R (Brighton and Hove City Council) v Brighton and Hove Justices and Michael Hamdan
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stanley Burnton,MR JUSTICE STANLEY BURNTON,MR JUSTICE STANLEY BURTON |
| Judgment Date | 29 July 2004 |
| Neutral Citation | [2004] EWHC 1980 (Admin),[2004] EWHC 1800 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | co/3654/2003,Case No: CO/3654/2003 |
| Date | 29 July 2004 |
[2004] EWHC 1800 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Justice Stanley Burnton
Case No: CO/3654/2003
The Queen On The Application Of
Iain O'Donnell (instructed by Legal Services, Brighton and Hove City Council) for the Claimant
Patrick Hamlin (instructed by Paul Gromett & Co) for the Interested Party
The Defendant Magistrates' Court did not appear and was not represented.
In these proceedings the Claimant ("the Council") seeks judicial review of the decision of the Defendant justices made on 28 May 2003 to set aside liability orders made by that Court as long ago as 30 October 1996, 19 February 1997 and 23 July 1997 requiring the Interested Party ("Mr Hamdan") to pay specified amounts totalling £5,734.55 alleged to be due as national non-domestic rates ("rates") in respect of the property at 1 Palmeira Avenue Mansions, 21 Church Road, Hove ("the property"). The Claimant contends that the decision of the justices was one that no reasonable bench correctly applying the law could have made.
It was submitted on behalf of Mr Hamdan:
(a) That the Council should have proceeded by appeal by way of case stated, and that this Court could not, or should not in the exercise of its discretion, grant relief in judicial review proceedings;
(b) That the justices' decision was one that they were entitled to make in the exercise of their discretion.
The undisputed facts
Mr Hamdan has always disputed his liability for rates for the property.
The first relevant summons for non-payment of those rates was issued on 16 October 1993, for service on Mr Hamdan at the property. The first liability order was made, as mentioned above, on 30 October 1996. Mr Hamdan did not appear at the magistrates' court at the hearing.
The second summons was issued on 4 February 1997, again for service at the property. The second liability order was made on 19 February 1997. Again, Mr Hamdan did not appear at the magistrates' court when the order was made.
The third summons was issued on 13 June 1997. As before, Mr Hamdan did not appear on the return day, and a liability order was made on 23 July 1997.
Mr Hamdan has paid nothing on account of the sums ordered to be paid by the liability orders.
On 19 December 2002, the Council served a statutory demand on Mr Hamdan, based on the outstanding liability orders. He did not comply with it. The Council issued and served a bankruptcy petition, based on the sums still outstanding. Mr Hamdan obtained an adjournment of the bankruptcy proceedings to give him the opportunity to apply to set aside the liability orders.
By letter dated 14 April 2003, Mr Hamdan's solicitors asked the magistrates' court to allot a hearing date for an application on his behalf to set aside the liability orders. The letter enclosed a copy of his affidavit sworn in the bankruptcy proceedings and stated:
"… you will note that it is our client's intention to have the question of the Liability Notice re-heard.
The situation is this: It is our client's contention that the property never was an office unit and that the Liability Order made is therefore incorrect."
The court listed Mr Hamdan's application for hearing on 28 May 2003. The bench consisted of two lay magistrates. At the hearing, Mr Hamdan was present and represented by his solicitor, Paul Gromett; the Council was represented by Paul Jenkins, a senior court officer in the Council's recovery team. He is not legally qualified. Mr Hamdan gave evidence, on the lines of his affidavit sworn in support of his application for the adjournment of his bankruptcy proceedings. Mr Jenkins produced documents from the Council's file, and Mr Hamdan was asked about them. Precisely what documents were produced is not clear, but Mr Hamdan accepts that they included:
(a) a copy of the second summons on which an employee of the Council (presumably Mr Walter) had noted that Mr Hamdan had telephoned on 18 February 1997 and said that he did not occupy the property, and had a property in 19 Church Road only, and would put details (presumably of his position) in the fax; and
(b) a fax dated 18 February 1997 to Mr Walter referring to a telephone call earlier that day in which Mr Hamdan referred to the second summons and stated that he did not occupy the property, and gave details of the property he did occupy.
