Gladstone Plc v Manchester City Magistrates' Court and Another

JurisdictionEngland & Wales
JudgeMR JUSTICE LEVESON,LORD JUSTICE ROSE
Judgment Date18 November 2004
Neutral Citation[2004] EWHC 2806 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/2737/2004
Date18 November 2004

[2004] EWHC 2806 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Rose

Mr Justice Leveson

CO/2737/2004

Gladstone Plc
(Claimant)
and
Manchester City Magistrates' Court
(Defendant)
and
Norman Guiver
(Interested Party)

COLIN NICHOLLS QC AND DAVID GROOME appeared on behalf of the CLAIMANT

THE DEFENDANT did not attend and was not represented

THE INTERESTED PARTY appeared in person with his MacKenzie friend, MR MIKE BIRD

Thursday, 18th November 2004

MR JUSTICE LEVESON
1

This is an application for judicial review of a decision of District Judge (Magistrates) Alan Berg, sitting at Manchester City Magistrates' Court to the effect that Bradley Lee, on behalf of Gladstone PLC, had no right or authority to lay an information alleging that Mr Norman Guiver had assaulted Mr Benjamin Merrett, contrary to section 39 of the Criminal Justice Act 1988.

2

Before embarking on an analysis of the facts, it is appropriate to deal with one preliminary issue. These proceedings were served both on the Magistrates' Court and on solicitors who had been acting for Mr Guiver in the criminal prosecution as an interested party. Mr Guiver completed an Acknowledgment of Service, setting out the grounds upon which he resisted this claim and identifying that he was acting in person. Unfortunately, details of his representation were not transferred onto the Administration Court database and the order of the single judge was sent only to his former solicitors. This error came to light 15 days later when Mr Guiver contacted the court for an update. He now argues that the Acknowledgment of Service cannot have been before the single judge with the result that permission was granted when it would not otherwise have been. Although the error is to be regretted, and the Court Service apologised to Mr Guiver, it did not have the effect which he suggests. As the order of the single judge makes clear, he considered both the documents lodged by the claimant and the Acknowledgment of Service filed by the interested party. Mr Guiver has not been prejudiced in any way in relation to the judicial consideration given to his defence to this application.

3

Turning to the merits, the facts can be summarised very shortly. Mr Guiver is a shareholder of Gladstone PLC, with very strong views as to the way in which the company has been managed or, as he would contend, mismanaged. On 21st March 2003 Mr Guiver attended the company's Annual General Meeting, during the course of which, it is alleged, and I underline that it is an allegation only, there was a scuffle in which Mr Guiver assaulted the Chief Executive, Mr Merrett. That afternoon there was a meeting of the board of directors for the purpose of Mr Merrett seeking advice as to the action which the company should take. The Chairman and other director present agreed that the company should be "resolute in its approach to shareholders who act in the manner described", and approved payment by the company of all reasonable expenses incurred by Mr Merrett in relation to prosecuting the case. The company wrote to solicitors whom they believed acted on behalf of Mr Guiver, but not having obtained any response, took legal advice. The upshot of that advice was that the solicitors advised the company, and Mr Merrett, to instruct them to commence proceedings in respect of the assault. So it was that on 24th June 2003 the solicitors wrote to Manchester Magistrates' Court. This is an important letter, which I set out:

"Dear Sirs.

Gladstone PLC v Norman Guiver

We are instructed by the above-named prosecutor, Gladstone PLC, and wish to lay the following information before the court.

Date of offence: 21st March 2003.

Name of the accused: Mr Norman Guiver.

Address of the accused: [His address is provided. It is not necessary to include that detail within this judgment].

Alleged offence: Common assault, contrary to section 39 of the Criminal Justice Act 1988.

Name of informant: Mr Bradley Lee.

Address of informant: Lawrence Stephens Solicitors [and that address is provided].

Telephone number of the informant: [That is also provided].

We enclose three copies of the appropriate summons in respect of the above information and look forward to receiving duly signed copies of the summons in due course. We also forward to hearing from you in respect of the listing of a return date that is mutually convenient to both the court and the prosecutor."

