QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN|
UPON THE APPLICATION OF
AL'S BAR AND RESTAURANT LIMITED
THE CHIEF EXECUTIVE AND REGISTRAR OF COMPANIES
THE SECRETARY OF STATE FOR TRADE AND INDUSTRY
Mr Philip Jones (instructed by the Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) for the Defendants
Mr Adrian Francis (instructed by the Treasury Solicitor (as above) appeared as
Advocate to the Court)
Hearing dates: 4th-5th December 2002
Crown Copyright ©
Mr Justice Lightman:
"Civil penalty for failure to deliver accounts
(1) Where the requirements of section 242(1) are not complied with before the end of the period allowed for laying and delivering accounts and reports, the company is liable to a civil penalty.
(2) The amount of the penalty is determined by reference to the length of the period between the end of the period allowed for laying and delivering accounts and reports and the day on which the requirements are complied with, and whether the company is a public or private company, as follows...
Length of period Public Private company company
Not more than 3 months £500 £100
More than 6 months but not
more than 12 months £1,000 £250
More than 6 months but not
more than 12 months £2,000 £500
More than 12 months £5,000 £1,000
(3) The penalty may be recovered by the registrar and shall be paid by him into the Consolidated Fund.
(4) It is not a defence in proceedings under this section to prove that the documents in question were not in fact prepared as required by this Part."
i) POW was a charity and Al's Bar was its subsidiary;
ii) both had limited means. (It was not however suggested that payment of the penalties would occasion hardship);
iii) one of the two directors of POW was ill at the time; and
iv) the delay in delivery to the Registry was in one case only 11 days and in the other 14 days.
Construction of Section 242A(1)
ARTICLE 1 OF THE FIRST PROTOCOL TO THE CONVENTION
"Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it seems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
ARTICLE 6 OF THE CONVENTION
NATURE OF DISCRETION
"The general rule is that anyone who has to exercise a statutory discretion must not 'shut his ears to an application' (to adapt from Bankes LJ on p.183). I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say – of course I do not mean to say that there need be an oral hearing. In the present case the respondent's officers have carefully considered all that the appellants have had to say and I have no doubt that they will continue to do so. The respondent might at any time change his mind and therefore I think that the appellants are entitled to have a decision whether these cylinders are eligible for grant."
"The formation of policies is a perfectly proper course for the provision of guidance in the exercise of an administrative discretion. Indeed policies are an essential element in securing the coherent and consistent performance of administrative functions. There are advantages both to the public and the administrators in having such policies. Of course there are limits to be observed in the way policies are applied. Blanket decisions which leave no room for particular circumstances may be unreasonable. What is crucial is that the policy must not fetter the exercise of the discretion. The particular circumstances always require to be considered. Provided that the policy is not regarded as binding and the authority still retains a free exercise of discretion the policy may serve the useful purpose of giving a reasonable guidance both to applicants and decision makers. Nor is this a point which can be made solely in relation to the Secretary of State. In a variety of administrative functions, in addition to planning local authorities may devise and implement policies of their own."