England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		13th June 2008

1. MR JUSTICE SIMON: This case raises a short point on the circumstances in which an appeal notice under Section 217 of the Town and Country Planning Act 1990 is effected. The facts in brief summary are as follows: the claimants are joint owners of property known as Whitefield House, Prestwich. On 15th November 2006 Bury Metropolitan Borough Council, which I shall refer to as "the Council", served the claimants with an Untidy Land Notice pursuant to Section 215 of the Planning Act. It required the claimants to carry out various works to improve the property by reference to its effect upon the amenity of the area. The Notice was to take effect on 15th December 2006, unless an appeal was lodged before that date. The claimants decided to undertake the required work, but in order to protect their position, in the event of a dispute as to the sufficiency of the work, also decided to appeal against the Notice.
2. On 28th November 2006 the claimants' solicitors wrote to Bury Magistrates' Court, which is the second defendant in these proceedings, indicating that they wished to lodge an appeal against the Notice under Section 217. The letter also indicated that they hoped to resolve the matter amicably. It is unnecessary to say anything further about the letter, since it is accepted that if the letter had been received by the court it would have constituted a complaint and an effective and timely Notice of Appeal under Section 217.
3. The letter of 28th November 2006 was sent by first class post and appears at some stage to have been lost. It is unclear whether it was lost in the post and misdelivered, or whether it was lost within the court premises. In any event, the court has no record of the receipt of the letter, a matter to which I shall return later in this judgment.
4. So far as the appeal process is concerned, nothing happened for a number of months. The claimants rely on the fact that they wrote to the Council on 14th February 2007 telling them that the required works were carried out and that they received no response. The Council rely on the fact that the claimants never told them that they had lodged an appeal. On 12th July 2007 the Council informed the claimants that it considered that the property was still in an unacceptable condition and that the claimants were to be interviewed under caution. In response the claimants' solicitors informed the Council in a letter dated 23rd July 2007 that the claimants would now seek to proceed with their appeal. By a letter of 10th August 2007 the claimants informed the court that the claimants wished so to proceed.
5. The history can now be picked up by reference to the evidence of Julie Lever, a solicitor with the firm of Latimer Lee, who act on behalf of the claimants. I quote from paragraph 8:

"8. On 16 August 2007 I telephoned the [court] and spoke to a lady by the name of Dawn. I asked her what was happening with the appeal. She said that she was unsure of the procedure since we appeared to be appealing against something which had not yet been before the magistrates. She asked me to ring back later when she had made further inquiries. I subsequently spoke to a Tracy Inkinson, who advised me that the appeal would now be dealt with.

9. Not having heard anything further, on 22 August 2007 I telephoned Ruth Salem, who I understood to be the acting head of legal services at the Magistrates Court. She informed me that the matter was with their legal advisors and that I would hear further by the end of the week. The following day I spoke with David Furber, a legal adviser, who confirmed that he and his colleague Cathy Towers were drafting a complaint. We discussed the grounds of appeal pursuant to Section 217 of the Act and he confirmed that the appeal would now proceed and that we would receive a preliminary hearing date within the next few days. 10. The complaints drafted by the Court arrived shortly thereafter dated 30 August 2007. The Claimants duly signed them and I returned them immediately to the court."

6. On 10th September 2007 the Council wrote saying that no valid appeal had been received in time. On 19th September 2007 a senior legal adviser to the court informed the claimants that the court "had no record" of the receipt of the claimants' appeal letter of 28th November 2006 and that the court was therefore unable to proceed with the appeal. Nevertheless, the court informed the claimants that it would list the matter.
7. Before the matter could be listed, on 28th November 2007 the Council wrote to the claimants enclosing criminal summonses alleging non-compliance with the original Notice. Both these matters came before the Bury Magistrates' Court on 19th December 2007. It appears that representations were made and that the clerk to the justices, representing the first defendant, then advised the magistrates in open court that "there was no extant appeal". The court then announced that it had been "advised" that no appeal against the Section 215 Notice had been made; and, on that basis, the court could not allow the claimants' application to stay the criminal summons.

The present proceedings

8. The claimants seek to review both the legal adviser's decision that no appeal was extant and the magistrates' decision not to allow an adjournment for full legal argument. I also take them to wish to review the decision made in substance following the advice.

