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
		24th October 2017

LORD JUSTICE TREACY:

1. This is an appeal by way of case stated against the decision of the Colchester Magistrates' Court made on 13 April 2017.
2. The issue relates to the amendment of informations laid and summonses issued against a company described as Platinum Crown Ltd (PCL) in respect of 10 alleged offences, contrary to s.234 of the Housing Act 2004. At the same time - June 2016 - informations and summonses were laid and issued against the second interested party Mr Cyril Thomas. The case stated shows that the first hearing of the matter was on 21 June 2016 when Mr Thomas appeared both as a director of what was described as PCL and also as a defendant in his own right. Not guilty pleas were entered to the allegations both by PCL (so described) and Mr Thomas.
3. Section 46 of the Magistrates' Court Act 1980 and para.2 of Sch.3 to that Act together with s.33(6) of the Criminal Justice Act 1925 require a representative of a corporate body to submit a statement in writing to the court saying that he has been appointed as a representative of the company for the purpose of the proceedings. Applying the presumption of regularity, we take that to have occurred in this case.
4. The matter was listed for trial on 23 January 2017. On that date both the claimant Platinum Crown Investments Ltd (PCIL) and Mr Thomas were represented by Mr Croskell of counsel. He produced a large bundle of documentary evidence, including, inter alia, a lease for the premises in question which appeared to show that the building was leased to PCIL as opposed to PCL. The lessor of the premises was Mr Thomas. That documentation had been produced for the purposes of advancing a defence available to Mr Thomas and not because at that stage there was any realisation of a possible issue as to mistaken identification of the corporate entity.
5. Because of the late service of this evidence the court adjourned the trial until 13 April 2017. On that date Mr Croskell challenged the validity of the informations laid against PCL on the basis that the defendant had wrongly been described in them. It seems that someone in Mr Croskell's instructing solicitor's office had spotted the point shortly before the hearing. Counsel for the prosecuting local authority accepted that the name on the informations and summonses was incorrect and applied to amend the name of the defendant pursuant to s.123 of the Magistrates' Court Act 1980. The amendment proposed would show that the defendant was PCIL rather than PCL. The application was made on the basis that the defendant's correct name had been mis-stated.
6. Mr Croskell objected to the application, submitting that the purpose of s.123 was to permit amendments to charges faced by an existing defendant and not for substituting a different person as a defendant. PCL was a separate legal entity from PCIL. The summonses could not be amended as this would have the effect of bringing fresh proceedings against a different party outside the six-month limitation period described by s.127(1) of the 1980

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."

7. At para.11 of the case it is stated:

"11 We found that:

(a) Based on the principle set out by Glidewell J. in Marco (Croydon) Ltd v Metropolitan Police [1983] 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."

8. Paragraph 12 of the case provides:

"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."

9. Two questions are posed for the opinion of this court:

"(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?"

10. Section 123(1) of the Magistrates' Court Act 1980 provides:

"(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."

11. On behalf of the respondent local authority, a jurisdictional point was taken: the power to state a case derived from s.111(1) of the Magistrates' Court Act 1980. That subsection was considered in Streames v Copping [1985] QB 920. There, the court held that on a proper construction of s.111(1) the justices had no power to state a case until they had reached a final determination on a matter before them and the High Court had no jurisdiction to consider or determine a case stated by the justices in excess of their power.
12. At page 928F, Lord Justice May stated:

"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."

