Reigate aqnd Banstead Borough Council v Pawlowski

Under section 61 of the Local Government (Miscellaneous Provisions) Act 1976, suspension is a substantive and final sanction, not a holding measure pending investigation or criminal proceedings. A council must first determine whether a statutory ground is made out, then exercise its judgment and discretion as to suspension or revocation. Where a charge concerns conduct which, if proved, would ordinarily make the driver unfit, revocation will usually be the appropriate course, although later facts may justify a fresh decision.

In licensing appeals, the usual costs position is no order against the regulatory authority. Financial hardship caused by the regulatory action, rather than merely by the cost of litigation, may nevertheless make an award just and reasonable. “Substantial hardship” is not a rigid statutory threshold.

This was an appeal by case stated brought by Reigate and Banstead Borough Council against the decision of the South East Surrey Justices, who had allowed Jacek Pawlowski’s appeal against the immediate revocation of his private hire vehicle driver’s licence.

The Justices found that Mr Pawlowski was a fit and proper person to hold a licence and ordered the Council to pay £1,800 costs. The Council sought guidance on suspension under section 61 of the Local Government (Miscellaneous Provisions) Act 1976 and challenged the adequacy and legality of the costs order. The central issues were whether the Justices’ observations about suspension formed part of their decision and whether their costs reasoning was legally sufficient.

1. Disposition. The appeal was dismissed. The Justices’ determinative conclusion was that, on the fresh hearing required by section 61(3) of the Local Government (Miscellaneous Provisions) Act 1976, Mr Pawlowski was a fit and proper person to hold a licence. Their observation that suspension, rather than revocation, would initially have been appropriate was not the basis of the decision.
2. Suspension. Section 61 involves two stages. First, the council must exercise judgment on whether a statutory ground exists, including whether the driver remains fit and proper. Secondly, if that threshold is met, the council must lawfully exercise its discretion whether to suspend or revoke. Following and applying R (Singh) v Cardiff City Council [2012] EWHC 1852 (Admin), suspension cannot be used provisionally while the council waits for a criminal trial or further investigation. It must be based on a substantive decision after the driver has had a proper opportunity to make representations.
3. A council cannot achieve a holding operation by describing a provisional suspension as substantive. Where a charge concerns conduct which, if proved, would ordinarily justify revocation, revocation will generally be appropriate if action is required at that stage. A later revocation is not necessarily barred by an earlier substantive suspension where genuinely new facts emerging during the criminal proceedings materially alter the assessment.
4. Costs. Under section 64 of the Magistrates’ Courts Act 1980, the question is whether an order is just and reasonable. Applying R (Perinpanathan) v City of Westminster Magistrates’ Court [2010] EWCA Civ 40, the starting point in a successful licensing appeal is usually no order for costs. However, financial hardship caused by the regulatory action may justify an award. “Substantial hardship” is not a rigid statutory formula; it indicates that the hardship must have some real substance.
5. The Justices’ brief reference to the interests of justice was adequate in context. The parties had addressed the ordinary costs position and the financial hardship caused by the temporary loss of the licence. The Council could understand why costs had been awarded and could not show substantial prejudice.

High Court (Administrative Court): dismissed the Council’s appeal by case stated from the decision of the South East Surrey Justices sitting at Redhill Magistrates Court on 2 February 2016. The Justices had allowed Mr Pawlowski’s appeal against revocation, reinstated the licence and awarded £1,800 costs.