Francis Xavier Gregory v Thames Magistrates Court
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cutts DBE |
| Judgment Date | 31 July 2019 |
| Neutral Citation | [2019] EWHC 2125 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3566/2018 |
| Date | 31 July 2019 |
[2019] EWHC 2125 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Cutts DBE
Case No: CO/3566/2018
and
Mr Martin Young (instructed by Harrison Carter) for the Claimant
Mr Jon Holbrook (instructed by JE Baring & Co) for the Interested Party
Hearing dates: 25/07/19
Approved Judgment
In this case the claimant applies to set aside the order of Sir Ross Cranston of 13 th April 2019 in which he dismissed the claimant's application to set aside the order of Mr Justice Walker dated 2 nd November 2018 refusing the claimant permission to apply for judicial review.
Should that fail there is an application by the interested party, the London Borough of Tower Hamlets, (the “local authority”) for an extended civil restraint order.
There had been an application by the claimant to adjourn this hearing on the basis that his counsel was unavailable. That is no longer pursued as the claimant has been able to obtain legal representation. The claimant is not present today.
During the hearing on 25 th July 2019 there was some confusion over applications to set aside DJ Clarke's judgments of 20 th October 2016 and 23 rd March 2018 made by the claimant to the Magistrates' Court in January and May 2019. [See paragraph 34 below]. I acknowledged that the Claimant had not had a chance to consider the paperwork and that I would consider any documents upon which he sought to rely on this matter if they were sent to me after the hearing. I have been sent a further bundle of documents by the Claimant which arrived at the court on 26 th July. These documents are not confined to the issue of applications before the Magistrates' Court. I have considered them but make it abundantly clear that the time for evidence and further submissions is now closed.
Facts
This matter has a long and protracted history which it is necessary to set out in some detail.
The root of the case lies in the claimant's ownership of 8 residential dwellings, 25–32 Fieldgate Mansions in the London Borough of Tower Hamlets and his liability for council tax thereon.
Between 1997 and 2014 liability orders were made in 28 separate hearings in respect of unpaid council tax at Thames Magistrates Court.
In March 2011 correspondence was sent to the then legal representatives of the claimant regarding outstanding liability orders and the council threatened service of a bankruptcy petition. On 26 th July 2014 a statutory demand was served in respect of the liability orders in the total sum of £21,242.86.
On 29 th July 2014 the claimant lodged an appeal with the Valuation Tribunal. He claimed that he was not liable for the council tax for these properties as they were let. The tenants were therefore responsible.
On 8 th May 2015 he applied to the Thames Magistrates Court to have 25 of the 28 liability orders set aside. He claimed that he did not receive the demands for payment. This was resisted by the local authority.
On 9 th July 2015 there was a hearing at the Magistrates Court at which the claimant was represented by counsel. Mr Holbrook, counsel for the interested party in this matter, also acted for the local authority in those proceedings. In a skeleton argument of the same date he submitted that the claimant had failed to satisfy any of the criteria set out in R (Brighton and Hove CC) v Brighton and Hove Justices (Hamdan) [2004] EWHC 1800 (Admin). In this case the Administrative Court held that the Magistrates Court retains a power to set aside a liability order that may be exercised cautiously and exceptionally and only if the applicant can establish all of the following 3 issues:
a. Merits – there is a genuine and arguable dispute as to his liability;
b. Procedural error, defect or mishap by the court – the order was made as a result of a substantial procedural error, defect or mishap;
c. Delay in applying to set aside – the application to the justices for the order to be set aside is made promptly after the defendant learns that an order has or may have been made. Promptness normally requires action within days or at most a very few weeks, not months.