13. In the light of those observations it was contended that there was no jurisdiction for us to hear an appeal by way of case stated since the decision complained of was an interlocutory one.
14. Given that submission, we have considered some later authorities. I begin with R v Greater Manchester Justices ex parte Aldi GmbH & Co (13 December 1994) [1994] 159 JP 717. In that case this court said it was bound by Streames v Copping. Whilst the court referred to the undesirability of the use of a case stated in interlocutory matters and went on to say that that would in general apply also to the use of judicial review in interlocutory matters, the court said that in the particular circumstances it was prepared to deal with the matter by way of judicial review where the justices had adjourned the hearing of the matter after amending the name of the defendant company so that the correct company could be served with the summonses and brought to court. The court there recognised that there was sense in the matter coming to this court at that point in the proceedings and was prepared to deal with the matter on the merits.
15. In Sunworld Ltd v Hammersmith & Fulham London Borough Council [2000] 1 WLR 2102 there was an appeal from conviction in the Magistrates' Court to the Crown Court which gave a fully reasoned judgment. The Crown Court stated a case on one of three questions requested by the defendant company but refused to state a case on the other two.
16. On an application by the company for permission to apply for judicial review of the refusal, the single judge ordered that the application be renewed in the proceedings on the case stated. When the case came on for hearing the issue arose as to whether the matter should be dealt with by way of case stated or judicial review. This court held, in granting the application for judicial review, that since the Crown Court had given a fully reasoned judgment there was little advantage in requiring it to set out the whole matter again by way of case stated or compelling it to state a case on the additional questions. Rather than remit the case stated to the Crown Court for further questions, the court would proceed as if the challenge had been brought on judicial review. The court was prepared to deal with the matter on the materials before it rather than remit to the Crown Court since that court had already given a reasoned judgment containing all the necessary findings of fact and had explained its refusal to state a case in terms which raised the point of law in issue. In the circumstances the proper course was for the single judge to grant permission for judicial review directly challenging the order complained of and avoiding the need for a case to be stated at all. The court observed that it would adopt whatever course involved the fewest additional steps and least expense, delay and duplication of proceedings. Accordingly, the court proceeded to deal with the substantive challenge.
17. In Gillan v Director of Public Prosecutions [2007] 1 WLR 2214, which involved a claim for judicial review of the Crown Court judge's decision on an appeal arising from a committal for sentence to the Crown Court challenging the judge's conclusion that he had no power to conduct a further Newton hearing in the Crown Court, this court held that the High Court would not entertain an appeal by way of case stated against an interlocutory decision in criminal proceedings. It stated that a challenge to the lawfulness of such an interlocutory decision should be made by way of a claim for judicial review. The court then stated that it would give appropriate directions to enable it to proceed by way of judicial review rather than case stated and treat the hearing as the substantive application. This would enable the matter to be considered and decided on its merits and was the obvious and sensible way of dealing with the particular matter.
18. It seems clear to me from a consideration of those four decisions that notwithstanding the general rule that this court has no jurisdiction to deal with an interlocutory appeal from the Magistrates' Court in a criminal matter by way of case stated, a degree of flexibility in dealing with the matter is available to this court in exceptional circumstances. A similar course was taken in Balogun v Director of Public Prosecutions [2010] EWHC 799 (Admin), paras.31 to 33.
19. In this case the trial which would otherwise have gone ahead has been adjourned by the justices and is due to be heard early in December 2017. That date has been fixed in anticipation of a decision by this court. The substantive point in issue has been clearly identified in the case stated. It is supported by clear factual findings in relation to the relevant evidence. Both parties have spent time and money in preparation for this hearing and are ready to proceed with the substantive point raised by the justices.
20. I consider that all relevant materials are before this court. It seems to me that a strict application of Streames v Copping and a refusal to adjudicate upon the point in issue would be likely to cause delay, additional expense and might well result in the same point returning to this court on a later date if the magistrates were to convict on the informations. I can see no benefit to either party or to the administration of justice in declining to rule today on the point raised. I consider it right to deal with the jurisdictional point by applying the degree of flexibility which the authorities cited permit.
21. I would therefore treat the appeal by way of case stated as a matter brought before the court by way of judicial review; I would dispense with the necessary formalities and deal with the matter on the basis of the materials before the court; I would grant leave so that the court proceeds to a consideration of the substantive point in issue.
