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
		3rd October 2009

1. MR JUSTICE KING: This is a renewed application for permission to apply for judicial review. It was refused on the papers by Bennett J. I have heard oral representations on behalf of the claimant by Mr Burrows and from Miss Olley on behalf of both defendants.
2. I refuse this renewed application. I do not consider that there are any arguable grounds in respect of the decisions identified in the claim form. There are three grounds of challenge put forward. I shall deal with each separately.
3. The background to this matter is that on 23rd January 2008 the Barnstaple Magistrates made a liability order for some £41,630.03 against the claimant pursuant to section 33 of the Child Support Act 1991 ("the Act"). The first ground of challenge is against the decision of the first defendant, the magistrates, identified in these terms in paragraph 7(1) of the grounds and reasons in support of the claim:

"(1) Of the first defendant and of their Barnstaple, North Devon justices ('BMC') to refuse on 12th March 2008 to set aside the liability order made in the absence of the applicant on 23rd January 2008."

4. At the root of this challenge is the refusal of the magistrates to adjourn the case on 23rd January 2008. Prior to 23rd January 2008, solicitors — the present solicitors acting for the claimant — wrote to the clerk to the justices seeking an adjournment. It reads as follows:

"We have been consulted by the above named Mr C in connection with a summons returnable at your court tomorrow at 10.00 am.

For various reasons it was not possible for us to take Mr C's instructions until 17th January 2008 when the writer also contacted the CSA to ask for a breakdown of the arrears figure.

We have still not been able to obtain full instructions from Mr C since then as to how the arrears have arisen, whether there is in fact any liability and what the background to that liability is (if there is any liability).

We have asked Mr Wild of the CSA for an adjournment tomorrow. He says that he does not agree.

It is impossible for us to attend tomorrow on behalf of Mr C. We therefore ask for an adjournment so we can take full instructions from Mr C as to the background to this matter.

In these circumstances we do ask that the absence of ourselves and of Mr C be excused.

We have sent a copy of this letter to Mr Wild."

5. The magistrates in their acknowledgment of service set out that on 22nd January 2008 the North Devon Magistrates' Court replied by telephone to the solicitors' letter, stating that the court did not agree to an adjournment and that Mr C would have to attend the court. Mr C, however, chose not to attend the court, but rather to go to work. He did not attend himself to renew the application for an adjournment. Nonetheless, it is clear from the acknowledgment of service that on 23rd January 2008, before considering the application for a liability order, the magistrates did consider whether or not to grant an adjournment.
6. I should add that Mr Wild, who was the officer acting on behalf of the CSA, had himself, on 18th January 2008, written to the magistrates in these terms:

"A liability order application in respect of Mr C has been listed for hearing at Barnstaple Magistrates' Court on Wednesday, 23rd January 2008 at 10.00 am.

On Monday, 14th January 2008 I received a letter sent to me by recorded delivery by the occupier of the address held for Mr C. This enclosed the summons and associated paperwork. The letter advised that Mr C not at [the] address and gave a forwarding PO Box address to write to.

However on 17th January 2008 I received a telephone call from Mr C's solicitor acknowledging receipt of the summons. The solicitor asked for an adjournment of the case. I explained that there has only ever been one assessment in force since 1997 and his client had not made any payments. Therefore I could not agree to an adjournment. I faxed a copy of the account breakdown that was sent to his client on 31st October 2007 and to the court with the application.

I also asked for confirmation of his client's home address. The solicitor after speaking to his client refused to state his client's address.

Given the above, I would like to state that if any adjournment request is received at the court from Mr C or his solicitor prior to the hearing, that I am objecting to that adjournment and request that Mr C and his solicitor be instructed to attend the hearing to explain [their] position and make any request for adjournment in person. It is my view that ample time has been allowed for Mr C's solicitor to take instructions on the proceedings as his client was in attendance at the time of the telephone call and therefore able to state his position in time for the hearing. In my view under the circumstances of this case any adjournment request is merely delaying the inevitable and therefore the hearing should proceed."

7. What the magistrates say in their acknowledgment of service is as follows:

"On 23rd January 2008 the court considered all the documents on the file. Mr C and his legal representative did not attend. A message stated that Mr C was going to work. The Child Support Agency objected to the adjournment. The justices refused the adjournment stating: 1. Mr C decided he would work today rather than attend court; 2. there is a lengthy history of non-payment; 3. the CSA made an interim assessment in 1997; 4. no indication is given as to why Mr C could not give instructions to his solicitor."

