Tilat Khan, R (on the application of) v Leicester Magistrates’ Court

A party has a fair opportunity to be heard on a costs application where the application is notified in advance, the party is represented, and the tribunal leaves a reasonable opportunity to make submissions. Natural justice does not require the tribunal to compel an advocate to speak where the advocate is able to address it.

In assessing costs in council tax liability-order proceedings, magistrates must consider whether the claimed costs were reasonably incurred in obtaining the order. That assessment may include the manner in which contested proceedings were pursued.

The claimant challenged a £13,500 costs order made by Leicester Magistrates’ Court after it made council tax liability orders in favour of Leicester City Council. The challenge alleged that the claimant’s representative had not been given an opportunity to address the magistrates on the principle or amount of costs.

The factual accounts differed. The court considered witness evidence and contemporaneous notes concerning the costs application, the representative’s opportunity to respond, and the role of the court legal adviser. The central issues were whether natural justice and Article 6 had been infringed and, if so, whether relief could be refused under s 31(2A) of the Senior Courts Act 1981.

1. Claim dismissed. The claimant had a lawful opportunity to make submissions on costs, and no error of law or breach of natural justice was established.
2. An opportunity to be heard comprises a hearing or other means of communicating with the tribunal, the option to appear or be represented, and a willingness by the tribunal to listen to and consider the representations the party chooses to make. It is distinct from an active refusal to hear counsel.
3. The claimant’s representative had advance notice of the costs schedule, was represented by counsel, and was able to address the justices after the application, request that they return from retirement, or address them on their return. The evidence did not show that he was prevented from doing so. The court therefore found no unfair hearing for the purposes of natural justice or Article 6.
4. The court nevertheless considered the alternative argument under s 31(2A) of the Senior Courts Act 1981. Under regulation 34(7) of the Council Tax (Administration and Enforcement) Regulations 1992, the magistrates had to consider whether the costs were reasonably incurred in obtaining the liability order. The assessment could take account of the manner in which the proceedings were pursued. R (Nicolson) v Tottenham Magistrates Court was confined to its particular facts and did not require the conclusion that the magistrates lacked power to assess costs in a contested liability-order case.
5. If a breach of natural justice had been established, relief would not have been refused on the basis advanced under s 31(2A). The court also observed that a case stated under s 111 of the Magistrates’ Courts Act 1980 is the primary route for challenging a point of law and is generally better suited than judicial review to disputed factual issues.
6. The application for judicial review was dismissed. The claimant was ordered to pay the interested party’s costs, summarily assessed at £16,500.

First-instance judicial review in the Administrative Court. The judgment does not state any prior appellate decision in the same proceedings.