Durham County Council v North Durham Justices

The Divisional Court held that magistrates have no power to require personal service of a summons where service has been lawfully effected in accordance with Rule 99(1) of the Magistrates' Courts Rules 1981. The court construed Rule 99 in light of section 11 of the Magistrates' Courts Act 1980 and section 7 of the Interpretation Act 1978, concluding that the word "may" in Rule 99 confers on the prosecutor a choice among statutory methods of service rather than a discretionary power on the magistrates to demand a particular method. The Justices' guidance and practice requiring personal service for cases in which certain identifying information was missing was therefore unlawful and was quashed or declared incompatible with the statutory scheme.

The court also held that a case stated was inappropriate where the justices had not reached a final determination, but that judicial review was an appropriate route to challenge the guidance. Costs were awarded to the claimant, with the magistrates given an opportunity to make submissions.

Background and parties: Durham County Council (the claimant and prosecuting authority) challenged guidance and practice adopted by the North Durham Justices in which, where certain identifying details were absent from summonses, the justices adjourned hearings and directed personal service of summonses. The proceedings reached the Divisional Court following a case stated by the justices and directions by Collins J that a claim for judicial review be lodged; Richards J granted permission.

Nature of the claim: The claimant sought judicial review of the justices' practice and a declaration that the guidance and the adjournment orders requiring personal service were unlawful.

Issues framed:

• Whether Rule 99(1) of the Magistrates' Courts Rules 1981 permits magistrates to require personal service of a summons where the prosecutor has used one of the methods in Rule 99(1).
• Whether the justices had jurisdiction to state a case at interlocutory stage where no final determination had been made.
• Whether the guidance issued by the justices' chief executive and the resulting practice were lawful.

Facts and procedure: The council had served summonses by post in accordance with Rule 99(1)(c) in prosecutions for parking-related offences under the Road Traffic Regulation Act 1984 (notably section 47 and the identification provisions of section 112). The justices, following written guidance from their chief executive requesting certain "essential information" and stating that summonses lacking it should be personally served, adjourned hearings for personal service. Some cases were later withdrawn or disposed of. The council sought relief by way of judicial review and appeal by way of case stated; the justices did not appear.

Court's reasoning and conclusion: The court analysed section 11 of the Magistrates' Courts Act 1980 and Rule 99(1). It concluded that Rule 99 offers prosecuting authorities a statutory choice of methods of service and that once service has been proved in accordance with the rules magistrates have no power to demand an alternative method. Section 7 of the Interpretation Act 1978 supported the view that service by post, if properly addressed and posted, is effective. The justices therefore misconstrued Rule 99 and exceeded their powers in ordering personal service. The court found a case stated inappropriate where no final determination had been made but accepted that judicial review was a proper vehicle to impugn unlawful guidance. The court quashed the adjournment order (or at least declared it unlawful) and indicated it would make a formal declaration; costs were ordered in favour of the claimant subject to submissions from the justices.

The court allowed the claimant's challenge. It held that the justices had no lawful power to require personal service where the prosecutor had lawfully served summonses under Rule 99(1) of the Magistrates' Courts Rules 1981; the order to adjourn for personal service was unlawful and was quashed (or declared unlawful). The court awarded costs to the claimant subject to written submissions from the justices within a specified time.

The matter came to the Divisional Court after the North Durham Justices stated a case on 24 January 2004. On 16 February 2004 Collins J directed the council to lodge a claim for judicial review to be heard with the appeal and Richards J granted permission in writing and dispensed with the normal timetable. The justices chose not to appear in these proceedings.