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
		29 November 2016

1. MR JUSTICE OUSELEY: This is a renewed application for permission to apply for judicial review of the decision of His Honour Judge Gosnell sitting in the County Court at Leeds. By that decision, on 23 February 2016, the judge refused permission to the claimant in these proceedings, the defendant in the underlying proceedings, to appeal against the order of Deputy District Judge Healey, dated 7 January 2016. The judge marked the application as "Totally without merit".
2. The claimant, who is Wrightway Trouble Shooting Limited, but has been represented by its Company Secretary, who has asked to be called "Wesley", could therefore not pursue his application to an oral hearing in the County Court.
3. The matter begins this way: Wrightway Trouble Shooting failed (for reasons which need not concern us) to file the required return on the company accounts at Companies House within the required time. That led to the Registrar of Companies issuing a civil penalty notice for £150. That sum was the amount set out in the statutory instrument made for the purposes of section 453 of the Companies Act 2006, entitled The Companies (Late Filing Penalties) and Limited Liability Partnerships (Filing Periods and Late Filing Penalties) Regulations 2008 (SI2008/497). The relevant regulation, 5, sets out the length of period of delay, and under two headings, Public and Private Company respectively, sets out the penalties which are due.
4. For present purposes I need do no more than say that for a period which did not exceed a month, the penalty for a private company was £150. That is represented - and it is important for Wesley's case - by a pound symbol followed by the numerals 150.
5. What happened next was that Companies House sent a letter, entitled "Late Fining Penalty. Final reminder" to Wrightway Trouble Shooting Limited, setting out two sums that were due, totalling £1,650 under the heading "Balance Outstanding", with a pound sign in square brackets, below which were the numerals 1,500.00 and 150.00, totalling the amount overdue as "£1,650.00." It then said under the heading "Remittance Advice, "Please send your cheque (payable to Companies House) to...", and there then followed an address.
6. On 22 April 2014 the claimant sent a letter to Companies House referring to what it described as an established fact that the pound sign prefix had no legal status, and that Companies House had expressly asked for payment by way of cheque and that therefore, what it required was 1,650 private sector company units of credit because Companies House had waived its right to demand notes in cash and there was attached to the letter:

"An effective and valid tender of the amount of the debt by way of Credit Draft cheque number 000048, dated 22 April 2014, for the amount of £1,650.00 credit."

7. This was followed then by a notice:

"CH's failure to respond and specifically rebut the aforementioned claimed fact within 14 days shall constitute a CH acceptance of the tendered amount of satisfaction for the invoice amount of £1,650.00."

8. What was attached to the letter was a document which looks a bit like a cheque drawn on a bank but is not. It is headed, "Wrightway Trouble Shooting Limited", and its address is given. It says, "Pay Companies House", and the penalty reference is given. In the box just above the heading: "Amount of pounds credit in words. Pence credit as in figures", it provides in words for £1,650. There is no pound sign other than what it says in the box below.
9. It is marked "Account Payee". The document which appears like a cheque is dated. There is the box for the money to be put in in figures, "£" with an underlining, "1,650.00 credit. For and on behalf of the Company", signed by the Company Secretary. Below that there is the signed credit draft number, company number and account number.
10. The Late Filing Penalties Appeals Officer wrote on 1 May to Mr Wright, acknowledging receipt of the cheque and confirming that the late filing penalties are now fully paid. It did not take long, however, for Companies House to realise that the cheque was not a cheque in any normal sense at all, not being one that could be drawn, paid into a bank and the money paid by a bank from a bank account, and its bank refused to handle it. Thereupon, proceedings were issued in the Small Claims Court and they came before the district judge.
11. Wesley has on a number of past occasions sought to run arguments relating to the significance of the pound sign. He had two points, as it seems to me, that were related. The first point he had was that the pound sign had no legally defined meaning and the second point was that he was entitled to present the document he did, which is no more than a promise by the payer to pay the money and not a means of actual transfer of the payment in the way a cheque drawn on a clearing bank would be, and accordingly he said, "I am no longer indebted."
12. The fact, as the district judge pointed out, is that Companies House was entitled to £1650 and thus to be £1650 richer, with Wrightway Trouble Shooting Limited being £1650 poorer, but neither of those circumstances has actually occurred. So far the penalty remains unpaid. This was all set out in the judgment of the Deputy District Judge. He refers to the letter of 17 September from Companies House, saying:

"The bank was unable to cash the credit draft as it is not an acceptable form of payment. An inspection of your bank statement should confirm this."

