England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/03/2006

Mr Justice Calvert-Smith :

1. This is a renewal of an application by the claimants for permission to bring proceedings for judicial review against the defendant, the South Norfolk District Council. Permission was refused on the papers by Ouseley J on 17^th January 2006.
2. Relations between the claimants and the defendant have been acrimonious for some time and these proceedings are but one of a number of disputes before the courts. The original claim in these Judicial Review proceedings centred on the decisions of the defendant to embark upon and later take listed building enforcement action against the claimants in respect of their property, Reydon House, Harleston in Norfolk, together with a decision by the defendant, repeated at various times, not to disclose certain material to the claimants under the provisions of the Audit Commission Act 1998 or the Freedom of Information Act 2000.
3. For the purpose of his renewed application the 1^st claimant, who appeared in person to represent himself and the 2^nd claimant, has restricted himself to the last of these – accepting that the question of listed building enforcement action is not an appropriate issue for these Judicial Review proceedings. The 1^st claimant's decision so to restrict himself was prompted to a large extent, as he conceded, by the observations of Ouseley J in refusing the original application. In the skeleton argument prepared by the claimants for this hearing, wide-ranging allegations of corruption generally and of offences under the Prevention of Corruption Acts 1889-1916 were made in an attempt to show a base motive for the alleged failures of disclosure by the defendant. During the hearing it was agreed that the issue in the case concerned the reasonableness of the decisions and the availability of other avenues of redress short of Judicial Review and not whether, if unreasonable, they were motivated by misunderstanding or malice.
4. The Claimant's submission in summary was this. Although the defendant had to a great extent either complied with his requests or indicated that they could not be complied with without charge to the defendant, the contention that some of the documents sought are not accounting documents within the terms of the Audit Commission Act is wrong in large part and, in any event, any documents which do fall outside the definitions within Section 15 of the Audit Commission Act 1998 should have been disclosed under the Freedom of Information Act 2000.
5. Section 15 (1) of the Audit Commission Act 1998 reads:

"(1) At each audit under the Act, other than an audit of accounts of a health service body, any persons interested may –

(i) inspect the accounts to be audited and all books, deeds, contracts, bills vouchers and receipts relating to them, and

(ii) make copies of all or any part of the accounts and those other documents."

6. On 5^th August 2005 by Email the 1^st claimant asked for – among many other things:

"1. Deeds associated with land transferred to South Norfolk Housing Partnership – including deeds to land retained by Council and other lands transferred. This in particular relates to land registered at HM Land Registry as NK299021 (attached). You will possibly be aware that there is potential for confusion – and copies of all legal advice associated with any transfer;

2. All Official Certificates of Search related to land identified as NK299021;"

7. On 18^th August the Council replied in respect of 1 & 2 above

"I refer to your e-mail dated 5 August 2005 seeking information in regard to the 2004/05 statement of accounts. As you are aware the Audit Commission Act 1988 (sic) defines the information which can be released, and I have applied these definitions in the same manner as I applied them in respect of the 2003/04 accounts. In essence, the legislation enables any member of the public to examine any items of account relating to 2004/05 which then may be subject to challenge. Any requests for information which are not items of account are not provided. There are alternative mechanisms which should be attempted in these instances.

I provide responses to your questions as follows:

1. The release of this information does not sit within the definition of what can be released as part of the process for inspecting the accounts.

2. The release of this information does not sit within the definition of what can be released as part of the process for inspecting the accounts."

8. On 22^nd August the 1^st claimant emailed the Council repeating the requests in respect of Item 2.

On 23^rd August the Council replied applying the criteria relevant to the Freedom of Information Act 2000.

"Dear Mr Carruthers,

Mr Radford has supplied you information relating to your queries about the 2004/5 Accounts, and he will be dealing with the subsequent queries raised in you email yesterday.

However, some information that you requested is not covered by the Audit Commission Act 1988 (sic), and we would answer your queries as follows:

1. Deeds associated with land transferred to South Norfolk Housing Partnership. This request is too wide to be met under the "free" time limit specified by the Lord Chancellor, and will incur a charge well in excess of £450, possibly running into thousands of pounds. Please confirm that you are prepared to pay before we deal with the matter further. You may consider cutting down the scope of your request to a particular property or piece of land.

2. All official certificates of search related to land identified as NK229021. We have no searches relating only to the land in this title you specify."

The suggestion that the information required be obtained on payment of a fee has not been acted upon.

9. The Council replied to the email of the 22^nd on 26^th August providing the complete answer to a particular question relating to the original questions 1 & 2.

"I refer to your e-mail dated 22 August 2005 seeking information in regard to the 2004/05 statement of accounts. As you are aware the Audit Commission Act 1988 defines the information which can be released and I have applied these definitions in the same manner as I applied them in respect of the 2003/04 accounts.

I provide responses to your questions as follows……

3. With regard to Bullock Fair Close, no interest was transferred to South Norfolk Housing Partnership. It is shown on the asset listing I provided to you with my previous letter. It can be found at reference HAR035A (public convenience) and HAR036A (car park)."

10. On 29^th August the 1^st claimant sent a further e-mail threatening Judicial Review proceedings.

This was answered on 1^st September 2005.