There appears to have been some confusion in Mr Jenkins' mind as to what decision was made by the justices on 28 May 2003. He thought that the magistrates had simply adjourned the matter to be heard by District Judge Arnold on 8 July 2003. When the case came before her, District Judge Arnold expressed the view that the magistrates had set aside the liability orders. She expressed doubt as to the jurisdiction of the justices to set aside the liability orders, and there was discussion as to a challenge to their decision by judicial review. She adjourned the matter pending the anticipated judicial review proceedings.
On 9 July 2003, the Council wrote to the Magistrates' Court informing it of the proposed judicial review and asking for a copy of the Justices' reasons. The Magistrates' Court sent a copy of the reasons enclosed with a letter dated 14 July 2003. The reasons are set out in the Annex to this judgment, with paragraph numbering added.
The Council commenced these proceedings on 31 July 2003.
The course of the judicial review proceedings
Neither the Magistrates' Court nor Mr Hamdan filed an Acknowledgment of Service. On 14 October 2003, Keith J granted the Council permission to apply for judicial review.
By letter dated 20 January 2004, the Magistrates' Court informed the Council and the Administrative Court that it accepted that it had acted outside its jurisdiction by reopening the liability orders: the justices accepted that they had exceeded their limited powers to re-open the liability orders in question.
These proceedings came before Henriques J on 28 January 2004. He had before him a draft order to quash the Magistrates' decision to set aside the three liability orders, signed on behalf of the Claimant and the Magistrates' Court. It recited that Mr Hamdan's consent had not been obtained because he was "uncontactable". However, counsel appeared for Mr Hamdan and opposed the quashing of the order of 28 May 2003. His skeleton argument took for the first time the preliminary procedural point that judicial review proceedings were inappropriate, and that the Council should have proceeded by way of case stated. In addition, it was submitted that the Council were not in any event entitled to the order they sought: the justices had had a discretion whether to set aside the liability orders and had, it was contended, properly exercised it. Henriques J adjourned the hearing and gave directions.
On 17 February 2004, the Magistrates' Court again wrote to the Administrative Court Office. It repeated that it was "of the view that the justices exceeded their limited powers to re-open the relevant liability orders." The letter continued:
"As far as whether any appeal should be by way of case stated or judicial review, we were initially of the view that judicial review was the appropriate appeal procedure as we understood the challenge to be on the basis that the court failed to exercise its jurisdiction properly based on procedural impropriety. We would not however wish to make any representations beyond this and will of course abide by any ruling of the Court.
I also understand that some reference was made to the case possibly being re-opened. Our view is that it is not now appropriate to re-open the case given the disputes that still surround the case and the fact that Brighton and Hove City Council do not, as I understand it, agree to this course of action."
These proceedings came before Lindsay J on 31 March 2004. Unfortunately, it was again adjourned, on the application of the Council, apparently for them to deal with an issue raised in Mr Hamdan's skeleton argument.
The hearing before me took place on 1 July 2004.
Did the Justices make a decision to set aside the three liability orders?
This issue was not raised in the Council's claim form or in Mr O'Donnell's skeleton argument. I address it for the sake of completeness in the light of Mr Jenkins witness statement and that of Paul Grommett, Mr Hamdan's solicitor.
These judicial review proceedings are predicated on the Justices' having made a decision on 28 May 2003 to set aside the three liability orders that had been made against Mr Hamdan. The Justices' have given reasons for their decision. Regrettably, their formal decision is not in evidence. It is nonetheless clear that they did make that decision on that date.
Judicial review or appeal by way of case stated?
In support of his submission that the proceedings by way of judicial review were ill-founded, Mr Hamlin relied on the decision of the Court of Appeal in R (Magon) v London Borough of Barking and Dagenham, an unreported judgment of 7 May 1998. In that case, Mummery LJ stated that the case stated was the appropriate procedure to question the correctness of the liability order that had been made by magistrates. In my judgment, that decision is to be distinguished. In the present case what is questioned is not the correctness of the original liability orders, but whether the justices could properly have set those liability orders aside. Whether Mr Hamdan was liable to pay...
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