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
		18th March 2009

1. MR JUSTICE MITTING: In October 2008 there were good grounds for believing that 5 Talleyrand House, Lilford Estate, London SE5 was, in the colloquial phrase, a disorderly crack house. Accordingly, the police in the area issued and served a closure notice on the premises and applied to the Magistrates' Court for a closure order. The application was heard on 23rd October 2008 and the closure order made for three months.
2. The police contemplated the renewal of the order. The claimant, Samantha Longato, the previous occupier of 5 Talleyrand House, had by that time instructed solicitors who applied to the Camberwell Green Magistrates' Court for a representation order to permit her to be represented by them on the anticipated application to extend the closure order. On 12th January 2009 the court granted the representation order but, it seems, did not serve it upon the solicitors until 30th January 2009. On 15th January 2009 Superintendent Wilson authorised the making of an application to extend the closure order.
3. On 21st January 2009 Police Constable Cornish made the application to District Judge Zani, who granted the extension. The claimant was not present at that hearing and, it is common ground, had never been given notice of it. She applies, by judicial review proceedings, to quash the extension granted on 21st January 2009. On those simple facts a number of questions of procedural law arise of no little difficulty.
4. The foundation for the application to extend the closure order is section 5 of the Anti-Social Behaviour Act 2003 which provides:

"(1) At any time before the end of the period for which a closure order is made or extended a constable may make a complaint to an appropriate justice of the peace for an extension or further extension of the period for which it has effect . . .

(3) If a complaint is made to a justice of the peace under subsection (1) the justice may issue a summons directed to --

(a) the persons on whom the closure notice relating to the closed premises was served under subsection (6)(d) or (e) or (7) of section 1;

(b) any other person who appears to the justice to have an interest in the closed premises but on whom the closure notice was not served

requiring such person to appear before the Magistrates' Court to answer to the complaint.

(4) If the court is satisfied that the order is necessary to prevent the occurrence of disorder or serious nuisance for a further period it may extend the period for which the order has effect by a period not exceeding three months."

Subsection (9) contains provision for the giving of notice when a summons is issued:

"(9) If a summons is issued in accordance with subsection (3) . . . a notice stating the date, time and place at which the complaint will be heard must be served on --

(a) the persons to whom the summons is directed if it is issued under subsection (3);

(b) the persons mentioned in subsections 6(c) and (d) . . .

(c) such constable as the justice thinks appropriate (unless he is the complainant);

(d) the local authority (unless they are the complainant)."

5. The statutory procedure, therefore, envisages that an application to renew a closure order will be made by complaint and that, upon the making of a complaint, a summons may be issued directed to, amongst other people, the former occupier of the premises.
6. The 2003 Act does not purport to oust or modify the general procedural requirements of the Magistrates' Courts Act 1980 or of the Magistrates' Courts Rules 1981. Section 55 of the 1980 Act specifies what is to happen if a person against whom a complaint is made is not present when the court hears it:

"The court shall not begin to hear the complaint in the absence of the defendant . . . unless either it is proved to the satisfaction of the court, on oath or in such other manner as may be prescribed, that the summons was served on him within what appears to the court to be a reasonable time before the hearing or adjourned hearing or the defendant has appeared on a previous occasion to answer to the complaint."

Rule 99 of the 1981 Rules provides how a summons may be served:

"(1) Service of a summons issued by a justice of the peace on a person other than a corporation may be effected --

(a) by delivering it to the person to whom it is directed;

(b) by leaving it for him with some person at his last known or usual place of abode; or

(c) by sending it by post in a letter addressed to him at his last known or usual place of abode . . .

(8) Where this rule or any other of these Rules provides that a summons or other document may be sent by post to a person's last known or usual place of abode that rule shall have effect as if it provided also for the summons or other document to be sent in the manner specified in the rule to an address given by that person for that purpose."

Thus a summons in the ordinary course may be served by delivering it to a person, by leaving it with some person at his last known or usual place of abode, or by sending it by post in a letter addressed to him at his last known or usual place of abode, or by posting it to an address given by him for the purpose of service.

