R v Leicester City Justices, ex parte Barrow and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE STAUGHTON,SIR CHRISTOPHER SLADE
Judgment Date25 July 1991
Judgment citation (vLex)[1991] EWCA Civ J0725-2
Date25 July 1991
Docket Number91/0780

[1991] EWCA Civ J0725-2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(CROWN OFFICE LIST)

Royal Courts of Justice

Before:

The Master of the Rolls

(Lord Donaldson)

Lord Justice Staughton

Sir Christopher Slade (Not Present)

91/0780

The Queen
and
Leicester City Justices and Leicester City Council
Respondents
Ex parte Michael Barrow and Carol Eileen Barrow
Applicants

MR. ANTHONY SCRIVENER Q.C. and MR. ANDREW NICOL (instructed by the National Council for Civil Liberties) appeared for the Applicants.

MR. PHILIP HAVERS (instructed by The Treasury Solicitor) appeared as amicus curiae.

THE MASTER OF THE ROLLS
1

The Issue

2

Mr. and Mrs. Barrow ("the applicants") live at 57, Allinson Close, Leicester and each was admittedly liable to pay a community charge of £.405 for the year 1990–91, the charge being payable by 10 instalments. They fell into arrears and the Leicester City Council issued a summons seeking what is known as a liability order (Regulation 29 of the Community Charges (Administration and Enforcement) Regulations 1989). The beauty of a liability order from the point of view of local authorities is that (a) it subjects the community charge payer to an obligation, if asked, to provide the local authority with information as to the identity of his employer and his sources of income (Regulation 31) and (b) entitles the local authority of its own motion and without the intervention of a court to make an attachment of earnings order (Regulation 32). On 6th August 1990 the Leicester City justices made such orders against both Mr. and Mrs. Barrow in the sum of £375 and £5 costs, a figure which reflected the fact that they had each paid £30 towards their liability in respect of the charge.

3

The applicants sought, and Webster J. granted them, leave to seek judicial review of these orders. In substance, and so far as is material to this appeal, the grounds upon which they sought relief were that the justices had erred in refusing to allow them to have the assistance of what has come, misleadingly as I think, to be known as a "McKenzie friend". In this case he took the form of a Mr. Robert John. The substantive application was refused on 21st December 1990 by a Divisional Court of the Queen's Bench Division consisting of Tasker Watkins L.J. and Otton J. (see [1991] 2 W.L.R. 974) and the applicants have now appealed.

4

The hearing before the justices

5

I take the facts from the very helpful affidavit of the chairman of the bench which heard the applications for liability orders (Mrs. Olive M. Barkby). In accordance with normal practice, apart from assisting by filing an affidavit as to the facts, the justices took no part in the judicial review proceedings, leaving it to the City Council to seek to uphold their order if so advised. In the event the City Council took no part in the proceedings, but both the Divisional Court and this court were assisted by an amicus instructed by the Treasury Solicitor—Mr. Richards in the case of the Divisional Court and Mr. Havers in the case of this court.

6

The list consisted of some 300 summonses under the Community Charges Regulations which had been set down for hearing in blocks of 100 timed for 9.30 a.m., 10.30 a.m. and 11.30 a.m. There is no reason to suggest that this was unrealistic since in the event only 12 defendants, including the applicants, appeared in person and the list was disposed of during the morning by the making of about 130 liability orders, the remainder of the summonses not being effective either because the charge had been paid or because the local authority did not wish to proceed.

7

The applicants were amongst those minded to dispute their liability. Furthermore they wished to be assisted by Mr. John as a "McKenzie friend". Ms Vereena Jones, a solicitor of the Leicester Rights Centre, informed the bench that she was instructed on behalf of the applicants to request the court to allow Mr. John to provide such assistance, but that she was not instructed to appear on their behalf in relation to the merits of their opposition to the making of a liability order. She referred only to the headnote of the report of McKenzie v. KcKenzie [1971] P. 33 which reads "every party had the right to have a friend present in court beside him to assist by prompting, taking notes, and quietly giving advice" and asserted that the bench had no discretion in the matter. The clerk to the court informed Ms Jones that this was the fifth such application to the bench, which was familiar with this decision.