13. The solicitor for Companies House explained that this was a Crown debt and it had to be paid in pounds sterling. The judge dealt with the argument from the company that the pound sign had no real meaning. The judge said there was no issue that the debt was owed: it had never been paid and the debt was still outstanding. He said it is a Crown debt which was payable, that there was no reason to doubt that it was not due. He was not satisfied that the defence of tender had been made out; Companies House would only accept payment in certain forms and a credit draft of the type offered was not one of those. They were entitled to stipulate payment in certain forms, not least because the statutory instrument refers to the pounds symbol. The judge was satisfied that the credit draft was not a cheque. It was prepared by the defendant company; it was not drawn on a banker and there was no evidence that the defendant was a banker, notwithstanding the somewhat vague definition of that term. This was no more than an IOU; it was not, he thought, likely to be a bill of exchange.
14. Accordingly, as I have said, he came to the decision he came to, the debt was ordered to be paid. Judge Gosnell effectively agreed.
15. The judgment, he said, was clear, comprehensive and clearly correct. The money was due; defence of tender could not be relied on; the statutory instrument was clear that the debt had to be in pounds sterling; it was not a cheque that had been used; it was not a bill of exchange and the appeal, he found, was totally without merit.
16. After a hiccup in the direction of the Court of Appeal, proceedings were begun by way of judicial review. Robin Purchas QC, sitting as a Deputy High Court Judge, on 24 October 2016 refused permission, one, on the grounds that the claim was out of time; two, applying the principles of R (on the application of Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR, and R (on the application of Strickson) v Preston County Court [2007] EWCA Civ 1132.
17. Before me, Wesley, appearing for the Company, has provided helpful notes which I have read and which he has read to me. The same two points appear. The first is: what is the significance of the pound sign? He has endeavoured to bring this point within the framework of Sivasubramaniam by arguing that for the court to hold that it means pounds sterling when there has been no legislative definition of it, is for the court to create law which it does not have jurisdiction to do.
18. That argument, with respect to the courteous advocacy of Wesley, is entirely misconceived. The pound sign is a common sign. It means pounds sterling. It has always been recognised in connection with money as meaning pounds sterling. It does not necessarily mean that the money has to be paid over in legal tender, but there can be no doubt what the amount due was.
19. Second, he has sought to say that there was some form of proof of his point or some form of payment through the document which he has referred to as a credit draft. In the absence of any legal definition of the £ symbol, he was entitled to proffer that.
20. In my judgment, one simply needs to move away from theory and philosophy about money. There is a debt that is owed which can be paid in legal tender or it can be paid by means of an order to a bank to pay the money out of a bank account. That is what is meant by payment by cheque, and a simple promise by the debtor to pay is not payment. It simply leaves the person to whom the money is owed no better off than they were before. No means effective to bring about the transfer of the money was provided. This was simply a device in order to enable the company to pursue points that it has done before, muddling the question of whether the pound sign means legal tender or physical cash, or whether it is simply a symbol of the value of the debt that has to be paid, with the obligation to make actual payment to clear the debt.
21. One thing is certain: he has not paid and he must pay. All the rest is neither here nor there. He has referred to other judgments, suggesting that they have in some way supported at least part of his argument, when rejecting its essence; in other words, they gave him the opportunity to present the argument that the pound sign has no particular significance. In my judgment, that is a misreading of what Tomlinson LJ held on 15 August 2013 and what Sir Stanley Burnton held on 5 July 2013 and what has been held in all the other cases in which he has sought to run this point.
22. I accept that Wesley has sought to bring the argument within the framework of Sivasubramaniam. The points he has raised simply have no merit, let alone are they points which could give rise either to an absence of pre-Anisminic jurisdiction or a significant failure of justice, effectively constituting its denial.
23. I believe that either Wesley Wright or Wrightway Trouble Shooting Limited has been the subject of an extended civil restraint order in the past as a result of these arguments. I do urge Wesley to consider very carefully before pursuing this matter any further if he is able to, because I suspect the result will be a further ECRO or GCRO. I do not propose to make one at present but I do hope that Wesley takes to heart what I have said. I appreciate that he has strong feelings about this argument but those strong feelings do not justify litigating those points in this way. This application is dismissed.
24. I appreciate I have not dealt with the extension of time. If there had been merit in his arguments I may well have decided to extend time, because as his witness statement of 10 August says, he did get papers before the court just about within three months but it was toing and froing with the court office that caused the significant delay. I would have been minded if he had a substantive point to have let that time go, in the absence of argument from the other side, but that is not the position.