R Augustine Housing Trust v Bolton Magistrates Court (Interested Party)

JurisdictionEngland & Wales
JudgeTimothy Dutton,His Honour Judge D. C Mitchell
Judgment Date2013
Neutral Citation[2013] EWHC 4399 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/11504/2013,CO/1030/2012
Date2013

[2013] EWHC 4399 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Timothy Dutton QC

(Sitting as a Deputy High Court Judge)

CO/1030/2012

Between:
The Queen on the Application of Augustine Housing Trust
Claimant
and
Bolton Magistrates Court
Interested Party
1

THE DEPUTY JUDGE: In this case, permission to apply for Judicial Review was refused on paper by Mr Justice Hickinbottom on 7 January 2013.

2

There was subsequently an application made orally for renewal by the Claimant, the Claimant being the Augustine Housing Trust. That application came before Ian Dove QC on 21 March 2013 and he granted permission to apply for Judicial Review on two grounds, namely whether:

"(1) The Magistrates were wrong to have refused to state a case for the opinion of the High Court.

(2) The Magistrates were wrong to have concluded that the failure to adjourn the application [and the failure to adjourn the hearing before the Court on the matter on 16 December 2011] did not amount to a procedural error/mishap when the Claimant had sent a letter seeking an adjournment."

3

He also gave directions for the claim to be amended so the grounds could be filed before seeking to continue based on those two questions.

4

The parties appear before me today through Mr Simon Butler on behalf of the Claimant Trust and Ms Sophie Cartwright on behalf of the Interested Party.

The history
5

The Claimant is a registered charity. By a summons dated 29 November 2011 issued by the Bolton Borough Council, that is the Interested Party, the Claimant was summonsed to appear before the Defendant Magistrates' Court for non-payment of rates for a period of 1 April 2011 to 1 April 2012 in the sum of £10,416.06 plus interest and costs, which came to a total figure of £10,516.96 in respect of premises beneficially owned by the Claimant of 135–137 Market Street, Farnworth in Bolton, Lancashire.

6

The summons was due to be heard on 16 December 2011. There was, however, a history which is briefly summarised in the correspondence which I have been referred to. A summons had been issued on 18 August 2011 for non-payment of rates by the charity in respect of the same premises. That summons had been withdrawn on or around 23 August 2011 so as to enable Mr Gregory of the Claimant Trust to have the further opportunity to provide the Council with information.

7

There was, therefore, a history which is elaborated upon further in the documentation provided to me (although I do not believe that this fuller history was provided at either of the hearings with which we are concerned in these proceedings), of the Interested Party seeking to obtain information from the Claimant Trust and being unsuccessful.

8

By way of background, on 18 February 2011 the Interested Party received information to the effect that the premises were occupied and had been since the end of 2010 by the Claimant. That prompted the Interested Party to issue Charity Relief Forms for completion. These were not returned.

9

In March 2011 additional information was provided and further documentation was issued to the Claimant for completion. That, too, it is said in a witness statement provided in these proceedings, was not returned.

10

On 16 March 2011, officers of the Interested Party visited the premises and were informed by an adjacent occupier that they were empty.

11

On 7 April 2011 the Interested Party received completed forms from the Claimant indicating the property should be used for storage by a not-for-profit organisation. It was said that the storage service was offered at 50 per cent of market rental.

12

Thereafter on 6 May 2011 and 7 June 2011, officers on behalf of the Interested Party attempted to make contact with the Claimant to arrange an inspection and to confirm occupancy or the nature of the current use. Although they say they were given assurances that communications had been returned, none were in fact received.

13

On 29 July 2011 officers of the Interested Party made further contact with the Claimant and were given assurances that a return call would been made to ensure clarification and resolution of the outstanding matters. It is said that no such call was received.

14

In consequence of those matters, the summons was issued in August 2011, returnable on 23 August 2011 but on 12 August 2011 the Claimant submitted an application for charitable relief, which indicated that the premises were unoccupied. The Interested Party then, by letter of 18 August, accordingly withdrew the summons but sought additional information from the Claimant.

