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
		18 July 2012

1. 1.1 MR JUSTICE SILBER:

Introduction

Mr Brandon Davis, ("the appellant"), appeals by way of case stated against a decision of Deputy District Judge Price, sitting at Leicester Magistrates' Court, on 28 July 2011. By that decision the Chief Constable of the Leicestershire Constabulary ("the respondent") successfully defended proceedings brought by the appellant for compensation under section 302 of the Proceeds of Crime Act 2002 ("the 2002 Act").

2. 1.2 The background to this case is that the respondent's officers had seized, under section 294 of the 2002 Act, a sum of money from the appellant amounting to £1,265 on 11 June 2008. The cash was subsequently retained under section 295 of the 2002 Act. Proceedings for the forfeiture of the cash were commenced on 3 September 2008 under section 298(1) of the 2002 Act. On 11 May 2010, the respondent issued a cheque to the appellant and another person, which included sums that had been retained and also a sum that had not been the subject of forfeiture proceedings. On 14 May 2010, the respondent withdrew the proceedings for forfeiture.
3. 1.3 There was subsequent correspondence between the appellant and those acting for the respondent in which the appellant sought payment of compensation which was for lost interest and consequential loss. On 20 January 2010, the respondent wrote to the appellant and another person stating a final determination had been received by the respondent, which was that no interest or compensation would be paid to the claimant . The appellant and the other person made a written "application" by way of complaint to the Magistrates' Court in a document, dated 8 March 2011. The application was not endorsed until 29 June 2011. The summons on the complaint is dated 17 May 2011.
4. 1.4 The respondent took the view that the complaint was issued outside the specified six-month time limit and asked the court to decline jurisdiction. The appellant argued that the application was not time-barred, but the District Judge in the case stated explained that section 127(1) of the Magistrates' Court Act 1980 ("the 1980 Act") provided that:

"127 Limitation of time.

(1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose."

There was also reliance on section 302(1) of the 2002 Act which states that:

"Compensation

(1) If no forfeiture order is made in respect of any cash detained under this Chapter, the person to whom the cash belongs or from whom it was seized may make an application to the magistrates' court or (in Scotland) the sheriff for compensation."

5. 1.5 The case for the appellant was that they had made an application, but that it was not a "complaint" or an "information" falling within section 127(1) of the 1980 Act. The Deputy District Judge considered that rule 11 of the Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002 ("the 2002 Rules") applied and it provided in os far as is material that:

"11.—(1) At the hearing of an application under Chapter 3 of Part 5 of the Act, any person to whom notice of the application has been given may attend and be heard on the question of whether the application should be granted, but the fact that any such person does not attend shall not prevent the court from hearing the application.

(2) Subject to the foregoing provisions of these Rules, proceedings on such an application shall be regulated in the same manner as proceedings on a complaint, and accordingly for the purposes of these Rules, the application shall be deemed to be a complaint, the applicant a complainant, the respondents to be defendants and any notice given by the justices' chief executive under rules 5(3), 6(4), 7(4), 8(4) or 10(4) to be a summons: but nothing in this rule shall be construed as enabling a warrant of arrest to be issued for failure to appear in answer to any such notice."

6. 1.6 The findings of the District Judge were that rule 11 of the 2002 rules made it clear that an application under section 302 of the 2002 Actshould be regulated in the same way as a complaint. Accordingly he found that the sixth-month time limit under section 127 applied. He also decided that the matter of complaint arose on 14 May 2010 when the forfeiture proceedings were discontinued by the police, and not as the appellant argued in January 2011 when the police informed them of the decision in relation to the complaint to them about compensation and interest. He therefore dismissed the complaint as being out of time.
7. 1.7 The questions for the opinion of the High Court are:

(1) Does section 127(1) of the Magistrates' Courts Act 1980 apply to applications for compensation under section 302 of the Proceeds of Crime Act 2012?

(2) Was I correct to rule that the date the matter of complaint arose for making an application for compensation was when the police withdrew their application for forfeiture and subsequently the application for compensation was out of time?

III Discussion

8. 1.8 The appellant, who has appeared in person, makes two submissions. He first contends that an application under section 302 of the 2002 Act is not a "complaint", with the result that section 127 of the 1980 Act did not apply. He contended first that the provisions of regulation 11(2), which, in so far as material, state that proceedings on such an application should be regulated in the same manner as proceedings on a complaint, and second that according for the purpose of the rule the application shall be deemed to be a "complaint", only relates to the circumstances after the complaint is accepted.
9. 1.9 In my view that is an incorrect approach because the use of the wording "the application shall be deemed to be a complaint" applies from the very moment it is indeed lodged. Indeed, if the case for the appellant was correct it would mean rewriting those words so that they would read:

"the application shall be deemed to be a complaint after it has been made."

That is not a permissible construction. In my view, if the draftsman of the rules had intended that an application should be regarded as a complaint from the moment it was lodged, they would have used the words which they did. Thus we are unable to accept this contention.