8

The justices had, I think in the context of previous such applications, had their attention drawn by the clerk to an article by Mr. C. T. Latham which had appeared in the Justices of the Peace Journal on 3rd August 1974 entitled "The McKenzie Friend" and to the relevant parts of Stone's Justices' Manual. He had also advised the bench that they possessed inherent power to regulate court procedure in the interests of justice and in order to secure and promote convenience, expedition and efficiency in the interests of justice and that the bench could permit the clerk to examine witnesses on behalf of an unrepresented party who was not competent to do so himself.

9

The chairman's affidavit continued:

"We were unaware of Lord Denning's remarks in Mercy v. Persons Unknown [1974] (referred to in Mr. C. T. Latham's article) disapproving of a non-lawyer being allowed to act as a 'McKenzie friend' and we concurred with the view expressed by the learned author of that article, for the reasons he gives, that we had power to exercise a discretion in relation to such an application. Ms Jones had said nothing to persuade us otherwise. We concluded, having regard to the various authorities, that the parties before us did not have an absolute right to the assistance of a 'McKenzie friend' and that we had a discretion to exercise.

The matters before us were essentially default proceedings and the issues were simple and straightforward and bore no comparison to the complex issues of the case of McKenzie. Ms Jones had not advanced any argument to suggest that the proceedings were beyond the capacity and understanding of her clients. The fact that they had not received any communication regarding payment was not in any event capable of amounting to a defence to a making of a liability order provided we were satisfied the documents had been sent by the local authority.

We had been advised by our clerk of the matters the local authority had to prove and the defences which could be raised and that subject to proof by the local authority and the absence of a defence we were statutorily obliged to make a liability order. These were not, in our view, difficult issues, but simple matters of fact which could quite easily be dealt with by Mr. and Mrs. Barrow in person.

We also accepted our clerk's advice that we possessed an inherent power to regulate court procedures in the interests of justice and that we could, if necessary, permit the clerk to examine witnesses on behalf of an unrepresented party. We were satisfied that the parties before us would not be prejudiced or disadvantaged in any way at all if they did not have the assistance requested and after a brief discussion we refused their applications for a 'McKenzie friend'. Ms Jones then withdrew from the case and took no further part in the proceedings."

10

Later in the affidavit the chairman stated:

"Prior to the hearing of the cases against Mr. and Mrs. Barrow, we had dealt with six applications for liability orders. In one case we had allowed a 'McKenzie friend' where the defendant had difficulty due to language problems following the proceedings; in three other cases applications for McKenzie friends had been refused. In two of the cases we had adjourned the hearings to another day because in one case the defendant was ill and in the other he was working out of the country and could not return in time for the hearing. No one had asked to be represented by the duty solicitor or, for that matter, any other solicitor."

11

When it came to a consideration of the merits of the Leicester City Council's summonses, Mr. Sharman, an officer of the Council, gave sworn evidence that the community charge had been set, fixed and published and that the names of the applicants appeared on the Community Charges Register for the period in question. He said that demand notices had been sent to the applicants by first class post between 19th March 1990 and 4th April 1990 and that a "reminder" [under Regulation 28] had been sent to them by first class post on 10th July 1990. Mr. Barrow declined an invitation by the clerk to question Mr. Sharman, but in sworn evidence stated that he had not received either the demand notice or the reminder notice and that the first he knew of the proceedings was when he received a summons. He added that, although he had lived in Allinson Close since 1977, on occasions some of his post was misdelivered to a similar address in Birstall, Leicestershire. Mrs. Barrow declined to question Mr. Sharman or to give evidence herself saying that her evidence would be the same as that of her husband.

12

The chairman's affidavit concluded:

"After being referred by our clerk to section 233 of the Local Government Act 1972 we were satisfied that it was only necessary for the Council to prove to us ( interalia) that the notices had been properly sent and that it was not necessary for the Council to prove that the notices had been received.

After a brief consultation, no defence having been raised, we were satisfied the Council had proved their case and that the community charge claimed was payable by Mr. and Mrs. Barrow and had not...

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