22. In relation to the substantive issue, the claimant asserted that PCL was a company which had no connection with PCIL or Mr Thomas and was a separate legal entity. PCIL never was and never will be PCL. The effect of the amendment was to permit the laying of an information against a new defendant outside the time limit imposed by s.127(1) of the Act. Accordingly, the justices' decision should be quashed.
23. It was submitted that mis-statement of a company name was an incurable defect. Certainly, that appeared to be the case from the written submissions made to us wherein it appeared to be submitted that it was not remediable by an application under s.123 outside the six-month period laid down by s.127. The submissions made to us today by Mr Croskell have not been quite so dogmatic.
24. Reliance was placed upon the observations of Glidewell J in Marco (Croydon) Ltd T/a A & J Bull Containers v Metropolitan Police [1984] RTR 24. That case involved an amendment under s.123 where the justices granted leave to amend and then granted an application by defending counsel for an adjournment to enable him to ascertain whether he was to be instructed to appear on behalf of Marco (Croydon) Ltd whose name had been substituted for a different company within the same group of companies as Marco.
25. The court held that in granting the adjournment the justices had accepted that until counsel obtained further instructions he was not instructed by the company who was substituted for the original defendant. This showed that initially the wrong corporate person was before the court and it was too late to amend the summons by reason of s.127. In the course of his judgment, Glidewell J observed, having considered decisions such as Allan v Wiseman [1975] RTR 217 which turned on amendments arising from the mis-naming of non-corporate individuals, that "the situation becomes more difficult and more technical when a limited company is served with a summons instead of an individual". Reliance was also placed on the decision in Aldi which had followed Marco. The wrong company had been summoned initially and the real defendants were not before the court. The effect of an amendment by the justices was to allow a charge to be laid out of time against a new defendant.
26. Again, in R (J Sainsbury Plc) v Plymouth Magistrates' Court [2006] 170 JP 690, this court held that the district judge was in error in permitting an amendment under s.123, the effect of which was to prefer a charge against a new defendant outside the statutory time limit.
27. Mr Croskell submitted that considerations of whether the claimant had been prejudiced were irrelevant. The key principle was whether, if the wrong party had been summoned, no amendment could take place outside the time limit. The justices were, he argued, wrong to conclude on the evidence that the name of the defendant was merely mis-stated and that this mis-statement had been corrected by the amendment. What had wrongly been permitted was the substitution of the original defendant by a different defendant outside the time limit. Accordingly, the decision should be quashed.
28. On behalf of the respondent, Miss Jempson placed reliance on the decision of the Court of Appeal in R (Essence Bars Ltd) v Wimbledon Magistrates' Court [2016] 1 WLR 3265. She argued, first, that the fact that a mis-statement related to a corporate entity, as opposed to an individual, does not mean that there is a mistake as to identity which cannot be corrected pursuant to s.123. If, on the facts, a mistake can be characterised as a mis-description then provided there is no reasonable doubt as to the identity of the defendant an amendment should be allowed. She submitted that on the facts of this case there could have been no reasonable doubt as to the identity of the defendant based on the matters set out in the case stated.
29. Accordingly, when the facts and history of the matter were considered, the justices were entitled to treat this as a case involving correct identification of the defendant but with mere mis-statement of its name. The appropriate test had been identified in Marco (Croydon) Ltd and was not in doubt: where the correct person has been summoned amendment should not be allowed, but where the prosecutor has correctly identified the defendant but merely mistaken the name amendment should be allowed.
30. Miss Jempson argued that contrary to the claimant's submissions, the decisions in Aldi and Sainsbury were not on all fours. There, the deficiency could not be cured by the prosecution seeking an amendment affecting the party before the court since the correct party in those proceedings was not actually before the court. It was significant in this case that, had PCIL been the wrong person before the court, counsel for the claimant would have had no instructions to act. He had in fact appeared at all times for PCIL and on 23 January 2017 had produced documents to which I have referred. Accordingly, the justices were entitled to amend the summons on the basis of a mere mis-statement of the defendant's name.
31. I observe that the decision in Essence Bars Ltd was also concerned with the question of amendment under s.123. Although the court there was not dealing with a criminal matter but dealing with an appeal to the Magistrates' Court pursuant to the Licensing Act 2003, Beatson LJ, giving the main judgment, did not consider that that made a material difference.
32. He reviewed the decisions in Marco (Croydon) Ltd, Aldi and Sainsbury. At para.44 he said:

