QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF BRIGHTON AND HOVE CITY COUNCIL
|- and -
|BRIGHTON AND HOVE JUSTICES
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Patrick Hamlin (instructed by Paul Gromett & Co) for the Interested Party
The Defendant Magistrates' Court did not appear and was not represented.
Crown Copyright ©
Mr Justice Stanley Burnton:
(a) That the Council should have proceeded by appeal by way of case stated, and that this Court could not, or should not in the exercise of its discretion, grant relief in judicial review proceedings;
(b) That the justices' decision was one that they were entitled to make in the exercise of their discretion.
The undisputed facts
"… you will note that it is our client's intention to have the question of the Liability Notice re-heard.
The situation is this: It is our client's contention that the property never was an office unit and that the Liability Order made is therefore incorrect."
(a) a copy of the second summons on which an employee of the Council (presumably Mr Walter) had noted that Mr Hamdan had telephoned on 18 February 1997 and said that he did not occupy the property, and had a property in 19 Church Road only, and would put details (presumably of his position) in the fax; and
(b) a fax dated 18 February 1997 to Mr Walter referring to a telephone call earlier that day in which Mr Hamdan referred to the second summons and stated that he did not occupy the property, and gave details of the property he did occupy.
The course of the judicial review proceedings
"As far as whether any appeal should be by way of case stated or judicial review, we were initially of the view that judicial review was the appropriate appeal procedure as we understood the challenge to be on the basis that the court failed to exercise its jurisdiction properly based on procedural impropriety. We would not however wish to make any representations beyond this and will of course abide by any ruling of the Court.
I also understand that some reference was made to the case possibly being re-opened. Our view is that it is not now appropriate to re-open the case given the disputes that still surround the case and the fact that Brighton and Hove City Council do not, as I understand it, agree to this course of action."
Did the Justices make a decision to set aside the three liability orders?
Judicial review or appeal by way of case stated?
The power of the magistrates' court to set aside a liability order
"the Court is using its common law powers to relist the matter as it appears that a mistake was made in that the Court was not informed of the contents of your letter of 17 December which requested an adjournment of both matters listed that day."
"We ….. were of the opinion that the liability order had been issued without us having the opportunity to fully consider [Pleroma's] application to adjourn. The fact remains we never had sight of or knew of the contents of the….letter….requesting an adjournment of all the accounts. The …. application to adjourn was never put before us and we were therefore unable to make a proper and informed decision in the circumstances.
As a result of this we feel that the court on 21 December ….. made an inequitable decision ….. we feel it would be unjust for the liability order to stand. In the circumstances we used our inherent jurisdiction to set aside the liability order …..
Whilst we could find no statutory authority to allow us to reconsider the original court hearing we were satisfied that we had common law jurisdiction to do so. We were satisfied that if we did not do this then it would lead to an inequitable position."
"10. What is the principle to be derived from the authorities? In my judgment it is that when a Magistrates Court purports to do something which is unlawful and in excess of its jurisdiction it is competent to correct its error. … The Justices had the competence either to grant or to refuse an adjournment. It was a matter of discretion, to be exercised judicially. However, the reality is that on 21 December they did not purport to exercise that discretion one way or the other in respect of the current demand because they did not know that Pleroma was seeking an adjournment of it. In such a situation, does it follow that they exhausted their jurisdiction upon the pronouncement of the liability order and were powerless to reopen the matter once the true position was made known to them? In my judgment it does not. Let us assume that a liability order had been made in the absence of a ratepayer and his representative because they had been involved in a traffic accident on the way to court, or that an extremely cogent written request for an adjournment had been sent to the court but had been misfiled in the court office, and in such a case the facts were only brought to the attention of the court later in the day or on the following day. It would be unfortunate and contrary to common sense and fairness if the magistrates were constrained by law to stand on their earlier decision, made in ignorance of the facts, and to have to direct the disadvantaged ratepayer to the Administrative Court and an application for judicial review. Moreover, there is no logical reason why what common sense and fairness justice require within an hour or a day should be subject to a temporal limit."
(a) the order was made as a result of a substantial procedural error, defect or mishap; and
(b) the application to the justices for the order to be set aside is made promptly after the defendant learns that it has been made or has notice that an order may have been made.
"It is only when he received the notice of bankruptcy proceedings instigated by the council that (Mr Hamdan) became aware that these matters were still outstanding."
Precisely what the justices meant by "these matters" is unclear. Mr Hamdan certainly knew of the second summons, and I do not think that it is suggested that he had reason to believe that the Council had abandoned its claim for rates. Given, however, the conclusion I have reached, it is unnecessary to speculate further on this point, or to seek clarification of the justices' reasons for finding, if they did, that Mr Hamdan made his application sufficiently promptly to justify their setting aside liability orders made so long ago.