The court's legal adviser had set these criteria out for the claimant in a letter of 11 th May. The local authority claimed that the claimant had failed to provide any evidence in support of his application or any basis upon which the three criteria could be satisfied. In particular Mr Holbrook drew attention to the service provisions of the A & E Regulations (reg 2) and section 233 of the Local Government Act 1972 which state that personal service of the demands is not required. Service is deemed effective providing a document is posted to a person's last known address. That is what happened in this case in addition to it being sent to those understood to be the claimant's solicitors. These had been corresponding with the Local Authority since March 2011. The last liability order had been served on 26 th July 2014. The application had been made nine months later. This was not a prompt application. At the magistrates' court hearing the claimant was ordered to file and serve any evidence in support of the application. The proceedings were adjourned to follow the Valuation Tribunal hearing.
On 12 th July 2016, following a hearing on 26 th May, the Valuation Tribunal found that, absent evidence of a tenancy on any property, the claimant had failed to discharge the burden upon him.
On 9 th August 2016 the claimant requested a review of these findings on the grounds of procedural irregularity. On 27 th October the Vice-President of the Valuation Tribunal concluded that there was no such irregularity.
The adjourned application at Thames Magistrates Court to set aside the liability orders resumed. Following a hearing on 22 nd September 2016 the court set down directions. It was noted in the order that the claimant had failed to comply with the direction of 9 th July 2015 to file evidence in support of his application in that he had failed to address the 3 criteria set out in Hamdan. It was additionally noted that the court had amended its file to record the claimant's address as Flat 3, 85 Weston Road, Romford. RM1 3LS. The claimant was ordered to “file and serve evidence in support of his applications having regard to the three criteria set out in Hamdan” by 6 th October 2016. Those criteria were again set out in the order. The parties were ordered to exchange skeleton arguments not already served by 13 th October 2016. A case management hearing was set down for 20 th October. The court sent the claimant notice of the date which said that the hearing on 20 th was to be a case management hearing to “discuss and identify the issues in the case and then fix a trial date.” The notice went on to say that if the claimant failed to attend the hearing the court could still decide to deal with his case in his absence.
On 7 th October 2016 the local authority wrote to the court and sent copies of the letter to the claimant at the address noted in the order of September 2016 and to a company named Norseman Property Services with which he was known to be connected. The claimant had failed to comply with the orders of 9 th July 2015 and 22 nd September 2016 to file and serve the required evidence in support of his application. The letter expressed the local authority's view that the application was hopeless and, given the failure to comply with directions and that the liability orders in question dated back to 1999, asked that a District Judge consider treating the hearing on 20 th October not as a case management hearing but as a hearing to finally determine the application to set aside the orders with a time estimate of 1 1/2 hours.
The claimant was not present at the hearing on 20 th October 2016 and unrepresented. He had still not filed and served any evidence in support of his application. District Judge Clarke acceded to the local authority's request to treat the hearing as one to determine the application to set aside the liability orders. This was dismissed with costs of £11,600. The application was dismissed on the basis that the claimant had failed to support his own application and was in default of directions given.
On 10 th November 2016 the claimant applied to DJ Clarke to set aside his first dismissal order on the basis that he did not attend because he thought the hearing was only to be one of case management.
On 24 th November 2016 the claimant lodged an appeal against the decision of the Valuation Tribunal. The appeal was heard by His Honour Judge Curran QC sitting as a judge of the High Court on 14 th June 2017. The claimant did not appear but was represented. His son, Kevin Gregory, was present. Counsel for the claimant asked that the proceedings be adjourned and stayed for three months. This was on the basis that there had been and continued to be material non-disclosure from the local authority. The claimant wished the local authority to disclose the unedited electoral roll for the years running up to the proceedings in order that his father could establish that the flats in question were let to tenants at the material time. HHJ Curran in his judgment said that this was the purpose of the application for disclosure. It was made because the claimant had no evidence to support his assertion, and the tribunal declined to draw the inference, that he would not let flats remain untenanted, the burden of proof being on him. The application was said to be so late in the day as it had not occurred to anybody to make such enquiries before. The judge refused to adjourn the hearing. He dismissed the appeal with costs in the sum of £7,910....
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