"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.

33. I note that each of those three cases involved the prosecutor proceeding against the wrong member of a corporate group when another member of the group could have been charged appropriately. The present case is different in that respect. It seems to me that there are other material differences to which I will return later.
34. At para.58 of Essence Bars Ltd, Beatson LJ said that there were two questions: first, whether on the facts before the district judge there was no mistake as to identity and,second, whether it could be said that there was no reasonable doubt as to the identity of the defendant. He went on at para.64 to observe that, on the authorities, there was no indication of an automatic rule that a mistake concerning a corporate identity is a mistake of identity rather than a mis-statement of name. Where the latter situation occurs, the fact that the period in s.127 has expired is not conclusive (para.65).
35. This decision shows that a degree of factual inquiry is necessary before the court can distinguish between a mistake as to identity (which cannot be corrected out of time) and a mis-statement of name (which may be corrected out of time). In the three cases relied on by the claimant there was scant material for the finding of mis-statement of name. In each case there was an extant corporate body which was part of the same group of companies and which was recognised as having been wrongly identified. In each case the originally named company was before the court, not the company whose name it was sought to substitute by amendment.
36. I consider that the following facts and matters are relevant in this case: (i) on the date the information was laid PCL was a defunct company albeit that it was still on the Register at the date of the alleged offences; (ii) prior to the laying of informations the local authority had been in correspondence with Mr Thomas, addressing him personally and in his capacity "as a director of Platinum Crown Investments Ltd" (PCIL). The correspondence referred to proposed proceedings and an interview with Mr Thomas personally as well as inviting him to nominate a representative of PCIL to be interviewed under caution. A previous statutory requisition for information replied to by Mr Thomas showed that he was the owner of the premises concerned and that the leaseholder was PCIL. He signed that document as a director of "Platinum Crown" which was a trading name of PCIL; (iii) again, prior to the laying of informations solicitors instructed by Mr Thomas wrote to the respondent using the claimant's full name PCIL; (iv) at the first court hearing on 21 June 2016 Mr Thomas appeared as a defendant in his own right and as a director, entering not guilty pleas on his own behalf and on behalf of the entity described there as PCL. He could only have entered such pleas as a director of PCIL; (v) on 23 January 2017 Mr Croskell of counsel appeared, instructed on behalf of Mr Thomas and PCIL. It was on that occasion that Mr Croskell produced documents, including a lease in the name of PCIL; (vi) at no stage was any person before the court representing PCL. No person entered a plea on behalf of PCL, the defunct company.
37. It seems to me therefore that the local authority always intended to prosecute PCIL and that both PCIL and its director Mr Thomas were aware of that fact prior to the laying of information. On the first court appearance when Mr Thomas attended and entered not guilty pleas it is clear that he must have intended to enter pleas on behalf of PCIL. This was not a case where there was room for confusion with some other legal entity in the way that occurred in each of the three cases relied upon by the claimant. It is clear that all parties acted on the basis that Mr Thomas and PCIL were the defendants, it not being appreciated until a late stage (shortly before the hearing of 13 April 2017) that there was a problem arising from the name of PCL appearing on the informations and summonses. Moreover, Mr Croskell had appeared before the court both in January and April 2017 on behalf of PCIL.
38. Accordingly, I conclude that the situation is different from the earlier cases in that the party originally named in the summonses (PCL) never appeared before the court, whereas the company whose name was sought to be substituted by way of amendment already (PCIL) always had whether through Mr Thomas or by instructed counsel. In those circumstances and having had regard to the approach to questions of this sort adopted in Essence Bars Ltd, I would analyse this matter as one not involving a mistake of identity but rather a mis-statement of name. The fact that the issue arises in relation to a corporate entity in my judgment, whilst making the distinction more difficult to draw in many cases, is not decisive. What is required is an examination of the available evidence in deciding which side of the line the case falls. In my judgment this was a mistake or mis-statement of name in circumstances where there could be no reasonable doubt as to the identity of the defendant entertained by the court or indeed by the defendant itself.
39. For those reasons I would regard the justices as entitled to conclude that there had been a mere mis-statement of a name on the summons and that amendment, notwithstanding the expiry of the statutory time limit, was a course they could properly take. For those reasons I would decline to answer the questions set out in the case stated and would dismiss the claim for judicial review of the judge's decision.

MR JUSTICE DOVE: I agree.

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