Ewing, ex parte
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE MUSTILL,LORD JUSTICE NICHOLLS |
| Judgment Date | 10 April 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0410-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/0330 |
| Date | 10 April 1991 |
[1991] EWCA Civ J0410-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGHBURY CORNER MAGISTRATES COURT
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Mustill
Lord Justice Nicholls
91/0330
THE APPLICANT appeared in person.
We have been faced this morning with a not uninteresting application by Mr. Ewing for leave to apply in the High Court for the judicial review of three decisions.
The first concerns the issuing of a summons by the Islington Council in the Highbury Corner Magistrates Court on 15th January 1991 in which the Council sought a liability order against Mr. Ewing under Regulation 29 of the Community Charge Administration and Enforcement Regulations 1989 and that summons was adjourned for hearing later today. Secondly, he wishes to judicially review a decision of the Islington Council not to withdraw that summons, and a decision contained in a letter dated 28th February 1991 asserting that the community charge which formed the basis of that summons was lawfully set. Thirdly, and this of course is the fons et origo of all these proceedings, he wishes to judicially review the resetting of the community charge by the Islington Council under section 32 of the Local Government Finance Act 1988 on 19th July 1990.
It is so well known that one can almost take judicial notice of the fact that there were problems in England and Wales in 1990 concerning the level at which certain councils set their community charges. The Islington Council was one where there was intervention under statutory authority by the Secretary of State requiring the Council to reset the charge and, as a result, the Council met on 19th July 1990. We have the Minutes of the Council. In Minute 8, which is at page 29 of our bundle, it is recorded that it was resolved on the motion of Councillor Margaret Hodge:
"(a) That the revised estimates for 1990/91 detailed in the report, Appendix C, be agreed.
(b) That the following amounts be now calculated by the Council for the year 1990/91 in accordance with Section 95 of the Local Government Finance Act 1988."
Then it sets out the figures which are not directly material for the purposes of this judgment, and it continues:
"The Council in accordance with Section 32 of the said Act hereby sets an amount of £481.27 as the personal community charge for its area for the chargeable financial year beginning with 1st April 1990, being satisfied that such an amount will secure (so far as is practicable) that the total amount yielded by its community charges for the said chargeable financial year will be sufficient to provide for the items previously mentioned to the extent that they are not to be provided for by other means."
I need not deal with the rest of the Minute.
What Mr. Ewing submits is that, under paragraph 39 of Schedule 12 of the Local Government Act 1972, there has to be a vote to pass such a resolution. In that he is plainly correct because paragraph 39 says this:
"(1) Subject to the provisions of any enactment (including any enactment in this Act) all questions coming or arising before a local authority shall be decided by a majority of the members of the authority present and voting thereon at a meeting of the authority.
(2) Subject to those provisions in the case of an equality of votes, the person presiding at the meeting shall have a second or casting vote."
Mr. Ewing goes on to say that there are only two ways in which you can vote—one is by a ballot and the other is by a show of hands—and there is no record in the Minutes that either took place. In fact, it is reasonably clear that what occurred was that the motion was declared to be carried nemine dissentiente. No doubt the Islington Council were extremely aggrieved that they had to pass this motion and no member of the Council wished to be seen to be holding his hand in the air or going through a division lobby in favour of it. But the fact is that the Council were by silence accepting this motion. They were thereby voting for it.
It is by no means unknown for local authorities, when faced with non-controversial matters, simply to agree to recommendations from committees "on the nod". Nobody has ever suggested that the passing of a motion on the nod does not constitute a valid way of passing a motion for purposes of paragraph 39 of Schedule 12 of the Local Government Act 1972.
Mr. Ewing's contention is therefore quite unarguable on its merits in so far as he seeks to judicially review the setting of the charge. Of course, it follows from that that, equally, his wish to judicially review the issue of the summons and the refusal of the Islington Council to withdraw the summons are equally unarguable.
On those grounds I would refuse him leave to seek judicial review of all three proceedings.
But, before coming to that, I ought to detail the previous history of the matter, which began in this way. He applied to Mr. Justice Swinton Thomas for leave to apply for leave for judicial review. The reason why he did that was that Mr. Ewing is amongst the select band of those in respect of whom orders have been made under section 42 of the Supreme Court Act 1981 as amended. Accordingly, he is subject to an order that no civil legal proceedings shall without the leave of the High Court be instituted by him in any court. He applied to Mr. Justice Swinton Thomas and the learned judge's order, which is dated 14 March, is in these terms:
"It is ordered that the said Terence Patrick Ewing does not need leave to commence an application for leave to apply for Judicial Review proceedings in respect of an application by Islington Council in the Highbury Corner Magistrates Court for a Liability Order under Regulation 29 of the Community Charge (Administration and Enforcement) Regulations 1989 against the said Terence Patrick Ewing and in respect of the setting of the Community Charge by Islington Council on 19 July 1990 on the ground that such an application does not constitute the institution of proceedings and further that the application is the continuance of the proceedings in...
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