Wilson v Ashford Borough Council

The Crown Court Rules do not remove the statutory jurisdiction of a magistrates’ court to award costs under section 109 of the Magistrates’ Courts Act 1980 where a Crown Court appeal is abandoned without leave. A notice stating that an appeal may be abandoned without leave does not promise immunity from costs. Nor can an administrative court officer create a legitimate expectation that binds a judicial court or deprives another party of a statutory right. The costs discretion must be exercised judicially on the merits, including the expenses properly incurred before abandonment.

The claimant appealed by way of case stated against the East Kent Magistrates’ decision ordering her to pay £5,721 in costs to Ashford Borough Council. She had abandoned a Crown Court appeal against the dismissal of her challenge to an abatement notice more than three clear days before the listed hearing. The Crown Court notice stated that an appeal could be abandoned without leave within that period, but warned that costs might be payable if the required notice was not given.

The issues were whether section 109 of the Magistrates’ Courts Act 1980 permitted a costs application, whether the notice created a legitimate expectation or made the application an abuse of process, and whether the magistrates had exercised their discretion unreasonably.

1. The appeal was dismissed. Each question posed by the magistrates was answered in the negative.
2. Rule 11 of the Crown Court Rules 1982 permits abandonment without leave where notice is given at least three days before the hearing. Rule 12(5) prevents the Crown Court from making a costs order on such an abandonment. That rule is subject to section 109 of the Magistrates’ Courts Act 1980, which gives the court against whose decision the appeal was brought a discretionary power, on application by the other party, to award costs properly incurred before notice of abandonment.
3. The statutory scheme allocates jurisdiction between the Crown Court and the magistrates’ court. Otherwise, section 109 would have little or no operation where an appeal was abandoned within time.
4. The observation in R v Crown Court at Guildford [1988] 87 Cr.App.R 265 that timely abandonment created no risk as to costs did not decide the issue now before the court and did not fully reflect section 109.
5. The notice could reasonably have led an unrepresented or legally inexperienced appellant to assume that no costs order would be made. It did not, however, create a binding promise. Legitimate expectation is rooted in fairness, and an administrative officer could not bind either court or affect the local authority’s statutory entitlement.
6. There was no abuse of process in the Council pursuing costs. The magistrates were required to determine the application judicially. They could take account of the merits and of expenses incurred after abandonment, but any challenge to quantum required adequate facts in the stated case.
7. The magistrates were entitled to award costs. The claimant was ordered to pay £3,500 towards the Council’s costs of the appeal.

• High Court (Administrative Court): The Divisional Court dismissed the appeal by way of case stated and upheld the magistrates’ jurisdiction to consider the Council’s application for costs.
• East Kent Magistrates’ Court: The claimant was ordered to pay Ashford Borough Council £5,721 under section 109 of the Magistrates’ Courts Act 1980.