Camden London Borough Council v Herwald
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE BROWNE |
| Judgment Date | 21 March 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0321-6 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 March 1978 |
[1978] EWCA Civ J0321-6
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(On appeal from Order of Divisional Court, Queen's Bench Division)
Lord Justice Megaw
Lord Justice Lawton and
Lord Justice Browne
SIR PETER RAWLINSON, Q.C., M.P. and Mr. DESMOND KEANE (instructed by Messrs. Walford & Co.) appeared on "behalf of the Appellant (Respondent).
Mr. GUY ROOTS (instructed "by Mr. Francis Nickson, Town Hall, Camden. London, N.W.1) appeared on "behalf of the Respondents (Appellants).
The judgment which Lord Justice Browne is about to deliver is the judgment of the Court.
This is an appeal by Mr. Herwald from a decision of the Divisional Court of the Queen's Bench Division given on 8th April, 1976, and reported in (1977) 1 Weekly Law Reports 100. The Divisional Court allowed an appeal by way of Case Stated from a decision of the Hampstead Magistrates' Court and refused leave to appeal, but leave was given by this Court on the 28th March, 1977.
The case relates to distress for rates. On the 13th March, 1975, the Camden Borough Council laid a complaint in the Magistrates' Court against Mr. Herwald for a summons for non-payment of the general rate in respect of premises at 63 Loveridge Road, London, N.W.6, for the period from 1st October, 1972, to 31st March, 1975, amounting to a total of £1,019.80. On 1st May, 1975, the magistrates heard the complaint and refused to authorise issue of a distress warrant. The Divisional Court, having allowed the appeal, remitted the case to the justices with a direction to authorise the issue of a distress warrant.
When the appeal came on in this Court, the Court raised the question whether we had jurisdiction to hear it, in view of the decision of this Court (consisting of Lord Esher, Master of the Rolls, Lord Justice Kay and Lord Justice A.L. Smith) in Seaman v. Burley (1896) 2 Queen's Bench 345. It was held in that case that there was no appeal to this Court from a decision of a Divisional Court on a Case stated by justices relating to the grant of a distress warrant to enforce a poor rate under a Local Act, because it was an appeal in a "criminal cause or matter" within section 47 of the Judicature Act, 1873, inasmuch as the proceedings before the magistrates might end in imprisonment (see now section 31 (1) (a) of the Supreme Court of Judicature (Consolidation) Act, 1925, andsection 1 (1) (a) of the Administration of Justice Act, 1960). Sir Peter Rawlinson, for Mr. Herwald, wished us to deal with the case; and Mr. Roots for the Camden Borough Council did not take any objection to our jurisdiction, and indeed advanced a helpful argument in support of it.
The statutory provisions as to distress for the general rate are now contained in Part VI of the General Rate Act, 1967, beginning with section 96 (l).
Section 96 (1) provides that "….if any person fails to pay any sum legally assessed on and due from him in respect of a rate for seven days after it has been legally demanded of him, the payment of that sum may, subject to and in accordance with the provisions of this Part of this Act, be enforced by distress and sale of his goods and chattels under warrant issued by a magistrates' court; and, if there is insufficient distress, he may be liable to imprisonment under the provisions of this Part of this Act in that behalf".
Section 97 (1): "The proceedings for the issue of a warrant of distress under this Part of this Act may be instituted by making complaint before a justice of the peace and applying for a summons requiring the person named in the complaint to appear before a magistrates' court to show why he has not paid the rate specified in the complaint".
Section 98: "The justices may state a case under the Magistrates' Courts Act, 1952, when called upon to issue a warrant of distress under this Part of this Act".
Section 99 (1): "A warrant of distress under this Part of this Act may be directed to the rating authority, to the constables of the police area in which the warrant is issued and to such other persons, if any, as the magistrates' court issuing the warrant may think fit, and the warrant shall authorise the persons to whom it is directed to levy the amount which the person against whom the warrantis issued is liable to pay by distress and sale of his goods and chattels".
