R Manorgale Ltd v Thames Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Mrs Justice Swift |
| Judgment Date | 22 January 2013 |
| Neutral Citation | [2013] EWHC 535 (Admin) |
| Docket Number | CO/5445/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 January 2013 |
[2013] EWHC 535 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
Mrs Justice Swift
CO/5445/2012
Mr J Wills appeared on behalf of the Claimant
The Defendant was not present and was not represented
This is an application for judicial review by permission given by Mr Justice Foskett on 23 November 2012, seeking to quash the decision on 5 March 2012 of the Thames Magistrates' Court to refuse the claimant's application for an order that its conviction, on 7 December 2011, of breaching an enforcement notice contrary to section 179 of the Town and Country Planning Act 1990 be reopened and the charge be heard again by a different Bench. That application was made pursuant to section 142 of the Magistrates' Courts Act 1980.
The enforcement notice in question required the demolition of two extensions to a dwelling house which had been erected without planning permission. The summons containing the charge is dated 2 September 2011. Notice of the summons dated 26 September 2011 was served on the claimant requiring its attendance at court on 12 October 2011. However it seems there were negotiations apparently along the lines of a possible agreement to allow the claimant to retain a smaller structure and in the event the hearing on 12 October 2011 was adjourned by consent.
It was adjourned again on 26 October to 23 November 2011. There is a dispute as to whether Mr Ball, on behalf of the claimant, had notice of this restored hearing. At all events he did not appear at court. The prosecution, appearing in this court as the Interested Party, states that on 23 November 2011 the magistrates adjourned the matter for two weeks to 7 December 2011. On 2 December the court sent out notice of the new date. Mr Ball received it on 6 December 2011, the day before the adjourned hearing. His account in his witness statement of 2 March 2012 of what happened thereafter is as follows. Paragraph 16:
"I was due to attend a meeting in Manchester on the morning of 7 December 2011 and I was unable to cancel it at such short notice. Immediately after seeing the notice I called the court and I spoke to a lady who gave her name as Claire. I explained to her that I will be unable to attend the hearing as I have only had a day's notice. She commented that it was really short notice. She said that she would notify the court and that I do not have to attend. I did not attend the hearing as I assumed that it would not go ahead."
We also have the listing officer's own note which I take to be effectively contemporaneous. She says this:
"Manorgale Limited called 6/12/11 at 1500. They only received the adjournment notice today and can't send anyone from the company for tomorrow's hearing. They asked if this can be adjourned for next week or the week after."
It is signed "Claire" and dated 6 December.
It will be seen that this note does not suggest or accept that the listing officer told Mr Ball that he need not attend. The lady who made the note has denied that she said anything of the kind and for my part I have to say I think it would be very surprising if she had.
On 7 December 2011 the prosecutor applied to proceed in the claimant's absence. This was acceded to. The Bench found the case proved and imposed a fine of £20,000, which is the statutory maximum if the case proceeds (as of course it did) in the Magistrates' Court. On 22 December 2011 solicitors instructed by the claimant applied under section 142 of the Magistrates' Courts Act 1980 to reopen the matter.
Section 142 provides:
"1. A Magistrates' Court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make."
Subsection 2:
"Where a person is convicted by a Magistrates' Court and it subsequently appears to the court then it would be in the interests of justice that the case should be heard again by different justices, the court may so direct."
The application under section 142 was listed for hearing on 5 March 2012. At the hearing Mr Ball's witness statement of 2 March 2012 was put in. The section 142 application was refused. The claimant's counsel made a note of the court's reasons. The note is not said to be verbatim.
It states:
"We have heard an application from the defendant to reopen the matter. We have heard from counsel and also had paperwork from the defendant. We have also heard from Hackney [I interpolate, the prosecutor] and their version of events. We have also had a case cited relating to Tower Bridge Magistrates. We have also heard a case synopsis and case history from the clerk. The Bench were informed of the situation and decided to proceed. Having carefully considered the matter we are not reopening this matter and we are dismissing the application."
This fails all together to give any reasons for the decision other than that the court had decided to proceed on the...
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