Legal argument

9. Both sides rely on the House of Lords case Manchester Stipendiary Magistrates ex parte Hill [1983] 1 AC 398, which makes clear that a complaint is made (and that an appeal is therefore launched) when it is received at the court, including the court office. For the claimant Mr Fraser-Urquhart submits that the matter is clear: the claimants sent a letter and the law should presume that the letter has arrived. While accepting there is no exact analogy, he relies on a number of statutory provisions and cases which he submits point to the existence of such a presumption.
10. For the Council Mr Kolvin makes two types of submission: first, the submission contained in paragraph 4 of his skeleton argument that "the letter was not received". He continues in paragraph 17:

"Where, as here, the senior court officials have no trace of the document and advised the justices accordingly... a finding that there was no extant appeal cannot be subject to a public law challenge."

11. His second submission is a more refined submission based on the recent evidence as to the steps taken to locate the letter. He submits that on this basis there is no point in sending the matter back since the magistrates would be bound to reach the same conclusion.
12. It seems to me that Mr Kolvin's first submission begs at least two questions. First, why does it follow that, because there is "no trace" of the letter in the court records, the letter was not received? It is not uncommon experience that documents do not end up where they should, even in the best run businesses. In a court which deals with large numbers of documents, it is certainly possible that documents or letters may be mislaid or misfiled. In the present case it was a single letter not attached to any current case, and the significance of it may not have been appreciated. That much is clear from paragraph 8 of Miss Lever's first witness statement.
13. Secondly, why was the crucial issue as to whether the letter was "received" determined by advice by a court official? It is clear that the magistrates did not carry out any personal inquiry themselves, nor was any question asked which might have revealed the possibility that the letter had been lost within the court building.

Conclusion

14. In my judgment, this type of investigation of facts must proceed on the basis of presumption and inferences. In this case the reasonable inference is that a letter which is posted will have been received. It seems to me that the case of Levy v Secretary of State for Work and Pensions [2006] EWCA Civ 890, relied on by Mr Kolvin, is an example of the type of case where the statutory language does not permit an inference of this type, in a case where it was common ground that the relevant letter did not arrive. But in a case where it is common ground that the letter was sent, the appropriate inference is that it was received. This is not a presumption of law; it is a presumption based on the application of common sense. It is likely to be a particularly potent inference when the consequence of a finding that a letter was not received is that the writer of the letter may be exposed to criminal prosecution and penalty.
15. In Rockall v DEFRA [2007] 1 WLR 2666, Latham LJ, having reviewed the authorities, said this at paragraph 26:

"26. It seems to me that the essential concept running through all these authorities is that the information should be made available to the justices, or the clerk to the justices, within time. This will be so in relation to postal delivery when it can properly be inferred that it has been received..."

