings were civil in character, and the power to award costs was wholly statutory. Since the 2003 Act contained no express inter partes costs power, any jurisdiction had to arise under section 64 of the Magistrates’ Courts Act 1980.

3. The character of proceedings as a complaint depends on substance rather than form. The relevant characteristics include seeking redress for an injury or grievance. A complaint need not be written, and the issue of a summons is not essential. An identifiable defendant is also unnecessary at the outset.

4. Applications under sections 1 and 2 of the Anti-social Behaviour Act 2003 have those characteristics. Although the application is directed to premises, an opposed application joins issues about activities connected with the premises. In the present case the Commissioner alleged a grievance, the claimant appeared to resist the application, and there was a lis between them.

5. The special procedure in sections 1 and 2 of the 2003 Act impliedly displaces the general rule in section 55(3) of the 1980 Act where necessary to preserve the statutory requirement for an early hearing. That consequence did not prevent the proceedings from being proceedings by complaint. The absence of a summons was immaterial.

6. The decisions in Metropolitan Police Commissioner v Hooper [2005] 4 All ER 1095, R (Turner) v Highbury Corner Magistrates’ Court [2006] 1 WLR 220 and R (Cleary) v Highbury Corner Magistrates’ Court [2007] 1 WLR 1272 supported the conclusion that section 54 applied. In particular, the conclusion in Turner that such proceedings possessed the characteristics of a complaint was a step in its reasoning.

7. Sections 9 and 10 of the 2003 Act did not disclose a policy protecting the police from costs orders. The court expressed no view on whether section 10 extended to costs.

8. The certified question was answered: a magistrates’ court hearing an application for a closure order under section 2 of the 2003 Act has jurisdiction to award costs under section 64 of the 1980 Act.

• Camberwell Green Magistrates’ Court: refused the closure-order application and declined to award the claimant costs.
• High Court (Administrative Court): allowed the case-stated appeal, quashed the decision on costs jurisdiction and remitted the matter for reconsideration.