"Dear Mr & Mr Carruthers,

Thank you for your e-mail dated 29 August, 12.42hrs addressed (among others) to various Council officers, not including myself), enclosing as attachment a letter prior to claim for judicial review. This follows fast on the heels of your letter of claim attached to your e-mail dated 12 August to which I responded in my letter dated 24 August rejecting your intimated claim and putting you on warning as regards costs.

So far as your further e-mail dated 29 August with attached further letter of claim is concerned, I would apply the Council's existing rejection to that claim too, for the reasons already given.

I would simply remind you that in two letters dated 18 and 26 August 2005, the Council's s151 Finance Officer, Mr Radford, has admitted your request to inspect/receive copies of certain documents pursuant to your right to inspect the Accounts for the year 2004/05, in respect of some matters, and rejected it in relation to other matters – for the reasons given in those letters.

In respect of those matters rejected by Mr Radford regarding inspection of the Accounts, the Council is obliged, under the Freedom of Information Act, to treat those matters as a request for information under the Freedom of Information Act. It had done so by e-mails from the Information Rights Officer, Mrs Hobbs and as further explained by the Principal Solicitor, Mr Ward. An appeal lies to the Information Commissioner as regards any information refused to be disclosed by the Council under the Freedom of Information Act."

11. The defendant submits that:

i) The council's stance on the question of whether the deeds and other documents relating to land charges or listed building status are documents within the purview of section 15(1) (above) was a reasonable one, and

ii) That the claimant has not exhausted his rights under the Freedom of Information Act 2000 in that the refusal by the Council's Freedom of Information officer to grant free access under that Act is amenable to appeal both within the Council and to the Information Commissioner.

12. In refusing permission Ouseley stated at para 5:

"The District Council has supplied some of the material sought in relation to its accounts and refused to supply other material. I see no arguable error of law in that decision."

I agree and reject the application on the same grounds – namely those set out in the Acknowledgements of Service and summarised above.

At paragraph 6 he dealt with the Freedom of Information Act 2000 issue:

"The Council then says that it considered whether or not that other material should be supplied under the Freedom of Information Act and concluded that it should not; letters 18^th, 26^th August and 1^st September 2005. There is a right of appeal to the Information Commissioner in respect of that refusal. That remedy should be pursued if there is anything in the point. I would not wish for one moment to be thought to be suggesting that there is; but the remedy if warranted lies there and not the court."

13. Having heard the parties I have come to the same conclusion. This renewed application for permission must be dismissed.

Costs.

14. At paragraph 8 Ouseley J dealt with the then wide-ranging nature of the interim relief sought and his opinion that that application was "in very large part" an abuse of the process of the court.

At paragraph 10 he said this:

"I warn the Claimants that there may be exceptional circumstances in this case which may justify an award of costs in favour of a Defendant or interested Party upon an oral renewal of the permission application. This is because of the volume of papers which they have placed before the Court, hindering rather than advancing its consideration of the matter, and the ill-structured and wide-ranging nature of its claims, which do not shy from serous allegations of dishonesty. I do not propose to make an award of costs at this stage in respect of the AoSs. If there is an oral renewal application, that is a matter which the Judge hearing that case can consider. There is an obvious case for that application for costs to succeed at that stage and the Claimants can reply orally to the application."

15. In the result having announced my decision at the conclusion of the hearing I said that I would prepare a judgment so that if necessary the claimants could deal with the question of an award of costs in the light of it and an indication of what I proposed to do in that respect. The defendant submits that there are circumstances to justify the award of costs of the renewal hearing following the case of R (Mount Cook) v Westminster City Council [2003] EWCA Civ 1346. In this case it is submitted that:

a) Ouseley J made it very clear that the claim is unarguable.

b) The Claimants persisted after being alerted to the hopelessness of the claim.

c) The Claimants persisted after being alerted as to the possibility of costs of the renewal hearing being awarded against them.

d) The Claimants have now accused, without foundation, the Defendant of corruption in their Skelton Argument.

e) The Claimant persisted, without foundation, in alleging that the Audit Commission and the Information Commissioner have confirmed that the Defendant has acted wrongly in refusing access to the documents sought in August 2005.

f) The Claimants resurrected an allegation of irregularity in respect of the VAT issue in their Skeleton Argument when they had previously stated 'We believe the VAT payments are correct'.

g) The Claimants have sought to abuse the process of judicial review by persistently referring to matters immaterial to the claim.

h) The large volume of documents, the ill structured, wide ranging and unclear nature of the claim, the serious allegations of dishonesty and corruption, and the misrepresentations of fact have made attendance at the hearing necessary and more costly.

16. I find that all these contentions are correct – subject to the caveat made earlier that in renewing the application the claimants limited the scope of their application so far as the subject matter was concerned albeit that they widened it considerably in terms of the allegations contained within the skeleton argument. In view of the clear message they received in the detailed Observations of Ouseley J I have no doubt that the claimants should pay the costs of filing the Acknowledgment of Service and the appearance at this Court. The schedules of costs submitted together amount to the sum of £3460. I propose to make an order in that sum.