16. In circumstances where it is common ground that the letter was sent, the proper inference was that the letter had been received. It might have been that the inference could be displaced, but in the present case the magistrates were simply advised as a matter of law that no complaint had been made in time. It appears that this was on the imperfect basis that there was no record of the letter.
17. In his skeleton argument Mr Kolvin submits that the decision of the justices cannot be challenged as perverse. That, in my judgment, is not a sufficient answer to the point. The question is not whether the decision of the justices was perverse but whether it was wrong in law. However, whichever way one looks at it, the advice that because the letter could not be found no appeal was lodged in time, as a matter of law, was not advice upon which they could properly act. Accordingly, I am satisfied that the decision was flawed.
18. Mr Kolvin had a fall-back position based on very recent evidence from Christine Smith, a court support team leader at Bury Magistrates' Court. She describes the various steps which have recently been taken to locate the letter, all to no avail.
19. I was minded at one stage to refuse the claim on the basis that if the justices had had the evidence of Christine Smith before them, they would have been likely to have found that the letter had not been received and, therefore, that this was not a proper invocation of discretionary powers in public law. However, I have been persuaded by Mr Fraser-Urquhart that there are deficiencies in this evidence. It appears that if the letter were filed anywhere it would have been retained in the pre-court section in a miscellaneous file. It does not appear that this has been searched. I am doubtful as to whether the assertion "I can therefore be certain that no such letter was delivered to the Court" is incapable of being tested.
20. In the light of this, I propose to quash the decision and remit the case to the magistrates with a different legal adviser so that they can reconsider the matter in the light of this judgment. They must examine the matter anew with the assistance of the parties and, if necessary, with such legal advice as they require. They will bear in mind that the letter has the consequence of protecting the claimants against prosecution, and they will doubtless wish to take into account that the court staff may feel defensive about the loss of a document. All that will be a matter for them. Whether all this is worth it, is a matter for the parties.
21. MR FRASER-URQUHART: My Lord, I am obliged. Might I first of all be so bold as to make one point of detail in your Lordship's judgment. It is entirely my fault. Your Lordship has been misled by something I wrote in my skeleton argument. At paragraph 8 of my skeleton argument I indicated that the Notice was due to take effect on 26th December. Your Lordship has recorded that in judgment. In fact the correct date is 15th December.
22. MR JUSTICE SIMON: Very well. Thank you very much. I will change that in the judgement.
23. MR FRASER-URQUHART: I am obliged. I would ask for my costs in the this matter, please. The position on costs is as follows. Your Lordship will be aware, no doubt, that there are very strict limits upon the circumstances in which one can obtain costs against the justices in judicial review proceedings. In effect, it is only if the case is very clear and they have been offered the opportunity to sign a consent order and the magistrates have refused to do so. In those circumstances, the costs of a hearing can be recovered from the magistrates. In this case, although such an offer of a consent order was made, and was refused, I do not think I can properly contend that the matter was so clear that the justices ought to have signed. Therefore, I seek my costs from the interested party who, as your Lordship will have seen from the chronology of these events, has been central at every stage in driving these matters to where they are today. That is my request as a matter of principle.
24. MR JUSTICE SIMON: You say that if you are not seeking your costs from the defendant, there is no bar to seeking them from the interested party?
25. MR FRASER-URQUHART: There is no bar, absolutely not, and the facts amply bear out that that is where the liability ought to lie, in my submission. A schedule of costs has been provided.
26. MR JUSTICE SIMON: Shall we deal with the matter of principle first of all?
27. MR KOLVIN: My Lord, I do not contest the matter of principle.
28. MR JUSTICE SIMON: No, thank you very much. I make an order that the interested party bear the costs.
29. MR FRASER-URQUHART: As to the matter of the amount of the costs, obviously this is a matter which is appropriate, if your Lordship thinks fit, for summary assessment. A schedule of costs has been prepared.
30. MR JUSTICE SIMON: Was it included with the papers, because I did not see it if it was?
31. MR FRASER-URQUHART: Here we go again. It was faxed to the court 2 days ago, I am told. I am sure a copy can be provided to your Lordship.
32. MR JUSTICE SIMON: Well, I do not have it. Have you had proper notice of it?
33. MR KOLVIN: Apparently it was sent through yesterday. My instructing solicitor is unfortunately ill, so I was given it just before lunch. Unfortunately, it is quite a large bill, and so I did have a remark or two to make about it.
34. MR JUSTICE SIMON: Yes, well the question is whether it is convenient to deal with this now or whether it would be sensible to allow you to go out and discuss the matter for 10 minutes.
35. MR KOLVIN: My difficulty is, my instructing solicitor being ill, I do not have authority to settle costs. It is a £13,500-bill.
36. MR JUSTICE SIMON: Shall I have a quick look at it? Nobody has it?
37. MR KOLVIN: I have it. I have scrawled on it.
38. MR JUSTICE SIMON: That is all right. You do not mind me seeing a scrawled copy?
39. MR FRASER-URQUHART: No.
40. MR KOLVIN: (Handed). In essence, Mr Fraser-Urquhart's fees you will see from the last page, and the solicitors' fees are the balance. In our submission, they do seem quite large for a case of this compass.
41. MR JUSTICE SIMON: Let us have a look. (Reads). That sounds fair comment, yes.
42. MR KOLVIN: The other difficulty is that Mr Latimer, who is the claimant, it is in fact his firm, so he would not have been paying this bill and he will not be paying VAT on the bill and so forth. So we are in a little trouble -- I am, I should say, personally.
43. MR JUSTICE SIMON: Well, I think the sensible thing for me to do is for me not to say anything further about this, but for you to try and agree the matter between yourselves. I will simply say that I regard some of these costs as being on the high side and it is likely that on any detailed assessment they would be reduced. If necessary, I will direct that if you cannot agree this, you will refer the matter to me with your comments on this in 21 days, and your comments 7 days thereafter.
44. MR FRASER-URQUHART: As I understand my learned friend is not in a position to agree anything today in any event, it may be that that is the course that we will be compelled to adopt anyway.
45. MR KOLVIN: Well, my Lord, in the circumstances my Lord, in my respectful submission, is rightly indicating he does not want to summarily assess today, so the correct order would be to be assessed if not agreed. The only question then is whether it would be assessed summarily by your Lordship or assessed by a Costs Judge.
46. MR JUSTICE SIMON: Which do you suggest, now that you have put in mind the possibility of someone else assessing it? I find that rather attractive.
47. MR KOLVIN: My Lord, shall we do that, because in reality I am sure that once experienced solicitors sit down with this, they will make a sensible agreement.
48. MR JUSTICE SIMON: Yes, I shall direct that the costs be assessed if not agreed.
49. MR KOLVIN: Thank you very much, my Lord.
50. MR JUSTICE SIMON: Thank you both for your submissions.
51. MR FRASER-URQUHART: Thank you, my Lord.