R v Manchester City Magistrates' Court, ex parte Davies
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE O'CONNOR,LORD JUSTICE NEILL,SIR ROGER ORMROD |
| Judgment Date | 29 July 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0729-6 |
| Date | 29 July 1988 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0690 |
[1988] EWCA Civ J0729-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Simon Brown J.)
Royal Courts of Justice
Lord Justice O'Connor
Lord Justice Neill
and
Sir Roger Ormrod
88/0690
MR. TURNER (instructed by the Clerk to the Justices) appeared on behalf of the Appellants (Respondents).
MR. P. SILVESTER and MISS J. BERNARD (instructed by Messrs Linder Myer, Manchester) appeared on behalf of the Respondent (Applicant).
On 16th July 1986 the applicant was committed to prison for 90 days for non-payment of rates by the Manchester justices. On 2nd September 1986 he as given leave to move for judicial review of that order and on 5th September he was released on bail. On 22nd September 1987 Webster J. quashed the decision of the magistrates and adjourned the issue as to whether the applicant was entitled to recover damages against them. On 16th November 1987 Simon Brown J. gave judgment holding that the magistrates had exceeded their jurisdiction and that the applicant was entitled to damages to be assessed. The respondents appeal against that decision.
The appeal raised two important issues of law affecting the liability of justices sued for damages for false imprisonment. Justices are afforded protection by statute under Part V of the Justices of the Peace Act 1979. The provisions with which we are concerned were formerly contained in the Justices Protection Act 1848. Sections 44 and 45 have to be read together. Section 44 protects a justice for an act done by him in the execution of his duty with respect to any matter within his jurisdiction unless it is proved that the act was done maliciously and without reasonable and probable cause. That protection is withdrawn for acts done outside or in excess of jurisdiction by section 45, but if the act complained of is done under any conviction or order no action lies unless the conviction or order has been quashed. I must set out the relevant part of subsection (1):
"(1) This section applies:-
(a) to any act done by a justice of the peace in a matter in respect of which by law he does not have jurisdiction or in which he has exceeded his jurisdiction, and
(b) to any act done under any conviction or order made or warrant issued by a justice of the peace in any such matter."
The first issue is whether the justices acted outside or in excess of their jurisdiction in committing the applicant to prison.
If that issue is decided in favour of the applicant the second issue under section 52 arises. I set out the section:-
" Limitation of damages
(1) The provisions of this section shall have effect where, in any action brought against a justice of the peace for anything done by him in the execution of his office as such a justice, the plaintiff is (apart from this section) entitled to recover damages in respect of a conviction or order, and proves the levying or payment of a penalty or sum of money under the conviction or order as part of the damages which he seeks to recover, or proves that he was imprisoned under the conviction or order and seeks to recover damages for the imprisonment, but it is also proved—
(a) that the plaintiff was actually guilty of the offence of which he was so convicted, or that he was liable by law to pay the sum he was so ordered to pay, and
(b) where he was imprisoned,that he had undergone no greater punishment than that assigned by law for the offence of which he was so convicted or for non-payment of the sum he was so ordered to pay.
(2) In the circumstances specified in subsection (1) above, the plaintiff shall not be entitled to recover the amount of the penalty or sum levied or paid as mentioned in that subsection or (as the case may be) to recover any sum beyond the sum of one penny as damages for the imprisonment, and shall not be entitled to any costs."
The question is whether the justices are protected by subsection (l)(b). I will consider these issues in turn but, before I do so, I must consider the provisions of the General Rate Act 1967 which brought the applicant before the justices.
The statute provides a comprehensive code for the recovery of unpaid rates. No action lies at the suit of a rating authority outside the provisions of the statute: Liverpool Corporation v. Hope [1938] 1 K.B. 751. The prime provision is section 96(1) which reads:-
"Subject to section 62 of this Act and to subsection (2) of this section, if any person fails to pay any sum legally assessed on and due from him in respect of a rate for seven days after it has been legally demanded of him, the payment of that sum may, subject to and in accordance with the provisions of this Part of this Act, be enforced by distress and sale of his goods and chattels under warrant issued by a magistrates' court; and, if there is insufficient distress, he may be liable to imprisonment under the provisions of this Part of this Act in that behalf."
It will be seen that there is no power to imprison until after a properly issued distress warrant has been executed and a nil or insufficient return has been made. Sections 97 and 99 make detailed provision for the issue and execution of the distress warrant. The provisions governing imprisonment so far as relevant are:-
" 102 Imprisonment in default of sufficiency of distress
(1) If the person charged with the execution of a warrant of distress for levying a sum to which some other person has been rated makes a return to the magistrates' court that he could find no goods or chattels (or no sufficient goods or chattels) on which to levy the sums directed to be levied under the warrant on that other person's goods and chattels, a magistrates' court may, if it thinks fit, and subject to the provisions of section 103 of this Act.
[(a)] issue a warrant of commitment against that other person, [or
(b) fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions (if any) as the court thinks just].
103 Inquiry as to means before issue of warrant of commitment
(1) Section 102 of this Act shall have effect subject to and in accordance with the following provisions:-
(a) on the application for the issue of a warrant for the commitment of any person, the magistrates' court shall make inquiry in his presence as to whether his failure to pay the sum to which he was rated and in respect of which the warrant of distress was issued was due either to his wilful refusal or to his culpable neglect;
(b) if the magistrates' court is of opinion that the failure of the said person to pay the said sum was not due either to his wilful refusal or to his culpable neglect, it shall not issue the warrant or fix a term of imprisonment."
In the present case a distress warrant had been properly issued and a nil return made in 1985. For the proceedings in July 1986 proper notice had been given and the applicant was before the court, it follows that the justices were entitled to embark upon the section 103 inquiry as to means and were acting within their jurisdiction when they did so.
As Webster J. has made clear in his judgment, that inquiry disclosed that there was no question of the applicant having wilfully refused to pay the rates. In the course of the hearing the applicant told the justices that in January 1986 his accountant had advised him to close down his business and to go bankrupt but that he had decided to see whether he could weather the storm. The justices came to the conclusion that he had been guilty of culpable neglect in failing to take his accountant's advice, but again as Webster J. pointed out that had nothing whatsoever to do with his failure to pay the rates. There was no causal connection between rejecting the advice of his accountant and the non-payment of the rates; for this reason Webster J. quashed the decision. It follows that the only opinion open to the court was that the failure to pay was not due either to wilful refusal or culpable neglect and in the result there was no power to imprison.
The very fact that the justices came to the conclusion that they did is strong evidence that they never carried out the inquiry required by section 103. An examination of the evidence filed on behalf of the justices demonstrates to my mind that they never did carry out the inquiry required by section 103. The affidavits of the three justices and that of their clerk show exactly what happened. I can summarise the proceedings as follows.
1. The rating officer opened the case, told the court that £9,303.83 was owing a portion of the 1985/86 rate. He gave the court the applicant's rating history and although the justices can't remember the details they must have been told that in the previous 12 months the applicant had paid off £6,000. The rating officer then gave them details of the applicant's income and expenditure as given to him or his colleagues outside the court room and told the court that the applicant had made no offer as to how the could pay off the sum due. The applicant was asked if he agreed with what the rating officer had said and he said that he did.
2. The applicant was asked what he wanted to say and he told the court what his domestic situation was, what his commitments were, how he had raised a loan on his house, sold his car and was waiting for the autumn when he expected a substantial revival of his business. In the course of what he said he told the court that his accountant had advised him in January 1986 and more than once since then that he should close down his business.
3. The justices spent a considerable amount of time asking the...
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