England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		2 April 2009

1. LORD JUSTICE RICHARDS: Mr Bright renews an application for permission to apply for judicial review of a decision of the Vale of Glamorgan Magistrates' Court relating to the enforcement of a costs order against him. The costs order was made at Cardiff Crown Court in December 2006 on the conclusion of an appeal in a private prosecution brought by Mr Bright. He was ordered to pay the sum of £1,777.65 within two months. The costs were not paid. This resulted in enforcement proceedings being taken against him in the Magistrates' Court.
2. There were hearings on 29 May and 26 June 2008 which were adjourned. A substantive hearing finally took place on 31 July 2008 when the court made a committal order for a period of 45 days suspended on payment of £20 per fortnight. That is the order Mr Bright seeks to challenge.
3. The Magistrates' Court has provided a witness statement of the presiding magistrate in which he explains that at the hearing on 31 July Mr Bright objected to the involvement of one member of the Bench (a councillor against whom he said he had made a complaint) and that member withdrew. Mr Bright is described as having been agitated and argumentative but, in my view, nothing turns on that. It was stated that Mr Bright was advised to speak to the duty solicitor which he agreed to do. On returning to court with the duty solicitor, he gave evidence on oath, went through his means and made an offer of payment of £20 per week. That is plainly a mistake for £20 a fortnight.
4. The justices found that there was culpable neglect as Mr Bright had known about the costs order but had not paid it although he had the means to do so. They considered that a suspended committal order was the only way in which to ensure that payment was made. An order was therefore made committing Mr Bright but suspending the order on condition of payment of the sum of £10 a week.
5. Mr Bright's principal complaint is that he was treated as if he was an offender who had failed to pay a fine. He relies on this as somehow evidencing bias against him by the court staff and the justices. He also criticises the conduct of the proceedings and seeks to rely on this in support of a claim of bias. In my judgment, none of that helps him at all. The allegations of bias are wholly without substance.
6. But he may unconsciously have put his finger on a point of real substance when he complains of being treated like a fine defaulter. Section 41(1) of the Administration of Justice Act 1970 reads as follows:

"In the cases specified in Part I of Schedule 9 to this Act (being cases where in criminal proceedings a court makes an order against the accused for the payment of costs, compensation etc) any sum required to be paid by such an order as is there mentioned shall be treated for the purposes of collection and enforcement as if it had been adjudged to be paid on a conviction by a magistrates' court, being - (a) where the order is made by a magistrates' court, that court; and (b) in any other case, such magistrates' court as may be specified in the order."

7. The potentially relevant provisions of Part I of Schedule 9 are paragraphs 3, 4 and 4A, but they all relate to costs orders against a convicted person or a person who has been accused of an offence. The costs order made against Mr Bright was made against him not as a person convicted or accused but as the unsuccessful prosecutor. Such orders appear to belong in Part II of Schedule 9 rather than in Part I. For example, paragraph 13 in Part II refers to an order in the Magistrates' Court as to costs to be paid by the prosecutor. The equivalent provision in respect of the Crown Court is, on the face of it, paragraph 16 which refers to an order for the payment of costs other than an order falling within Part I.
8. If the order that the Crown Court made against Mr Bright is an order of the kind referred to in paragraph 16 then it is subject to the enforcement procedure specified in Section 41 2) rather than Section 41(1) of the 1970 Act. Section 42(2) reads:

"In cases specified in Part II of the said schedule (being cases where a court makes an order against the prosecutor in criminal proceedings and certain cases where an order arises out of an appeal to the Crown Court in proceedings which are not criminal) any sum required to be paid by such an order as is there mentioned shall be enforceable as if the order were for the payment of money recoverable summarily as a civil debt."

9. It is tolerably clear that the present case was approached by the Magistrates' Court on the basis that Section 41(1) applied and the costs order fell to be enforced in same way as a fine. But if the order was enforceable only as a civil debt pursuant to Section 41(2), altogether the wrong procedure was followed.
10. In my view therefore it is arguable that the justices had no jurisdiction to go down the path they took or to make an order for committal against Mr Bright. On that ground and that ground alone, I would grant Mr Bright permission to apply for judicial review of the order made by the magistrates.
11. MR JUSTICE TEARE: I agree.
12. LORD JUSTICE RICHARDS: Mr Bright, if this case proceeds to a substantive hearing, the court will need the assistance of counsel. I do not know if you will qualify for legal representation as permission has been granted. I direct that a transcript of the judgment I have just given be obtained and provided to you at public expense. You can take that along to a solicitor or a legal advice centre and get advice about the possibility of legal representation. If no representation is forthcoming, the court will need to consider inviting the Attorney General to appoint an advocate to the court so as to provide the necessary assistance. That is all we need say at the moment.
13. THE CLAIMANT: Thank you very much, your Lordships.