Durham County Council v North Durham Justices

Where a summons has been lawfully served under Rule 99(1) of the Magistrates' Courts Rules 1981, magistrates have no discretion to require personal service instead. The word “may” gives the prosecution a choice between the prescribed methods of service. It does not confer a power on the court to select the method.

A policy or guidance requiring personal service because information useful for enforcement is absent may be challenged by judicial review. A case stated is generally unavailable before the justices have made a final determination, but judicial review may be appropriate where the real challenge is to an unlawful policy.

Durham County Council prosecuted alleged parking and driver-identification offences. The summonses had been sent by post to the defendants' last known or usual places of abode under Rule 99(1)(c) of the Magistrates' Courts Rules 1981.

Following guidance from the North Durham Justices' Chief Executive, the justices adjourned the proceedings and required personal service where specified identifying information, including dates of birth, was missing. The Council challenged that decision and the guidance by case stated and judicial review.

The central issues were whether Rule 99 gave the justices a discretion to require personal service and whether the challenge was procedurally maintainable.

1. Service of summonses. Section 11 of the Magistrates' Courts Act 1980 requires service in the prescribed manner before proceedings can begin in the defendant's absence. Rule 99(1) prescribes three alternative methods: delivery to the defendant, leaving the summons at the last known or usual place of abode, or sending it by post to that address.
2. The word “may” in Rule 99 confers a choice on the prosecution, not a discretion on the justices. Once one prescribed method has been used and service is proved to the satisfaction of the court, the justices have no power to require another method. The absence of additional information useful for enforcement did not affect the validity of postal service.
3. Section 7 of the Interpretation Act 1978 supported the conclusion that properly addressed, prepaid and posted service is effective unless the contrary is proved. The information sought by the guidance was not required by law to appear in the summons.
4. The justices had no jurisdiction to state a case before reaching a final determination. The court followed the principle identified in Streames v Copping [1985] 2 All ER 122, in the light of Atkinson v United States Government [1969] 3 All ER 1317.
5. Although judicial review of an interlocutory decision is generally approached with caution, the present challenge was properly directed to the unlawful policy and guidance. The court distinguished the caution expressed in R v Greater Manchester Justices ex parte Aldi GMBH & Co. KG (unreported, 13 December 1994).
6. The court declared that the justices had no power to order personal service where defendants had been lawfully served under Rule 99(1). The Council was awarded its judicial review costs, subject to the justices' opportunity to make written submissions.

Collins J directed the Council to lodge a judicial review claim to be heard with the case-stated appeal. Richards J granted permission and dispensed with the normal timetable.

High Court (Administrative Court) held that the case stated procedure was unavailable because there had been no final determination, but granted judicial review relief and declared that personal service could not be required where Rule 99(1) service had been effected.