QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
B E T W E E N :
| PLATINUM CROWN INVESTMENTS LTD
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|NORTH EAST ESSEX MAGISTRATES COURT
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|(1) COLCHESTER BOROUGH COUNCIL (2) CYRIL THOMAS
MR M CROSKELL (instructed by Anthony Gold Solicitors) appeared on behalf of the Appellant.
MISS V JEMPSON (instructed by Legal Department, Colchester Borough Council) appeared on behalf of the Respondent.
THE INTERESTED PARTIES were not represented.
Crown Copyright ©
LORD JUSTICE TREACY:
Act. Paragraph 10 of the case stated is in these terms:
"10 Based on the submissions of the parties we made the following findings of fact, which were not disputed:
(a) Platinum Crown Ltd, the original name of the defendant on the informations and summons, was that of a defunct company which was no longer in existence at the time the informations were laid.
(b) When the summons was delivered to Platinum Crown Ltd, Mr Thomas, director of Platinum Crown Investments Ltd, accepted receipt of the summons on behalf of the latter.
(c) Mr Thomas had corresponded with the Council using different variants of the company name which all included the name 'Platinum Crown'. Indeed the name 'Platinum Crown' was often used as the signature within such correspondence."
"11 We found that:
(a) Based on the principle set out by Glidewell J. in Marco (Croydon) Ltd v Metropolitan Police  Crim LR 395, where the wrong person had been summonsed, amendment was not permissible to substitute a different defendant, but where the prosecutor had merely mis-stated the name the amendment should be made.
(b) In applying this principle, we then considered whether Platinum Crown Investments Ltd, (the claimant), received the summons and was thus notified that it was accused of the offences alleged and that it was that company that was before the court on 13 April 2017 as further set out by Glidewell J. in Marco (Croydon) Ltd v Metropolitan Police (at page 33, para.2 of the RTR report).
(c) There could be no confusion with any other company as the name on the original summons, namely Platinum Crown Ltd, related to a defunct company which has no legal existence.
(d) It seems clear that during the proceedings, until the hearing before us, Mr Thomas, the director of Platinum Crown Investments Ltd, believed that the company was the defendant. He accepted service of summons on its behalf, instructed lawyers on behalf of the company to defend it and raised no objection or question in open court relating to the identity of the defendant until the morning of the trial on 13 April 2017, bearing in mind this case was first before the court on 21 June 2016.
(e) The name 'Platinum Crown' was commonly used by Mr Thomas, its director, and the company itself as a synonym or abbreviation for Platinum Crown Investments Ltd."
"12 We therefore concluded that:
(f) The claimant was the correct defendant in these proceedings.
(g) An amendment of the name was merely a correction, not the substitution of a different defendant from the one originally summonsed.
(h) In those circumstances, it was appropriate to amend the summons in accordance with section 123 of the Magistrates' Court Act 1980 to correct the name of the defendant.
(i) The claimant had received the summons at the outset of the proceedings and had not been misled or disadvantaged by the misdescription."
"(1) Were we entitled, based on the facts before us, to form the conclusion that the name on the summons had been merely mis-stated and that Platinum Crown Ltd is, in point of fact, Platinum Crown Investments Ltd, the claimant company?
(2) In the circumstances, were we entitled to allow an amendment to the informations and summons outside of the statutory time limit of six months from the date of the offences?"
"(1) No objection shall be allowed to any information or complaint, or to any summons or warrant to procure the presence of the defendant, for any defect in it in substance or in form, or for any variance between it and the evidence adduced on behalf of the prosecutor or complainant at the hearing of the information or complaint."
"To summarise, I think that the legal position in this field is as follows. Where either party contends that justices have no jurisdiction to hear and determine an information or complaint, and the justices uphold that contention, then the remedy available to the party aggrieved is to ask for leave to apply for judicial review seeking a finding from the Divisional Court that the justices were wrong to decline jurisdiction and an order for mandamus directing them to hear the information or complaint. Where, upon such a contention, justices decide that they do have jurisdiction to hear and dispose of the matter, they should not accede to an application there and then by the party against whom they have decided to adjourn any further hearing and state a case on the jurisdiction point. They should in general proceed to hear and determine the matter before them on whatever evidence is adduced and then, if either party is dissatisfied, he can apply to the justices to state a case under s.111(1). The party against whom the justices decided that they did have jurisdiction at the outset of course always has the concurrent right to apply to the Divisional Court for leave to seek judicial review in the nature of prohibition. In some cases, if the party aggrieved did take that course, it might be desirable for the justices to adjourn their further hearing of the substantive matter until after the determination of the judicial review proceedings; in most cases, however, nothing will be lost if the justices do complete their hearing. It may be that on the facts they will decide the substantive issue in favour of the party contending that they had had no jurisdiction. If they do not, then all the issues can be determined by the Divisional Court on a case stated, at a substantial saving of time and money."
"44 Two points emerge from these cases. The first is that an error as to the identity of the defendant named which impacts on the jurisdiction to hear or determine a case is irremediable in the absence of express and specific powers that provide a remedy. The second is that, where there is a mistake as to identity, section 123 is not to be construed broadly to enable an amendment substituting the person who should have been named in the information or summons for the person that was in fact named, after the expiry of the relevant limitation period. In those cases it appeared that no one was misled by the error."
He said that Marco (Croydon) Ltd and Aldi represented a narrow construction of s.123 and a refusal to regard the name of a different corporate persona as a mis-description of the same person.
MR JUSTICE DOVE: I agree.
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