4

The summons is addressed to Mr Guiver, issued out of the Manchester Magistrates' Court, and reads:

"Informations this day being laid before me by Bradley Lee of Lawrence Stephens Solicitors … acting on behalf of the prosecutor, Gladstone PLC, who states that you on 21st March 2003 at the offices of Brewin Dolphin Securities Limited … Assaulted Ben Merrett, common assault contrary to section 39 of the Criminal Justice Act 1988."

5

A statement of facts then alleges that during the course of the Annual General Meeting of the company, of which Mr Guiver was a shareholder, he "assaulted Ben Merrett, the Chief Executive officer of the company, by kneeing him in the groin".

6

It is the summons which ultimately came before the District Judge at which both prosecution and defendant were represented by leading counsel. At the beginning, Mr Baughan QC and Mr Mitchell, on behalf of Mr Guiver, submitted that the information was invalid on the basis that Gladstone PLC had no right or authority to lay information and thus no locus. It was also argued that the prosecution was an abuse of process. The District Judge did not deal with this latter argument, and I say no more about that. He did, however, rule as follows:

"1. In the circumstances of this case which concerns an incident at a private annual meeting to which access is restricted to a limited class of persons I do not consider that it is a matter of public policy or utility or one which concerns public morals and therefore the power to lay an information is not open to 'any person'. (See footnote 2 in Stones to Rule 4(1) of Magistrates' Courts Rules 1981)

2. This case concerns an individual grievance and as such it is the aggrieved Mr Merrett (the victim of the alleged assault) who is the only person entitled to lay an information either personally or through his solicitor.

3. A body corporate such as Gladstone plc is not a person 'individually aggrieved'.

4. In any event if Gladstone plc could properly fall within the definition of a person individually aggrieved they had no authority, express or implied, to exercise any power to lay an information and were in effect acting ultra vires.

5. Gladstone plc has no locus standi in the proceedings for the aforementioned reasons.

6. The information is invalid and as such this Court has no jurisdiction to try the issue arising therefrom.

7. The proper person to have brought proceedings is Mr Merrett. He is the aggrieved individual."

7

As a result, the learned District Judge dismissed the summons, going on to decide, perhaps somewhat oddly in the light of his decision, that the defence costs should be met out of central funds.

8

The claimant, Gladstone PLC, seeks both to quash the rulings and also seeks an order requiring the District Judge to reinstate the summons and continue the hearing. Mr Guiver, on the other hand, supports each of the findings of the District Judge, arguing that these are decisions of fact and should not be revisited by this court, not least because the claimant did not proceed by way of case stated with a shorter time limit, but rather by way of judicial review. In many cases, decisions of magistrates are appropriately challenged only by way of case stated because findings of fact are essential to the determination of the question in issue. In this case, notwithstanding Mr Guiver's contentions to the contrary, the facts are, in reality, comparatively clear. The issues are questions of law which, in my judgment, are susceptible to challenge by judicial review.

9

Although not in the order decided by the District Judge, let me first deal with the suggestion that Gladstone PLC have no power to institute, whether itself or by solicitors, criminal proceedings. First, the District Judge observed, there is no doubt that bodies corporate can prosecute, such proceedings being commenced by a duly authorised officer laying an information, as evidenced by the activities of such organisations as the Federation Against Copyright Theft (FACT), The British Phonograph Industry (BPI), both of whom represent the music industry, or, again, for example, the RSPCA. District Judge Berg rejected the argument that there was no difference. He said:

"The bodies referred to by way of example are trade organisations, one of whose main functions or objects is the protection of and the promotion of their members' welfare. I am satisfied that their ability to prosecute by way of laying information derives from it being a matter of public policy and one which concerns the public morals. It is not only to protect their members' financial interests or welfare, it is to protect unsuspecting members of the public from, eg, purchasing counterfeit or pirated goods. I do not believe that the same argument can be sensibly advanced as a basis for Gladstone plc to act in the manner they purported to in this case."

10

To consider that argument, it is necessary to analyse the purpose for which prosecutions can be brought or, to put it another way, whether there is any limitation on the right to bring a prosecution. I am content to take the statement of law identified in Stones Justice Manual 2004 Volume 2 paragraph 1–5933 at footnote 2 in these...

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