10. 1.10 The second submission that has been made by the claimant relates to the opening words of section 302(1) of the 2002 Act which state that "If no forfeiture order is made...". The case for the appellant in that case is that that means that it runs from the time when the police issued the appellant with a final decision.
11. 1.11 In my view that is incorrect because it is quite clear that in this case there was no question of a forfeiture order being made from the moment when the money was returned. It would be contrary to common sense for it to be held that a forfeiture order could be made after the money had been not only taken and retained, but actually returned. Therefore we reject the suggestion that the complaint arose in January 2011. In our view it arose on 14 May 2010.
12. 1.12 The consequence of that means that section 127(1) of the Magistrates Act applies. It is noteworthy that in the case of Atkinson v the DPP [2005] 1 WLR 96, this court allowed an appeal from a decision of the District Judge, which held that although the date on which an information had been laid could not conclusively be determined, and therefore might have been outside the six-month time limit, the proceedings should be stayed as an abuse of process. In staying the process Auld LJ, who gave the only reasoned judgment in Atkinson, relied on the decision of this court in Lloyd v Young [1963] Crim LR 703 in which there had been doubt on the face of the summons as to the date of the laying of the information. In that case, the court concluded on the evidence that the Justices were entitled to dismiss the information because of the doubts of the date.
13. 1.13 Applying those principles to this case the failure by the appellant to submit the complaint within the prescribed six-month time limit is fatal. In my view the time limits are deliberately strict and no provision is made for them to be extended within the 1980 Act, or elsewhere.
14. 1.14 For those reasons we answer in the affirmative the two questions, which have been raised by way of case stated, namely:

(1) Does section 127(1) of the Magistrates' Court apply to applications for compensation under section 303 of the Proceeds of Crime Act?

(2) Was I correct to rule that the date the matter of complaint arose for making an application for compensation was when the police withdrew their application for forfeiture, and subsequently the application for compensation was out of time?

