R v Basildon Justices and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SCHIEMANN |
| Judgment Date | 12 April 1994 |
| Judgment citation (vLex) | [1994] EWHC J0412-8 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/809/92 |
| Date | 12 April 1994 |
[1994] EWHC J0412-8
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Before: Mr Justice Schiemann
CO/809/92
MR ETHERINGTON and MISS ALLISON CLARE (instructed by Messrs Hook & Partners, Canvey Island, Essex) appeared on behalf of THE APPLICANTS
MR MORIARTY QC (instructed by The Basildon Justices) appeared on behalf of THE FIRST RESPONDENTS
MR J DINGEMANS (instructed by Bermans Solicitors, London) appeared on behalf of THE SECOND RESPONDENTS
Tuesday 12 April 1994
MR JUSTICE SCHIEMANNThis application for judicial review raises a point of some general interest to justices on which there is no direct authority, namely the extent of their duty when hearing an appeal against a levy of distress for non-payment of rates under Regulation 15 of the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989. In this judgment references to regulations are references to those regulations.
On 13 June 1991, the Basildon Magistrates made against Bridge Metals (Basildon) Ltd, a liability order pursuant to Regulation 12. That company was a subsidiary of the applicant holding company. The liability order was made because the court was satisfied that a sum had become payable by the subsidiary and had not been paid. They still did not pay, and so the rating authority instructed bailiffs to act under Regulation 14 and levy the appropriate amount by way of distress and sale of the goods of the subsidiary.
On 7 October 1991, the bailiffs attended at the subsidiary's premises and purported to enter into a "Walking Possession Agreement" in relation to a number of scrap cars and other property. On 29 October 1991, the bailiffs entered the site once more and seized a quantity of office items, a HGV and trailer.
On 4 December 1991, a summons was issued by a Justice of the Peace, summoning Basildon Council to appear before the justices to answer a complaint by the holding company under Regulation 15. There is before the court an application for judicial review against the justices in respect of how they dealt with the complaint when it came before them. In a nutshell they decided to do nothing, and the application is for mandamus to force them to do something.
This case turns largely on Regulation 15 of the regulations which reads so far as relevant as follows:
"(1) A person aggrieved by the levy of, or an attempt to levy, a distress may appeal to a magistrates' court.
(2) The appeal shall be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to the authority which levied or attempted to levy the distress to appear before the court to answer to the matter by which he is aggrieved.
(3) If the court is satisfied that a levy was irregular, it may order the goods distrained to be discharged if they are in the possession of the authority, and it may by order award compensation in respect of any goods restrained and sold of an amount equal to the amount which, in the opinion of the court, would be awarded by way of special damages in respect of the goods if proceedings were brought in trespass or otherwise in connection with the irregularity under regulation 14(7)."
What happened before the justices is not in dispute and is set out in an affidavit by the applicants' solicitor, Mr Hook, and another affidavit by the clerk to the justices, Pamela Matthews. I read from the latter affidavit:
"Counsel acting for the defendants, in this case Basildon Council, submitted the matter was too complex for this court to decide and more suitable for a higher court. Counsel said there was a major dispute whether there was a sale to the parent company, now in liquidation. There were doubts that this transaction was genuine and, despite seeing some documents, the defendants required disclosure of all documents relating to the transaction. This court did not have power to order disclosure. The case involved complex questions of title; the value of goods was high, namely £10,000, and compensation should only be ordered in clear and simple cases.
The following cases were quoted: R v Horsham Justices, ex parte Richards [1985] 1 WLR 986; R v Kneeshaw [1974] 2 WLR 433; and Raymond Lyons & Co Ltd v Metropolitan Police Commissioner [1975] 1 All ER 335.
Replying, Counsel for Holding & Barnes said the court was being asked to take a serious step. This was an appeal under recent regulations for which there was no case law as yet. Referring to the cases quoted, Counsel felt the analogy to the Police Property Act in the case of Lyons was closer, but Lord Widgery's dicta were 15 years ago. This case involved questions of fact and the company would show there was a transfer of goods and assets. It was within the competence of this court to decide on the facts.
I advised the magistrates that, although there was no specific provision under the regulation to refuse to hear the appeal, neither was there under the Police Property Act.
Nevertheless, case law had stressed that Magistrates' Courts should not hear cases where there were complex questions of title and high amounts of compensation being sought. The magistrates were referred in particular to the dicta of Lord Widgery CJ in the case of Raymond Lyons:
'But I think it worthwhile pointing out that there is a very close parallel between this summary procedure and the summary procedure now exercised by all criminal courts under the Criminal Justice Act 1972 to make compensation to injured persons as part of the disposal of a criminal case. It has been said over and over again that the latter summary procedure is not to be used in difficult cases involving tricky questions of title or large sums of money. It is much better that the civil courts should handle disputes of that kind. What is intended both in regard to compensation orders and orders under the Police (Property) Act 1897 in my judgment is that, in straightforward, simple cases where there is no difficulty of law and the matter is clear, the justices should be able to make a decision without involving the expense of civil proceedings. But I would actively discourage them from attempting to use the procedure of the Act in cases which involve a real issue of law or any real difficulty in determining whether a particular person is or is not the owner.'
The magistrates were advised that alternative proceedings were available in the civil courts. In those civil courts there would be greater powers to order disclosure, not available to the justices. The magistrates after consideration announced they would not hear the case in the interests of justice because of the complications of fact, law and title and determined that the matter was more suitable for the civil courts."
Mr Etherington, for the applicants, accepts that the justices were under no duty to make an order for compensation but submits that they were under a duty to hear evidence as to whether the levy was irregular, to come to a conclusion on that point and, if satisfied that it was irregular, then to consider whether or no to make an order awarding compensation.
Mr Dingemans, for the council, accepts that if the justices were under such a duty then they did not act in accordance with it. He submits, however, that the justices are under no such duty.
Mr Etherington's elegantly presented submissions ran as follows. First, the jurisdiction of a Magistrates' Court is founded on Statute. He cited the Magistrates' Court Act 1980, section 53, in relation to civil proceedings. That section reads:
"(1) On the hearing of a complaint, the court shall, if the defendant appears, state to him the substances of the complaint.
(2) The court, after hearing the evidence and the parties, shall make the order for which the complaint is made or dismiss the complaint."
He drew attention to the similar wording in relation to the criminal jurisdiction which appears in section 9 of the Magistrates' Courts Act 1980:
"(1) On the summary trial of an information, the court shall, if the accused appears, state to him the substance of the information and ask him whether he pleads guilty or not guilty.
(2) The court, after hearing the evidence and the parties, shall convict the accused or dismiss the information."
Mr Etherington's second point was that the Magistrates' Court is obliged to hear and adjudicate upon an information and, by analogy, a complaint. He cited in the course of his submission a number of cases of which I shall only refer to In re Harrington [1984] 1 AC 743. That was a case where:
"…. [a] defendant pleaded not guilty to charges of assault. On the prosecution's application for an adjournment, the justices announced that the case would be heard on a date when the defendant would be away on holiday. Counsel for the defendant objected and the justices, without having inquired whether the prosecution were able to proceed, dismissed the informations. Counsel for the prosecution, who had been in a position to proceed immediately, albeit without a principal witness, thereupon requested the justices to reconsider their decision but, on the advice of their clerk, the justices decided that the dismissals had to stand. The prosecution applied for judicial review by way of certiorari to quash the decision of the justices and mandamus to require them to hear the evidence against the defendant on the...
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