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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dinev & Ors, R (on the application of) v City Of Westminster Council [2001] EWCA Civ 80 (25 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/80.html Cite as: [2001] EWCA Civ 80

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE MAURICE KAY)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 25 January 2001

1. LORD JUSTICE SIMON BROWN: This a renewed application for permission to appeal against the order of Maurice Kay J, sitting in the Administrative Court on 24 October 2000, dismissing the applicants' judicial review challenge to the decision of 15 February 2000 to introduce a temporary licensing scheme for portrait artists in Leicester Square, a scheme designed to last for three months beginning on 27 March 2000. The applicants also challenged a related decision by which the respondents required those seeking a licence to complete a particular form of application which included:

"4. Evidence of payment of national insurance contributions.

5. Evidence of art qualification/membership of an artists association.

6. Work permit if appropriate."

2. That was said to be in breach of article 43 of the EC Treaty as to the right of establishment. Those problems, however, were resolved before the hearing in October. On counsel's advice, the application form had already been revised.
3. The challenge before the judge was thus confined to the temporary licensing scheme, the essential basis of challenge being that that scheme had been introduced without consultation despite what is contended to be the applicant's legitimate expectation that they would be consulted. Maurice Kay J rejected the argument in this terms:

"The present case is concerned with unlicensed street trading, a repeated criminal offence notwithstanding the practice of non-enforcement .... the law should be slow to extend to persons acting unlawfully a legitimate expectation of consultation because their expectation does not have a basis in legitimacy and their interest is not one that the law holds protected .... whilst I do not say that there can never be circumstances in which persons acting unlawfully may successfully invoke a legitimate expectation, the circumstances of this case do not give rise to a legitimate expectation of consultation."

4. Mr Miller seeks permission to appeal on the basis that that involved an impermissibly restrictive approach to the doctrine of legitimate expectation. Pill LJ, the single Lord Justice who initially refused this application when it was first considered on the documents, said:

"I agree that legitimate is not to be equated with lawful but in the circumstances I do not consider that the applicants have a legitimate expectation as defined in the authorities."

5. Mr Miller returns to the fray, relying not least on Lord Fraser's judgment in the well-known Privy Council case of Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629. He points out that that case concerned an illegal immigrant to Hong Kong who had been living and working there unlawfully for some years. He was, nevertheless, held to have had a legitimate expectation of being given the opportunity to indicate why he should not be deported. That is true, but the Government in Hong Kong had expressly promised each illegal immigrant that he would be interviewed and his case treated individually on its merits. It was, as my judgment in R v Devon County Council, ex parte Baker [1995] 1 All ER 73 at 89 made plain a category 4 case of legitimate expectation, not, as this one could only be, a category 2 case.
6. An authority perhaps closer in point is one which Mr Miller has very properly brought to my attention, R v South Somerset District Council ex parte DJB (Group) Ltd (1989) 1 Admin LR 11. In that case Woolf LJ and Saville J in the Divisional Court held that shopkeepers, who had been trading illegally in breach of the Sunday trading law, had no legitimate expectation that they would not be prosecuted for doing so. Mr Miller seeks to distinguish that case from the present on the basis that these applicants, unlike the Sunday traders, are not seeking the right to continue to conduct themselves unlawfully, but rather are seeking to be consulted before a decision is taken which may or may not legitimise their activities. That seems to me a difficult distinction to draw. If Mr Miller accepts on the authority of the South Somerset case that his clients could not have quarrelled with a decision by the respondent council to prosecute them, it would seem, to my mind, somewhat surprising that they can, nevertheless, quarrel with the less repressive course taken, namely that of introducing a licensing scheme.
7. However, it is not wholly, or indeed essentially, on that basis, however, that I would refuse permission to appeal. Rather it is because this challenge has long since been overtaken by events. As stated, the challenge was to a three-month scheme. One has only to read Mr Roake's witness statement of 4 September 2000 on behalf of the respondents to see how much has happened since then. I have already referred to the new application form, revised because of the problems identified when this challenge was first launched. I now read two short paragraphs from Mr Roake's statement:

"25. Throughout the trial period, the Respondent has taken the view that the scheme is but a trial scheme and that it will be subject to review and amendment as circumstances have dictated. The Respondent has been receptive to representations and has considered and taken such representations into account when making decisions.

....

27. With regard to the suggestion that the portrait artists be relocated either to the Swiss Court area or to the north terrace of Leicester Square, officers have considered this possibility. A feasibility study of both suggestions will be conducted and the results reported to a future meeting of the appropriate committee."

8. These applicants have now had every opportunity during the course of these proceedings to make whatever representations they wish to make. There is no reason to doubt that the respondents had been ready, and will continue to be ready, to consider them. There can be no possible reason now to quash the original three-month scheme. Time has moved on. I am wholly unpersuaded by Mr Miller's contention that the original scheme still, in effect, lives on.
9. It would seem to me a gross waste of court time and public money now to engage in an arid debate as to whether originally these applicants strictly did or did not have a legitimate expectation of being consulted. This renewed application for permission to appeal is refused.
Order :Permission to appeal refused.