15. 1.15 SIR JOHN THOMAS: Yes?
16. 1.16 MR LAW: There is an application for costs and I make it.
17. 1.17 SIR JOHN THOMAS: Let us go through it, because we are extremely concerned about it. We want to know what it is. What is £2,000 worth of perusal in this case? It is a short case stated.
18. 1.18 MR LAW: There are a number of documents.
19. 1.19 SIR JOHN THOMAS: This is a case stated. You should not have any other documents. The reason I put this to you is regarding the integrity of this bill and whether we should refer it on to the Solicitors Disciplinary Tribunal. How can you spend £2,000 looking at a case stated that is a few pages long?
20. 1.20 MR LAW: My Lord, I said that there are --
21. 1.21 SIR JOHN THOMAS: What else is there necessary to look at?
22. 1.22 MR LAW: I can go through them.
23. 1.23 SIR JOHN THOMAS: You will have to take some instructions. This is against a litigant in person and the court takes an immensely serious view. This is a short case stated. All that we have are a few documents annexed to a case stated. The bundle is extremely short. So it is £2,000 for looking at these documents. Then you have telephone calls to the client, the opponent, to others, and then you have letters to the client, to the opponent, to others. You have an attendance of £500, then you have all this drafting. What is that? Then you have travel. Where is it from? Why do you have two people travelling?
24. 1.24 MR LAW: I can answer that. That is because those who instruct me are travelling from the office to this court.
25. 1.25 SIR JOHN THOMAS: Where have they travelled from?
26. 1.26 MR LAW: It is in Leicestershire.
27. 1.27 SIR JOHN THOMAS: Why do you need two people to come? What is the advocacy fee?
28. 1.28 MR LAW: The travel I can answer. There are two items: one is travel to this court by those who sit behind me, the second is the person who travelled to the Magistrates' Court.
29. 1.29 SIR JOHN THOMAS: Why is the Magistrates' Court in front of us? What is this advocacy?
30. 1.30 MR LAW: I think that again is the Magistrates' Court.
31. 1.31 SIR JOHN THOMAS: These are costs of the Magistrates' Court and not these proceedings.
32. 1.32 MR LAW: It is in relation to these proceedings. There was a hearing in the Magistrates' Court, as I understand it --
33. 1.33 THE CLAIMANT: If I may make a point? They made a costs application in the Magistrates' Court which was entirely 100 per cent refused by the Magistrate.
34. 1.34 SIR JOHN THOMAS: You have asked for a brief fee of £3,000. This case has taken half an hour. It was obviously going to take a very short time. How can such a fee conceivably be justified?
35. 1.35 MR LAW: The fact it has taken half an hour is indicative (?) of the work.
36. 1.36 SIR JOHN THOMAS: How long did it take you to read the papers? There is one authority, a few short Statutory Instruments, and the point is an extremely simple one. Bearing in mind the gravity of what I have put to you and your solicitor - is the partner here? He has signed this bill. It simply is not right, or fair, or just that you put forward a bill of nearly £10,000 for something that has taken us under about half an hour to deal with.
37. 1.37 MR LAW: All I can say is that the fact that in the end two years after the proceedings have started --
38. 1.38 SIR JOHN THOMAS: We are concerned with the costs of the case stated, not the costs of the proceedings.
39. 1.39 MR LAW: Those matters have been dealt with since the original complaint was lodged. That is March 2011.
40. 1.40 SIR JOHN THOMAS: You had a hearing before the Justices and there was a case stated. All we are concerned with is the case stated. What I do not understand at the moment is how you could run up a bill, on a point that has taken so little, of such magnitude. Your own fee at the moment is really an outrage and we will obviously direct that our remarks be passed to the Chief Constable, but we will hear you first before we give a judgment on this matter. Regarding your own charging, and seeking to recover this from a litigant in person, we will hear from you when we have finished the case involving the Solicitors Disciplinary Tribunal, which comes next. You better go out and take some instructions. Where is the partner?
41. 1.41 MR LAW: I believe in Leicester.
42. 1.42 SIR JOHN THOMAS: Your solicitor behind you can take instructions and find out. It is just simply wrong. You oppose the order for costs?
43. 1.43 THE CLAIMANT: Entirely. The fact that they lost the costs order in front of the magistrates, and they haven't told you that and reapplied seems very wrong to me, indeed, my Lord.
44. 1.44 SIR JOHN THOMAS: We will here the next case while they find out why they justify these costs. You can come back then.
(Adjourned)
45. 1.45 MR LAW: I do have answers, I hope. In relation, first of all, to the schedule of the solicitors' costs, this relates to work from 6 July 2011 to today. It therefore includes a Magistrates' Court hearing, ie the application for the compensation claim on 28 July 2011, which explains the --
46. 1.46 SIR JOHN THOMAS: That should not have been included. That is an error.
47. 1.47 MR LAW: I understand that. It was clearly put forward in error on the basis that this court would be able to award those costs as well.
48. 1.48 MR JUSTICE SILBER: They had been refused below, had they not?
49. 1.49 MR LAW: My instruction made by telephone is that no application was made below.
50. 1.50 SIR JOHN THOMAS: The costs that we deal with are the costs of the case stated. That is what explains these huge figures.
51. 1.51 MR LAW: It does. I can only apologise.
52. 1.52 SIR JOHN THOMAS: What about your fee?
53. 1.53 MR LAW: My fee, my Lord --
54. 1.54 SIR JOHN THOMAS: It is a matter between you and the solicitors, but it seems completely extraordinary to seek this from a litigant in person.
55. 1.55 MR LAW: Could I try and explain it?
56. 1.56 SIR JOHN THOMAS: Of course you can.
57. 1.57 MR LAW: It is based upon an hourly rate of £250 an hour. I spent 12 hours on this case since those instructing me [inaudible] last year. The hourly rate in relation to work in the High Court is actually less than that set out by the regulations for civil recovery.
58. 1.58 SIR JOHN THOMAS: That is how you get there? That is how you get to the £3000: you spent 12 hours on it.
59. 1.59 MR LAW: I can explain why and how. First of all, I was reading the papers and I know the bundle is small but the total papers I received was 100 pages, though not very long: background matters and correspondence, and all the rest of it. Having read the papers I advised simply on procedure that the solicitor should follow in this court, matters relating to the lodging of the skeleton, time limits and whether it should be before a Divisional Court or not. That was on 24 November.
60. 1.60 On 15 March I spent 30 minutes reviewing the papers in terms of listing and what had been going on. I spent 15 minutes look at correspondence and emails from my instructing solicitor throughout the period.
61. 1.61 On 20 June I advised what should go into the appeal bundle. That took me 30 minutes and I communicated that to my solicitors. I spent four hours preparing the skeleton argument and the authorities bundle, in that it includes legal research in respect of matters which may not be very helpful to your Lordships today. The remaining time, as negotiated between my clerk and my solicitor, relates to the fact that this was listed originally for one and a half hours. Allowance has been made for my appearance at court for up to half a day and my time for preparing the case for this morning in terms of --
62. 1.62 SIR JOHN THOMAS: We see.
63. 1.63 MR LAW: That is the best I can do.
64. 1.64 SIR JOHN THOMAS: Mr Davis, these costs are not being pursued against you.
65. 1.65 THE CLAIMANT: Yes, I understood that.
66. 1.66 SIR JOHN THOMAS: I think it is very important your solicitors and yourself realise that putting forward costs of this magnitude in a simple case do not do the profession any credit on either side. Your solicitors should have appreciated that this court is all we are concerned with. That is why we were so staggered at the cost of all these documents. If they have just made an error thinking that all the stuff that was done below can be claimed here, then that is just a terrible mistake and should not have been made. Secondly, as regards your own costs I think you do have to look at the proportionality of what you seek to recover. We say no more and are very grateful to you. We decided that we would interrupt our current case so you did not have to wait anymore.
67. 1.67 MR LAW: May I draw up a short order on behalf of the case?
68. .68. THE CLAIMANT: Thank you for your time to consider the matter, your Lordship.