Broxbourne Borough Council, R (on the application of) v North and East Hertfordshire Magistrates Court

A magistrates’ court determining a civil appeal must base its decision on evidence obtained fairly and made available to all members of the tribunal. A private view becomes impermissible where the magistrate conducts experiments or reconstructs events without the parties’ participation. Such a procedural irregularity is fatal where it creates a real concern that the decision may have been affected.

Magistrates have no general common-law power to reopen civil decisions. Any limited power extends only to correcting a clear error going to jurisdiction or procedural fairness. Costs in civil statutory-nuisance proceedings cannot be awarded from central funds. Where costs do not automatically follow the event, reasons are required for an order departing from the earlier decision.

Broxbourne Borough Council sought judicial review of decisions made by North and East Hertfordshire Magistrates’ Court on an appeal against an abatement notice for alleged artificial-light nuisance.

The Justices allowed the appeal on 29 April 2008. Before delivering judgment, the chairman had privately visited the site, taken photographs and conducted experiments involving the light. The Justices later awarded costs from central funds, although the proceedings were civil. On 5 November 2008 they purported to reopen that order and directed the Council to pay the interested party’s costs.

The central issues were whether the first decision was procedurally invalid and whether the Justices had jurisdiction to reopen their costs decision and substitute a further costs order.

1. The judicial review succeeded. Both decisions of the Justices were quashed. If the appeal against the abatement notice was pursued, it was to be remitted to a differently constituted bench, preferably at another Hertfordshire court and with an uninvolved legal adviser.
2. A private view is permissible where the judge merely observes a public place or physical feature already represented by evidence. It becomes irregular where the judge conducts a demonstration, experiment or reconstruction. The chairman had repeated experiments described in evidence, including covering the light with a newspaper. That was not a permissible view and was prima facie fatal to the trial.
3. All members of a multi-member tribunal must see the same evidence. The other Justices had not attended the chairman’s visit. The chairman’s photographs and observations were therefore not evidence considered jointly in the presence, or with the knowledge, of the parties.
4. The subsequent explanations did not cure the defect. The chairman’s own account showed that the decision was confirmed and reasons collectively formulated only after he disclosed the visit and photographs. An objective observer could reasonably conclude that the visit might have influenced the decision. Justice had not been seen to be done.
5. The Justices had no power to award costs from central funds. Section 16(1) of the Prosecution of Offences Act 1985 and regulation 16 of the Costs in Criminal Cases (General) Regulations 1986 applied only to criminal matters. The proceedings were civil, and section 64 of the Magistrates’ Courts Act 1980 supplied no such power.
6. The Justices had, at most, a limited common-law power to reopen their earlier order to correct the jurisdictional error concerning central funds. They had no jurisdiction to reopen the separate, lawful decision not to order the Council to pay the interested party’s costs.
7. The further costs order was independently unlawful. The advice that costs usually followed the event was wrong. Since costs in such proceedings do not simply follow the event, reasons were required for ordering the Council to pay them. No adequate reasons were given, and the reversal of the earlier costs decision was irrational in light of the Justices’ unchanged findings.
8. The Council was not awarded its judicial-review costs. Although the Justices’ conduct and responses were open to serious criticism, the high threshold of flagrancy required for an order against an inferior tribunal was not met. There was no order as to costs.

The judgment itself does not describe an earlier appellate decision. It concerns judicial review of decisions made by North and East Hertfordshire Magistrates’ Court on 29 April 2008 and 5 November 2008.