15

It has been said in submissions that that history or as much of it as was placed before me and the magistrates, was relevant to the question as to whether or not the magistrates should have exercised their discretion to adjourn the matter on 16 December 2011, when the second summons issued in November 2011 was due for its first hearing.

16

As to that history, I pick the matter up from the Trust's solicitor's letter of 14 December 2011, which is page 28 in the bundle. By this stage inspection of the premises had been booked for Friday, 9 December, which the Claimants say they had been unable to attend because of an electrical fault at the building and they said they would like to rearrange that appointment for early 2012. The letter continues:

"Our client is somewhat disturbed however by receiving a summons for non payment of business rates for the property, which would seem somewhat premature as it was listed for the 15 December and issued on the 29 November 2011, seemingly alluding to the fact that a decision had been regardless of what might have been revealed or discovered by an inspection at the property.

"Therefore, our client has no alternative but to instruct us in this matter; also with Counsel to act, if the need should arise."

17

The last two lines of the letter say:

"We therefore would propose that the matter is adjourned and confirmation of the adjournment is faxed to our office today by 4.30 pm, and a meeting with the trustee rearranged for before and legal course is taken."

18

Which I take to mean "any legal course is taken". The letter concludes: "We look forward to hearing from you."

19

The Rates Team Leader, Mr Robin Gibbons, on behalf of the Council, responded the following day by fax, thanking the Trustees for their letter of the 14th and saying, firstly:

"Please find attached a copy of my letter to your client, dated 18 August 2011. This followed the issuing of a summons for hearing on 23 August 2011. You will note that I agreed to withdraw the summons to give Mr Gregory the opportunity to provide certain information. It also listed some of the previous attempts we have made to make an appointment to visit the premises. I am still to receive any response from Mr Gregory to my letter."

20

In the next paragraph he says:

"In view of the cancellation of the hearing on 23 August 2011 it is my intention to proceed with an application for a liability order tomorrow. I will, of course, make the magistrates aware of your request although I note that the court should have received a copy of your correspondence anyway.

"Regardless of the outcome tomorrow I would appreciate any assistance you can provide in allowing us to undertake the inspection of the premises that we have been requesting for over six months now.

"Please contact me if you have any queries."

21

The magistrates, both on 16 December 2011 and when hearing the application to set aside the order made on 16 December 2011 were, in my judgment, perfectly entitled to take into account the efforts which had been made by the Council to make contact with the Claimants so as to see whether their contention that they may not be liable for the full rates was, in fact, made out.

22

There had been a history, which the letter of 15 December 2011 indicates, that involved ongoing efforts by the Council to make contact with the Claimants to inspect the premises so that there could be a confirmation as to whether or not they were liable for the rates which the Council sought.

23

Further, the summons which had been issued by the Bolton Magistrates' Court for non-payment of non-domestic rates, that is the summons which was due to be heard on 16 December 2011, stated that:

"At the hearing an application will be made for a liability order to be issued against you. If you do not come to court, the hearing will continue without you."

24

It follows from this history and from the terms of summons that the Claimants or, indeed, their solicitor should have been in no doubt both that the summons was going to proceed on 16 December if they did not attend and that it would be the intention of the Council, the Interested Party to proceed to seek a liability order on 16 December.

25

Turning to the events on 16 December 2011 themselves, it is common ground between the parties that the Borough Council, either themselves or because of the correspondence which I have just referred to already provided to the Court, through a combination of either or both of those things, made the Magistrates' Court aware of the correspondence from the Claimant of 14 December and of his response to it. The magistrates did not consider that an adjournment of the case was appropriate and they proceeded to make a liability order.

26

Thereafter, and, as the magistrates subsequently found, within a reasonable time, the Claimant Trust made an application under the inherent jurisdiction of the Magistrates' Court to seek to have the magistrates' order of 16 December 2011 set aside.

27

That matter came on...

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1 cases
  • Chelmsford Cars and Commercials Ltd v North Essex Justices
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 6 February 2020
    ...regard to the full history of this matter, as per R (on the application of Augustine Housing Trust) v Bolton Magistrates' Court [2013] EWHC 4399 (Admin), we considered that any hindrance caused to the applicant by our decision was a direct, just and foreseeable consequence of the applicant......

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