England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/12/2015

Mrs Justice McGowan :

1. The Claimant is a Vexatious Litigant under a Civil Proceedings Order dated 12 February 1990. By virtue of s.42 (3) Senior Courts Act 1981. He therefore needs the leave of the High Court to bring these proceedings. On 19 March 2015 he was given leave by Cobb J to commence judicial review proceedings in the following terms,

"…..I am nonetheless satisfied that the application for permission for judicial review – even if it were limited to the issue of liability for the costs of his application for a liability order – would not be an abuse of process, and there are reasonable grounds for the application on this basis." (emphasis added)

2. The application for permission to review the refusal to state a case was granted, in part, by William Davis J on 21 May 2015. Permission was granted to bring proceedings only to review the making of the order for costs and whether they were

"reasonably incurred in obtaining the liability order"

BACKGROUND

3. The applicant had previously sought permission under s.42 (3) to apply, under s.111 Magistrates' Court Act, to the Highbury Corner Magistrates' Court to state a case in respect of a liability order. On 11 August 2014 District Judge Newton issued a liability order against him on the application of the London Borough of Camden to enforce payment of unpaid council tax charges in the sum of £137.02. On 28 August 2014 Sir Stephen Silber granted permission to bring proceedings in the Magistrates' Court asking the court to state a case. That application was commenced on 1 September 2014; it was refused by DJ Newton on 2 October 2014. She issued a Certificate of Refusal to State a Case.
4. The proceedings before the court are therefore,

(i) The hearing of the application in relation to the costs order, for which permission has been granted and

(ii) A request to apply for renewal of the application for permission to challenge the decision not to state a case on the liability order.

5. The Magistrates' Court, as is customary, does not appear and are not represented in these proceedings. Unfortunately the London Borough of Camden, who is the Interested Party, has chosen not to appear or make representations in writing. Their contribution, at least by way of written submission, would have been of assistance.
6. The matter arises out of the service of a summons, dated 11 June 2014, on the Claimant for unpaid Council Tax in the sum of £137.02 and a total of £95 costs. The Claimant lives in the London Borough of Camden and, in general terms, is therefore liable to pay any council tax charges properly levied by that local authority. There are a number of skeleton arguments and supplementary skeleton arguments in the case. There are many long and intricate arguments about the proper levying of the council tax and whether service had been properly affected. Fortunately it has not been necessary to determine those points. The decisions required can be distilled into the two questions formulated above.

COSTS ORDER

7. The tangled web of these, and many other allied proceedings, has been resolved by Andrews J in R (on the application of The Reverend Paul Nicholson) v Tottenham Magistrates and the London Borough of Haringey [2015] EWHC 1252 (Admin). The Claimant in this case was closely involved in those proceedings which dealt with the same point in relation to another London borough.


"1. This case raises issues of significant public interest to both council tax payers and local authorities relating to the costs sought by local authorities with regard to the enforcement of unpaid council tax.

2. Regulation 34(7) of the Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992 No.613) ("the Regulations") provides that when granting a liability order the court shall make an order reflecting the aggregate of the outstanding council tax and "a sum of an amount equal to the costs reasonably incurred by the applicant in obtaining the order.

"In England there is no legislative cap on those costs; in Wales there is a proviso that the costs "including those of instituting the application under paragraph (2), are not to exceed the prescribed amount of £70."

3. The issue at the heart of this claim is what is required, prior to making an order for the costs claimed, to satisfy the court that the requirements of the Regulation are met, i.e. that those costs have been reasonably incurred by the local authority in obtaining the liability order.

4. The claim began as a challenge by the Claimant, then acting in person, to the refusal by Tottenham Magistrates on 20 December 2013 to state a case in respect of an order for costs in the sum of £125 made against him on 2 August 2013 in favour of the London Borough of Haringey ("the Council") under Regulation 34(7). However, at the oral hearing of the permission application, in line with the approach suggested by Simon Brown LJ in Sunworld Ltd v Hammersmith and Fulham LBC [2000] 1 WLR 2102 (referred to later in this judgment) Green J granted permission to bring judicial review of the substantive decision by the Magistrates to award the Council costs in that sum against the Claimant. By that time, the Claimant had secured representation by leading and junior counsel via the Bar Pro Bono Unit. I am most grateful to Ms Mountfield QC and Ms Le Santo for the assistance they have provided to the Claimant and to the Court on this occasion.

5. As is quite often the case in claims of this nature, the court whose decision is under challenge has chosen not to make submissions or to instruct counsel to appear at the hearing. It has been left to the Interested Party; the Council in whose favour the impugned decision was made, to decide whether or not to defend it. In this case, the Council instructed Ms Henderson to appear and to resist the application. I am also grateful to her for the assistance that she has provided. Given the nature of the public interest in the issues in this case, this Court would be at a severe disadvantage if it did not have the opportunity to hear (and test) the legal argument opposing the grant of relief as well as the legal argument supporting it. Indeed, had the Council taken a different stance it might have been necessary to appoint an amicus curiae."

8. It is unnecessary and unhelpful to do more in this case than to follow the cogent reasoning of Andrews J to the same conclusion.

"61. This application for judicial review of the decision taken by the Magistrates must therefore succeed. I was told that since the hearing the order for costs against the Claimant has been withdrawn, but that does not render the proceedings academic; as I have said, it raises issues of wider public importance. Had the order not been withdrawn, I would have quashed it. Since it has been withdrawn, I will declare that the order was unlawful, because:

(i)The Magistrates did not have sufficient relevant information before them to reach a proper judicial determination of whether the costs claimed represented costs reasonably incurred by the Council in obtaining the liability order;

(ii)The Magistrates erred in law by failing to make further inquiries into how the £125 was computed and what elements it comprised; and

(iii)The Claimant was denied a fair opportunity to challenge the lawfulness of the order before it was made, by reason of the failure to answer his requests for the provision of information as to how the sum of £125 was arrived at."

9. Accordingly the claim succeeds and the order of the Magistrates' Court in relation to costs is declared unlawful and quashed

RENEWAL

10. On the request to bring the application to renew the permission application it has been possible to cut through the forest of submissions and resolve the point in the Claimant's favour. Interpreting Cobb J's order to the Claimant's advantage it can be said that he was given permission under s. 42(3) to bring the initial challenge on the wider view, which is not limited to the costs point alone. Accordingly he does not need further permission to apply to renew and the renewal application was heard on that basis.
11. The substantial question raised in lengthy written submissions and oral argument can be resolved without recourse, as the court was invited, to R v Willesden Justices ex parte Utley [1947] 1 KB 397 and other authorities on criminal sentencing. Regulation 34(7) of the Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992 No.613) provides that when granting a liability order the court shall make an order reflecting the aggregate of the outstanding council tax and a sum of an amount equal to the costs reasonably incurred by the applicant in obtaining the order.
12. Accordingly it is not necessary to form a view on the liability of the Claimant in the sum of £137.02. That is a matter which the Interested Party local authority must decide. The order made was the aggregate of the costs and the debt, the costs part of the order falls away, so must the balance which went to make up the aggregate. The liability order is also quashed.