England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(MR JUSTICE SCOTT BAKER)

		Royal Courts of Justice Strand London WC2 Friday, 29th June 2001

Friday, 29th June 2001

1. LORD JUSTICE DYSON: This is a renewed application for permission to apply for judicial review following refusal by Scott Baker J on 21st February 2001 of permission to Mr Barnes to apply for judicial review of a decision of the Essex Magistrates Court notified to him in a letter of 6th June 2000. Mr Barnes on 4th July 1997 had lost an appeal by way of case stated to the High Court from a decision of the Essex Magistrates Court made on 15th November 1995.
2. The essence of his application for judicial review was a complaint that the case stated was inaccurate in a number of factual respects and, as I understand it, that in the result, it asked the wrong question of law or questions of law of the court. He also alleges that the failure of the Magistrates Court to consider his representations to amend the case stated was a breach of natural justice and further that it involved a breach of his human rights.
3. The underlying dispute arose out of Mr Barnes' challenge of distress that had been levied by the Uttlesford District Council against him for failure to pay council tax. The facts which form the basis of the case stated were that Mr Barnes owed £1,166.57 council tax in respect of a property he occupied at Hill Top Mill Road, Bishops Stalford. A liability order had been made by the Saffron Waldon Magistrates Court pursuant to the Council tax (Administration and Enforcement) Regulation 1992. As a result. The council became entitled to levy distress pursuant to Regulation 45 of those regulations. The council sought to levy distress by the bailiffs on a BMW car of which Mr Barnes was the owner. Apparently, that car had not been licensed since 1993. Nevertheless, he had been using the vehicle for the purpose of his business. I am quoting from the case stated, and that is one aspect of the case stated which Mr Barnes says is incorrect.
4. Mr Barnes appealed to the Essex Magistrate Court under Regulation 46. He sought an order that the car could not have been validly seized on the grounds that it came within the scope of Regulation 45(1A)(a) as a vehicle that it was necessary for him to use personally in his business and also because the distress was unlawful on the grounds that the bailiffs or the council, or both, had failed to comply with the regulations in a number of respects including failing to leave copies of various documents at the time that the distress was purportedly levied.
5. Mr Barnes was successful before the lay Justices on 26th January 1996. The council, however, appealed by way of case stated and two questions were referred to the High Court for its determination. Mr Barnes lost on that appeal before Laws J who gave judgment on 4th July 1997.
6. At the heart of the current proceedings is the contention by Mr Barnes that the case stated was inaccurate and incorrect. He corresponded with the Magistrates Court frequently both before the hearing before Laws J and since. He has stoutly maintained that the case stated was inaccurate in material respects. Thus, for example, on 14th March 1996 he submitted representations in relation to the draft of the case stated in its then form, alleging that the evidence had been improperly summarised and in various other respects.
7. He applied by notice of motion to the High Court for an order that the case stated be amended. That application came before Sedley J, as he then was, on 4th October 1996. Sedley J identified one respect in which the case stated did not properly reflect the findings of the justices. He did not regard it as necessary to send the matter back to the justices. Since there was no doubt what amendment was necessary in order to meet the point that was of concern to the judge.
8. The matter next came before Jowitt J on 18th October 1996. On that occasion the hearing of the appeal by way of case stated should have taken place. It did not proceed however because the judge found that the case stated before him was inappropriate in its form and needed substantial amendment. It seems that the judge offered a suggested re-draft and the final case stated was based closely on the proposal made by the judge.
9. On 17th January 1997, the Magistrates Court wrote to Mr Barnes enclosing a draft of the revised case stated, amended as it had been in the light of the judgment of Jowitt J. Mr Barnes replied on 7th February providing the justices with his rewritten version of the case stated, that in his view correctly reflected the issues and questions that should be decided by the Court. On 7th April 1997, the justices sent to Mr Barnes the final version of the case stated as approved by them. It fell far short of meeting the points that were troubling Mr Barnes as to which he had made representations. There was no further application by Mr Barnes to amend the case stated; moreover, he was legally represented at the time the matter came on for hearing before Laws J on 4th July.
10. As I have said, Laws J decided the two questions before him in favour of the council. He did not regard it as necessary to remit the matter to the justices; he simply ordered that the complaint made by Mr Barnes be dismissed and substituted his own view for that of the Magistrates.
11. Mr Barnes continued to correspond with the justices about the case stated, and as recently as 7th May 2000, wrote a three-page letter in which he identified his complaints and reminded the justices that he had put them on notice that he was minded to apply for judicial review. The response of the justices was contained in the letter of 6th June 2000, which simply states that:

"I have carefully considered all the circumstances and I am of the opinion that it would be inappropriate for me to comment further at this stage. I therefore propose to take no further action in this matter. It will now be for you to decide how to proceed."

12. Thus, it was that Mr Barnes commenced judicial review proceedings. His application was refused on paper by Hooper J, who said that the issue of any amendments to the case stated should have been dealt with at the time. The matter had now been concluded and the court could no longer assist the applicant. Moreover, judicial review was not available to challenge the decision of Laws J.
13. Mr Barnes renewed his application before Scott Baker J, who effectively agreed with and endorsed the decision and reasoning of Hooper J. He said:

"It is not open to a dissatisfied litigant to come back, as in this case, long after the event and seek to reopen the litigation that was concluded by the decision of Laws J on 4th July 1997. Mr Barnes has cited a number of authorities to me. He says that amongst other things the decision was obtained by fraud. I see no evidence of that. It seems to me that the question of amendment of the Case Stated was a matter in respect of which, if he was dissatisfied, should have been dealt with at the time of the hearing. He was, incidentally, represented by counsel, Miss Mary Macpherson. Accordingly this renewed application is refused."

14. Mr Barnes in, if I may say so, an articulate and persuasive address to me this morning, has sought to persuade me that even at this late stage it is right to allow judicial review proceedings to go ahead to challenge the accuracy of the case stated. I am afraid that I can see no answer to the points expressed by both Hooper J and Scott Baker J. It seems to me that once the case stated proceedings had been completed, as they were finally when Laws J gave his decision and later refused to give permission to appeal, the appeal by way of case stated was at an end. That must mean that any complaints as to the accuracy of the case stated must also have been exhausted. It is, in my judgment, too late, once the appeal by way of case stated has been completed, to seek to challenge by way of judicial review the substance of the case stated itself. The substance of the case stated was indeed the subject of a challenge in any event. That culminated in the decision of Sedley J.
15. It was also the subject of a further judicial intervention on the part of Jowitt J, albeit not pursuant to an application, it seems, for permission to challenge the case stated. Accordingly, there had been two different judges who had looked at the case stated and had the benefit of argument as to its accuracy and reached conclusions about it. It is now far too late to seek to have yet a third bite at that particular cherry.
16. For all these reasons, I would refuse this application for permission.
(Application for permission to appeal refused; copy of transcript to applicant at public expense)