8. In my judgement, there is no arguable ground put forward in this application to show that the decision of the magistrates to refuse an adjournment was unlawful, irrational or unfair. It was a considered and reasoned decision which is not in itself capable of a successful challenge on judicial review grounds.
9. But, of course, the decision under challenge is not directly the decision to refuse the adjournment; it is the decision to refuse, on 12th March 2008, to set aside the liability order made in the absence of the applicant. As far as that is concerned, in my judgement no arguable ground has been put forward to demonstrate that if, which is dubious, the Magistrates' Court had the power to set aside the liability order made on 23rd January 2008, their refusal to do so, as contained in a letter undated but conceded to be 12th March 2008, was unlawful, irrational or otherwise open to challenge on judicial review grounds. It seems to me to have been a proper decision made considering all the factors, which is wholly unimpeachable.
10. The material letter of 12th March 2008 from the clerk to the justices to the solicitors for the claimant reads, in the final paragraph, as follows:

"The Magistrates' Court has no statutory power to re-open a decision to make a liability order. Consideration has been given to case law which deals with the issue of re-opening cases by magistrates in particular R (on the application of Mathialagan) v Southwark London Borough Council and another [2004] EWCA Civ 1689. Here the point is made that 'where there has been a clear mistake by the court itself going to the basis of its jurisdiction, or the fairness of the proceedings, where the resulting decision would clearly be quashed on judicial review, it may be open to the court to correct the mistake of its own motion.' The court has canvassed the views of the CSA who reply that no mistake has been made, the liability order was properly made and the agency opposes the re-opening of the case. The court notes that if the case were to be re-opened the CSA would wish to challenge that decision in the higher courts. The court is therefore in the position that if the decision is allowed to stand your client will apply for judicial review and if the court re-opens their decision to make a liability order the CSA will apply for judicial review. It has therefore been decided that the order made on 23rd January will not be set aside in the Magistrates' Court."

11. In my judgement, the decision not to set aside the liability order has not been shown to be impeachable on any arguable ground. On the basis of the decision in Mathialagan, I regard it as dubious whether the magistrates had any power to set the order aside, even if they had wanted to. However, even if they did have the power, it seems to me they were acting properly within their discretion to refuse to exercise it.
12. I make clear that there has been no arguable ground put forward to me to demonstrate that the liability order itself, made under section 33 of the Act, was unlawfully made. I have looked carefully at all the material laid before me and I can see no basis for any argument that it was unlawful having regard to the terms of section 33 and the evidence which was laid before the magistrates.
13. I conclude, therefore, that there is no arguable basis for the first ground of challenge. Indeed, in the course of argument, Mr Burrows, properly accepted that he was in an impossible position as regards this ground and he abandoned his application for permission as against the Magistrates' Court. However, I have dealt with this aspect of the challenge in some detail to demonstrate that this was a concession properly made.
14. The second decision under challenge — and it is the only effective aspect of this application remaining — is that of the second defendant, the Secretary of State, to seek a liability order and to "press for it" where it was known that the applicant had only just obtained legal representation and/or, alternatively, the decision to refuse to set aside or to agree to set aside the liability order. The alternative way of identifying the decision is not expressed in the claim form. Mr Burrows, on behalf of the claimant, sought leave to amend the claim in order to introduce it. I will deal with this alternative de bene esse. I do not give leave to amend because in my judgement there is no merit in the proposed amendment.
15. In my judgement, there is nothing in the material before me to demonstrate any arguable grounds of challenge against the decision of the Secretary of State to seek a liability order in this case or to press for it when it was known the applicant had only just obtained legal representation or to refuse to agree to set it aside. Nothing has been laid before me to indicate any arguable ground that the section 33 liability order was improperly made or was unlawfully made. I refuse permission.
16. I should say that the third ground of claim has been abandoned. The third ground was against the second defendant, the Secretary of State, and alleged a failure correctly to calculate the underlying arrears, which include an interim maintenance assessment, which failure was said to be continuing. That was formally abandoned before me.
17. MISS OLLEY: My Lord, I am grateful. I do of course note the hour of the day, but I have an application for the second defendant's costs. I do not have any application for the first defendant's costs, even though they came along to defend the first ground that was then abandoned. Does your Lordship have the schedule of costs which was prepared on behalf of the Secretary of State?
18. MR JUSTICE KING: I may do.
19. MISS OLLEY: Well, I have a spare copy. (Handed).
20. MR JUSTICE KING: Thank you.
21. MISS OLLEY: The sum claimed is a total of £2,120.
22. MR JUSTICE KING: As a matter of principle, does the court have the power to award costs on a permission hearing beyond the costs of the preparation of the acknowledge of service?
23. MISS OLLEY: In exceptional circumstances the court can.
24. MR JUSTICE KING: Where do you get that from?
25. MISS OLLEY: From the Mount Cook case. It does say in exceptional circumstances you can be awarded the costs of attendance at the hearing. Otherwise your Lordship is quite correct; it is generally just the costs of the acknowledgement of service.
26. MR JUSTICE KING: You will have to remind me, the lateness of the hour notwithstanding, what Mount Cook said would amount to exceptional circumstances.
27. MISS OLLEY: That was not particularly defined. I am going to ask for the costs of attendance today, in view of the way the case has unfolded. I am afraid I am instructed to ask that the claimant's representatives pay the costs claimed in the schedule. In the alternative, I ask that the claimant pay the costs in the usual way.
28. MR JUSTICE KING: What do you say are the exceptional circumstances?
29. MISS OLLEY: This was a particularly unmeritorious claim. There was nothing to even indicate what was supposed to support the grounds put forward and two of the grounds were abandoned without much fight in the course of the hearing. In respect of the remaining grounds, that was clearly so out of time it ought to have been obvious, but it was necessary to at least try and explain why a decision made in October 2007 or before was only being challenged in May 2008. So, in my submission, it was a chaotic application on that basis. There was no sensible basis on which the second defendant could have agreed to set aside the liability order.
30. It is quite clear to everyone that there are enormous arrears and it is also clear that the claimant has never made any attempt to pay anything. He has only supplied the necessary information to convert the interim maintenance assessment into a full one after the agency obtained a third party debt order. So at least he has been galvanised into action now. He was sent the first assessment in 1997. So, in my submission, no reasonable representative could have thought that it was appropriate to challenge a liability order made in such circumstances, and it is clear from the documents and the chronology that it was the claimant himself who precluded himself from going along to argue against the making of the order.
31. The representatives themselves appear to have delayed contacting the justices and therefore the time for making an appeal by way of case stated, which is actually the correct route to challenge a magistrate's order, went by. There is no explanation why that time was taken. So the fact that the claimant said he had to resort to judicial review is entirely down to him, and even then he has delayed and not acted promptly. He purports to challenge the decision of 12th March 2008. Actually, the underlying problem is an order made on 23rd January 2008. So even if it was 12th March, he was out of time by one day. It was actually 23rd January and he is almost 5 months out of time.
32. My very respectful submission is that everyone has wasted their time this morning, not in the least because (inaudible) to spend 1 hour making up a bundle, most of which is actually already before us. I think that cost in itself about £460 of public money while we all just sat here waiting. So I do submit that the circumstances are exceptional.
33. MR JUSTICE KING: What do you say, Mr Burrows?
34. MR BURROWS: Well, my Lord, the Mount Cook decision is referred to on page 1547 of the White Book. I do accept that in exceptional circumstances the court can make an order for costs. I am going to have to take this in two stages: one is the order for costs against Mr C and the second is an order for costs against me.
35. MR JUSTICE KING: Unfortunately I have a 2007 volume only.
36. MR BURROWS: I hope it is in the same note. It is note 54.12.5.
37. MR JUSTICE KING: I will find it. I will just read it. (Pause). Yes?
38. MR BURROWS: Well, my Lord, as my Lord can see, the general rule, which in fact is in the practice direction, I think it is the practice direction at paragraph 8.6:

"Where the defendant or any party does attend a hearing, the court will not generally make an order for costs against the claimant".

As my Lord says, it is generally in respect of the summary grounds.

39. My Lord, I suppose it must be a matter for the court to take a view as to the hopelessness of the claim and whether or not that justified the Secretary of State being represented in court. My Lord, I hope that would be the ground.
40. Now, my learned friend, for the first time, has referred to October 2007 as being the date of the decision. No time point had been taken until her skeleton argument arrived in my office yesterday afternoon. Points were taken about whether this should be dealt with by case stated or by judicial review. I had taken the view, on the basis of Mathialagan, that judicial review was appropriate. Plainly permission has not been granted, my Lord, but I hoped the court would find that this would still be the appropriate forum.
41. If 12th March is the date, 12th March to 12th May is not 3 months and a day; it is 2 months and a day. Miss Olley's maths are a month out, rather crucially, in that area. But, my Lord, if the decision was October 2007, I would ask to make further submissions to you.
42. What is said, and I suppose this is the second aspect, going to the wasted costs order, in the context of the case being dealt with, is that no reasonable representative — that means me, in the context — could have considered that there was a reasonable case. Now, my Lord, I was not given any notice that there might be a wasted costs application until last night, when -- I do not know whether you have been sent a copy of the letter that was sent to me:

"We formally notify you that the Secretary of State is considering applying for a wasted costs order in this case. You are persisting with a claim stating that the Secretary of State's supposed failure was continuing..."

(Quotation not checked).

Then they refer to another case which is proceeding in this court.

"The claim is out of time. The appropriate avenue of appeal was the Magistrates' Court by a case stated. There is no particularisation of the allegation that the arrears had not been calculated properly and you keep raising the issue of the IMA (inaudible) very, very recently allowed this to be considered by finally supplying the sought after information."

(Quotation not checked).

43. Of course, it is not me that provides the information; it is Mr C. It goes through me.
44. MR JUSTICE KING: All right, Mr Burrows.
45. Is there anything else you want to say, Miss Olley? I understand the thrust of what you are saying.
46. Notwithstanding the strength of the submission made to me by the Secretary of State that I should find exceptional circumstances here to justify the costs order now being sought, I do not. I will simply make the ordinary order. However, will order costs in favour of the Secretary of State against the claimant in relation to the preparation of the acknowledgment of service, which I summarily assessment in the sum of £1,080, as set out in the schedule.
47. Is that including elements of VAT?
48. MISS OLLEY: No, my Lord.
49. MR JUSTICE KING: Does that have to go on?
50. MISS OLLEY: No.
51. MR JUSTICE KING: I will simply make an order for costs against the claimant in the sum of £1,080.
52. MISS OLLEY: My Lord, I am grateful.
53. MR JUSTICE KING: Thank you both.