Section 102 (l): "If the person charged with the execution of a warrant of distress for levying a sum to which some other person has been rated makes a return to the magistrates' court that he could find no goods or chattels (or no sufficient goods or chattels) on which to levy the sums directed to be levied under the warrant on that other person's goods and chattels, a magistrates' court may, if it thinks fit, and subject to the provisions of section 103 of this Act, issue a warrant of commitment against that other person".
Section 102 (5): "The order in the warrant of commitment shall be that the said person be imprisoned for a time therein specified but not exceeding three months, unless the sums mentioned in the warrant shall be sooner paid….": and the sub-section goes on to provide for a remission of the term of imprisonment proportionate to the amount of any later payment.
Section 103 (1): "Section 102 off/ this Act shall have effect subject to and in accordance with the following provisions: (a) on the application for the issue of a warrant for the commitment of any person, the magistrates' court shall make inquiry in his presence as to whether his failure to pay the sum to which he was rated and in respect of which the warrant of distress was issued was due either to his wilful refusal or to his culpable neglect; (b) if the magistrates' court is of opinion that the failure of the said person to pay the said sum was not due either to his wilful refusal or to his culpable neglect, it shall not issue the warrant".
Section 103 (2): "Where on the application no warrant of commitment is issued, the magistrates' court may remit the payment of any sum to which the application relates, or of any part of that sum".
Seaman v. Burley was decided on the provisions of a local Act relating to the parish of Paddington ( 5 George IV, Cap. CXX (vi)).Section CXX of that Act contained provisions generally corresponding with those of Part VI of the 1967 Act, with one important exception: it contained no provision corresponding to section 103.
In Ryde on Rating, 13th Edition, page 878, the authority of Seaman v. Burley in the present context is doubted. In two later cases this Court has heard and decided appeals from the Divisional Court relating to distress for rates, though it does not appear that in either of them Seaman v. Burley was cited or any point taken as to jurisdiction (see Associated Cinema Properties Ltd. v. Hampstead Borough Council (1944) 1 King's Bench 412 and Bexley Church Treasurer v. Bexley London Borough Council (1972) 2 Queen's Bench 222). In In re McGreavy (1950) 1 Chancery 269 this Court disagreed with what it regarded as an obiter dictum of Lord Esher in Seaman's case (see pages 279-280), and in China v. Harrow U.D.C. (1954) 1 Queen's Bench 178 the Divisional Court (we think) impliedly distinguished Seaman, which was cited in argument. But we do not think we need refer further to those cases, because two years after Seaman v. Burley was decided it was distinguished by this Court on a ground which in our judgment equally distinguishes it from the present case. In Scuthwark and Vauxhall Water Co. v. The Hampton U.D.C. (1899) 1 Queen's Bench 273 it was held that an application to a court of summary jurisdiction for an order to enforce a general district rate under the Public Health Act, 1875, was not a "criminal cause or matter" and that an appeal lay to this Court from a decision of the Divisional Court on a Case stated. The leading judgment was given by Lord Justice A.L. Smith, who had been a party to the decision in Seaman v. Burley, and Lord Justice Rigby and Lord Justice Collins concurred. The ground on which Seaman's case was distinguished was that in that case the Summary Jurisdiction Act, 1879, did not apply but in the Southwark and Vauxhall Water Co. case it did. The 1879 Act contained provisions in section 35 the effect of which was in our viewsubstantially the same as the effect of the provisions of section 103 (1) of the 1967 Act, and it was held that the proceedings were therefore not a "criminal cause or matter". The proceedings in the present case are, therefore, in our view, equally not a "criminal cause or matter". This distinction also avoids the startling conclusion that every judgment summons in a County Court under Order 25 Rule 33 of the County Court Rules and section 5 of the Debtors Act, 1869, is a "criminal cause or matter".
In our judgment, this Court has jurisdiction to hear this appeal. We hope that our decision will end the 'uncertainty referred to in Ryde.
We come, therefore, to the substance of the appeal. It is well-established that an application for a distress warrant to enforce payment of rates can only be resisted on certain limited grounds. It is also well-established that one of such grounds is that the defendant is not in occupation of the hereditament in respect of which it is sought to rate him. The question in this case is whether, and if so in what circumstances, it is a defence for him to show that he is only in occupation of part of that hereditament.
The Case Stated, having found that the relevant rates were made, published and demanded, finds...
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