Mathialagan, R (on the application of) v London Borough of Southwark & Anor

A magistrates’ court has no general common-law power to reopen a valid civil liability order merely because a party or adviser negligently failed to attend. A limited power may exist to correct a clear court mistake going to jurisdiction or procedural fairness where the resulting decision would clearly be liable to judicial review. Adequate notice of an adjourned hearing is sufficient under section 54 of the Magistrates’ Courts Act 1980. Where the absent party had been warned and the reason for the decision was implicit, Article 6 did not require detailed reasons or scrutiny of an unargued defence. The court suggested that Parliament should consider extending section 142 of the Act to civil proceedings.

The appellant challenged liability orders made by Camberwell Green Magistrates on 19 September 2003 for non-domestic rates relating to two properties. He and his solicitor-wife were absent after earlier adjournments. She had mis-diarised the resumed hearing despite written notice that it would proceed in his absence.

Beatson J refused permission for judicial review. On renewal, Leveson J also refused permission, holding that the absence and lack of detailed reasons did not breach Article 6. In the Court of Appeal, the appellant challenged the proof of occupation, the adequacy of reasons, notice under section 54 of the Magistrates’ Courts Act 1980, and the magistrates’ refusal to reopen the case. The central issue was whether the orders were unlawful or whether the magistrates had jurisdiction to reopen them.

The appeal was dismissed unanimously. Lord Justice Waller gave the substantive judgment. Lord Justice Carnwath and Sir William Aldous agreed.

1. Original liability orders. The challenge to occupation failed. After three or four hearings and repeated warnings, the local authority’s lists and supporting information made occupation the evident basis of liability. The District Judge was not required to insist on formulaic wording in the written material.
2. Reasons and fairness. Article 6 does not require detailed reasons in every judicial decision. Where the basis of the decision is implicit from the proceedings and material before the court, the duty may be satisfied. In magistrates’ proceedings, detailed reasons are not usual, and a party seeking fuller reasons may request a case to be stated. English v Emery Reinbold and Strick Limited [2002] WLR 385 and McKerry v Teesdale and Wear Valley Justices [2001] EMLR 5 supported that approach.
3. Notice. Section 54 of the Magistrates’ Courts Act 1980 required adequate notice of the resumed hearing. Written notice to the appellant’s solicitor of the fixed date was sufficient. The later mis-diarising of the date did not make notice inadequate. Rule 15 of the Magistrates Court Rules 1981 concerned trials of informations and did not apply to these civil proceedings.
4. Reopening proceedings. CPR 39.3 illustrated the kind of factors relevant where a civil court has an express power to set aside an order made in a party’s absence. But section 142 of the Magistrates’ Courts Act 1980 was confined to the criminal jurisdiction. The court therefore could not create a general common-law power to reopen valid civil proceedings where non-attendance resulted from the negligence of the party or adviser.
5. Limited common-law power. The authorities recognised, at most, a power to correct a clear mistake by the court going to jurisdiction or the fairness of the proceedings, where the resulting decision would clearly be quashed on judicial review. Liverpool City Council v Pleroma Distribution Ltd was confined to that type of court mistake. It did not assist where the decision was valid and the absence resulted from the solicitor’s error. Al Mehdawi [1990] 1 AC 876 confirmed that absence caused entirely by a party or adviser did not itself establish a breach of natural justice.
6. Procedural observation. The court expressed concern that an enforcement document generated by the local authority appeared to bear a court stamp. Regulation 14(5) of the Non-domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 required only written authorisation of the authority. The issue was obiter and required reconsideration, but did not affect the appeal.

• Court of Appeal (Civil Division): Permission was initially refused on paper. On renewal, permission was granted on a limited point after an adjourned hearing. The appeal was dismissed.
• Administrative Court, Queen’s Bench Division: Beatson J refused permission for judicial review on paper. On renewal, Leveson J refused permission, holding that the proceedings had not breached Article 6.