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

Mr James submitted that Mr Khan is an experienced barrister, called to the Bar in 1972. As Mr Anderson put it, if Mr Khan has something to say, he will say it. Mr Khan was very firm in his evidence.

Mr Essat had not attended the hearing to give evidence on behalf the Defendant. There was no hearsay notice in which circumstances the Civil Procedure Rules require a witness to be called to give evidence. That witness statement should be discarded entirely.

There was strong circumstantial evidence to support the Claimant’s case. The Magistrates were frustrated. It was a whirlwind of a hearing and was moving into the lunch hour. It is plausible that the court “wanted to get rid and move on.”

On the other side of the case, there is Ms Barden’s evidence which comes down to one line in her attendance note which was prepared about three hours after the hearing. That part of her attendance note is not supported by the notes in her blue book and she could not remember the submissions which Mr Khan made. Mr Barden’s email should be understood as a reconstruction which sometimes happens with memory. We all have fallible memories.

The balance comes down in favour of finding that Mr Khan was not given a reasonable opportunity to deal with costs.

Ms Lean submitted that any counsel would expect there to be a costs application and would be expected to defend his or her client and to protect their interests. In this case a costs schedule was filed and served in advance of the hearing. Mr Khan was on notice and had full particulars of the costs sought.

There is no detailed contemporaneous account from the Claimant nor her witnesses whereas the account in the Defendant’s acknowledgment of service and Ms Barden’s email make clear that Mr Khan had an opportunity to make submissions.

It is notable that no witness suggests that Mr Khan raised an objection that he was not given an opportunity to say what he wished to say. An experienced barrister would stand up and make the point.

Mr Khan’s evidence should be approached with caution because of the absence of contemporaneous notes and his evidence is wholly dependent on recollection a year and half after the event. The evidence has evolved over time and in response to sight of the Detailed Grounds of Defence. In his second witness statement, Mr Khan referred to costs being awarded under Regulation 34(7) of the 1992 Regulations in respect of Council Tax. This point is ex post facto rationalisation, brought about by reading the Interested Party’s Detailed Grounds of Defence.

Mr Khan was confused about Mr Essat. Mr Khan was adamant that there was a clerk in addition to Mr Essat being in court.

Mr Anderson had not made a note of large parts of the hearing. Most notably, Mr Anderson had not noted the decision and the reasons given by the justices on the costs submissions. Evidently, the justices had made that decision, had announced it, and gave their reasons as was noted by Ms Barden.