AC-2024-BHM-000217 - [2025] EWHC 2510 (Admin)

The onus is evidently on the Claimant to establish that the Defendant erred in law in deciding to make an order for costs in the sum of £13,500. At the hearing, Mr James submitted that the burden of establishing the facts on which Ground 3 depends is a burden which lies on the Claimant. There is authority that in establishing a jurisdictional fact the concept of burden of proof is of less importance. Rather, the court should simply apply the civil standard to the evidence without resorting to the concept of a burden of proof: R (CJ) v Cardiff City Council [2011] EWCA Civ 1590; [2012] PTSR 1235 per Pitchford LJ at [21]. The factual issue in this case is not jurisdictional, but is a precedent fact to the court considering the merits of Ground 3. I have approached the issue on the evidence to the civil standard but have not adopted any requirement for the Claimant to bear the burden.

Some precision is needed in understanding both what is alleged as the error of law and what circumstances would suffice to make out that error. Ground 3 is expressed in terms of being given an opportunity to be heard. The Interested Party’s concession is that a refusal to hear Mr Khan would be contrary to natural justice. The ground of review and the concession are not coterminous. A refusal to hear counsel is an act which actively prevents counsel from making a submission, in writing or orally, which they would otherwise have made. An opportunity to be heard is different. It comprises a hearing or other means of communicating to the tribunal, the option to appear or be represented and a willingness by the tribunal to listen to and to consider the representations a party choses to make.

This case is not about refusal. There is no evidence that either the justices or their legal advisor turned Mr Khan away when he sought to say something. They did not receive written submissions and refuse to consider them. Rather, this case is about whether Mr Khan had a proper chance to make his oral submissions.

In my judgment, there are important matters which are not in dispute and which are relevant context in which to make findings on the live evidence:

It is also part of the context that the complaint which is at the heart of this case was first raised on 15 July 2024 in a letter from the Claimant to the Magistrates’ Court. Before that date, Mr Khan did not raise any question or make any application to the justices after they had announced their decision. Moreover, Mr Khan did not raise any fairness point in his ‘Notice of Appeal’ dated 13^th June 2024. His complaint in respect of costs was that the Interested Party should have made the arguments on which it was successful at an earlier stage, avoiding the costs of the hearing. He did not complain that he was unfairly prevented from making that point. However, I have not based my factual findings on any inference drawn from these documents. There are many reasons which might explain why a party may not wish to allege unfairness. The absence of a complaint early in the dispute does not necessarily mean that proper grounds for complaint do not exist. I have therefore focussed on the contemporary material and the evidence which I have heard about it.

I appreciate the basis of Mr James’ submissions on Mr Essat’s evidence. He did not attend to give evidence. However, I do not accept Mr James’ submission that his evidence should be given no weight. Mr Essat signed the Defendant’s acknowledgment of service, which contains a statement of truth. In judicial review proceedings the court proceeds on the basis that the defendant is complying with its duty of frankness and candour. At the substantive stage, the defendant must identify relevant factors and evidence to assist the court: CPR 54A APD11.1. The evidence I have seen does not indicate that the Defendant has done anything other than comply with its duties. The situation is therefore rather different to civil factual disputes because it is a Part 8 Claim to which CPR 54 and the duty of candour applies. The court is not bound to accept the facts as set out by the Defendant, but equally it is not appropriate to discard the Defendant’s evidence solely because the Defendant has not appeared and has not given live evidence.

There are three contemporaneous notes or accounts of the hearing. There are Ms Barden’s and Mr Anderson’s handwritten notes of the hearing. The third document is Ms Barden’s attendance note which is contained in her email to her instructing solicitor dated 29^th May 2024 and timed at 16:15. I have found Ms Barden’s notes of the hearing and her attendance note to be the best evidence available, for these reasons:

I also accept Mr Essat’s evidence that Mr Khan was invited to make submissions. If Mr Khan did not appreciate that this had been said, through distraction or other reason, that does not mean that the opportunity was not given.

I accept Mr James’s submissions that Mr Khan is indeed an accomplished and very experienced barrister. His evidence was indeed firm. However, I found his evidence about Mr Essat both difficult to follow and to be inconsistent with evidence about which I can be quite sure. There can be no doubt that Mr Essat was the Legal Advisor as is clear from the acknowledgement of service, his witness statement and Ms Barden’s experience at court. This feature of the case gave me cause for some caution with other parts of Mr Khan’s evidence.

I also accept the evidence that the hearing was fast moving. That is life in many courts. Without more, that would not persuade me that there was a failure on the part of the decision-maker to discharge its judicial function with the result that the hearing was unfair: Rose v Humbles. Rather, the result indicates the opposite. Many advocates would regard limiting adverse costs to 60% of those claimed as a good result. The justices were clearly seeking to do justice between the parties.

In my judgment, the key question is one of opportunity. In that regard I find that Mr Khan was in a position to make submissions on costs. He had the costs schedule and sufficient notice of the application that he would face if the court did not accept his client’s case. There is no evidence that Mr Khan was prevented from standing up to make submissions. The act of standing up is both physical and a signal to the court. That opportunity was present from the time that the costs application was made until the justices returned from their retirement. In my judgment it was open to Mr Khan to: (1) make submissions immediately after the application had been made; (2) to have a message sent to the justices to ask them to come back to court to hear submissions, or; (3) to ask to make submissions immediately upon the return of the justices to court.

Does the evidence as a whole indicate that Mr Khan was deprived of an opportunity to make submissions on costs? I do not think that it does. In the normal context of a costs application at the end of a Magistrates’ Court hearing, I find that there was a lawful opportunity for the Claimant to be heard. That finding is sufficient to dismiss the application.

Though my finding disposes of the case, I shall also address the submissions on s31(2A) Senior Courts Act 1981.