7. The object of these provisions is self-evident. It is to ensure that those against whom orders may be made are given proper notice of the application and of the hearing, and accordingly an opportunity to make their views known to the District Judge or Magistrates who will decide it.
8. In this case the evidence establishes beyond argument that not only was service not proved to have been effected as required by Rule 99, it was proved positively that it had not been. PC Cornish was asked by the District Judge whether notice of the application to extend had been given to the applicant. He said that the applicant's whereabouts, according to the information available to his offices, were unknown and that he thought that she may well have been sleeping rough. He said he had no means of notifying the claimant of the application to extend.
9. It seems that neither section 55 of the 1980 Act nor Rule 99 of the 1981 Rules were drawn to the attention of the District Judge or considered by him when he agreed to conduct the hearing in the absence of the claimant.
10. In these proceedings she contends that the District Judge should not have heard the application in her absence given that he knew that the requirements of Rule 99 and section 55(3) had not been complied with. That seems to me to be an unanswerable argument. Unless the 2003 Act expressly qualifies or ousts section 55 and Rule 99, those provisions apply. They must be fulfilled in the case of an application to extend a closure order, just as they must be fulfilled in other civil proceedings before the Magistrates' Court.
11. The only possible answer to that would be if, on the making of a complaint to an appropriate Justice, it was not incumbent on the court to issue a summons. There are two circumstances in which a Justice is not required to issue a summons. The first is where he considers that the claim is ill-founded or abusive when, in the exercise of a judicial discretion, he can decide not to put the person against whom the complaint is made to the trouble of responding to court proceedings. The second is where the person against whom the complaint is made is already before the court, as happens, for example, when someone is arrested for breach of the peace and a complaint is made which results in the making of an order binding that person over. In such circumstances, the object of the rules would have been achieved by other means, and it is not suggested on behalf of the claimant that if she had been at the hearing at which the order was extended, she would have had any legitimate ground for complaint arising out of any failure to serve the summons on her in accordance with Rule 99. That concession is clearly right.
12. The question which arises in this case is not by what means a hearing may properly be constituted when a person against whom a complaint is made is present before the court, but in what circumstances a court may hear a case in the absence of that person. The answer is to be found and found only in section 55(3) of the 1980 Act. Where, as here, a complaint is made seeking an extension of a closure order, it is incumbent on the court to issue and serve a summons in the manner prescribed by Rule 99 of the 1981 Rules. If it does not then it will fetter its ability to hear the complaint in the absence of the person against whom it is made.
13. I add by way of a footnote to that ruling that one means by which the procedural difficulties into which this case fell might have been avoided is by the claimant's legal representatives notifying the court under Rule 99(8) that their professional address was the address at which any summons should be served.
14. The next question which arises is whether, in the light of the history that I have recited, I should exercise my discretion to quash the District Judge's decision to extend the closure order. For that purpose, it is necessary to consider whether the proceedings were a nullity or merely tainted by irregularity.
15. I am quite satisfied that they were not a nullity. If they had been a nullity then the claimant could, without risk of prosecution for an offence under section 4 of the 2003 Act, simply have walked back into the premises and resumed her occupation. In those circumstances, any arrest by a constable for what would appear to be an offence under section 4 might be open to challenge as itself unlawful. I am quite satisfied that Parliament did not intend that, as a result of procedural irregularity, an order which could otherwise have been made should be a nullity.
16. But on any view, the circumstances which I have described were irregular and did result in real injustice to this claimant. It is clear that she intended to resist the extension of the order. She had instructed solicitors to that end, and then obtained a representation order to permit her to be legally represented. Simply to shut her out without giving her the opportunity of being heard, whatever the underlying merits of her case, was, in my view, clearly unjust and should be put right.
17. When the Magistrates' Court was informed of the claimant's wish to participate in proceedings after the order had been made, the court suggested that the District Judge would reconsider the application, thereby giving the claimant an opportunity to be heard. Mr Godfrey for the interested party, the Police, submits that that offer should result in my making no order to quash the extension.
18. It raises the question what power a Magistrates' Court has in civil proceedings to put right errors which do not result in its order being a nullity. In Liverpool City Council v Pleroma Distribution Limited [2002] EWHC 2467 Admin, Maurice Kay J (as he then was) noted, as is the fact, that there was no express statute comparable to that existing in criminal proceedings (section 142 of the Magistrates Courts Act 1980) to put right errors made in civil proceedings. He reviewed the authorities which suggested that where the error resulted in the order being a nullity, the Magistrates' Court did have a power to put matters right but decided the case before him on the premise that the order was not a nullity but merely one which should not have been made. He held that in a case where there had been an application unknown to the court for an adjournment, the court had not exercised the discretion which it had to determine whether or not to adjourn:

"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 . . . 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 . . .

In my judgment it does not need a statutory provision to enable them to put right such a perceived omission."

19. Those observations were doubted by Waller LJ in R (on the application of Mathialagan) v London Borough of Southwark [2004] EWCA Civ 1689, in which, at paragraph 37, he did not question the proposition that where the order resulting in the error was a nullity, the court might set it right, but did expressly state, having considered Maurice Kay J's judgment, that:

" . . . it would be wrong for Magistrates to regard themselves as having power to set aside their own decisions, merely because of the existence of grounds which might support an application for judicial review."

That observation seems to me to apply here with force. Parliament has enacted a statutory procedure for the making and renewing of closure orders. Unless it is followed, difficulties will arise. What, for example, is to happen if a Magistrates' Court decides to rehear an application for an extension? Does it quash its original order in the period between the quashing, if it decides to do so, of the original order and the rehearing of the application? Are the premises to be open again? Can it be assumed that Parliament has given to the Magistrates' Court an inherent power which it is only granted expressly in the case of criminal proceedings?

20. These are difficult questions. It is not necessary for me to determine them because, in the exercise of my discretion whether or not to quash the order, one of the factors which I am entitled to take into account, and do, is that the claimant, who has been the subject of a serious procedural injustice, should not be put to an election to pursue a course which might or might not result in the quashing of the original order and her case being heard on its merits. She has a clear and, for reasons which I have explained, unanswerable argument that the order should not have been made. Why should she be deprived of the ordinary remedy available in such circumstances: the quashing of the order?
21. I am conscious of the likelihood that if I quash the order there may be an adverse impact on neighbours and the public generally, but I am also conscious of the fact that that impact will only endure for the few weeks remaining before the statutory power to extend the order would in any event have expired. My judgment is that the claimant is entitled to have the order quashed and I so order.
22. MR WESTGATE: My Lord, I am grateful. In the claim form the order sought is that the extension be quashed. I think that must follow from your Lordship's judgment. The relief sought also included an application for a declaration that the closure order expired. I do not think that is necessary.
23. MR JUSTICE MITTING: You have effectively what you sought and that is what you are entitled to. Apart from an order for costs, nothing more.
24. MR WESTGATE: That was my next application. I would ask for our costs.
25. MR JUSTICE MITTING: Mr Godfrey, I do not think you can resist that, can you?
26. MR GODFREY: No, my Lord.
27. MR JUSTICE MITTING: Do you want an order for public funding assessment?
28. MR WESTGATE: Yes.
29. MR JUSTICE MITTING: Public funding assessment of the claimant's costs and an order that the interested party pay those costs to her, to be the subject of detailed assessment if not agreed.