Brighton and Hove City Council, R (on the application of) v Brighton And Hove Justices

A magistrates’ court has an exceptional inherent power to set aside its own liability order. A genuine and arguable dispute about liability is necessary but insufficient. Ordinarily, the order must have resulted from a substantial procedural error, defect or mishap, and the application to reopen it must have been made promptly after the defendant learned, or had notice, that an order might have been made.

Promptness normally means days or, at most, a very few weeks. A broad inquiry into what is reasonable and in the interests of justice gives insufficient weight to finality. Although case stated is normally the appropriate means of challenging a magistrates’ error of law, the High Court retains a discretionary power to grant judicial review.

The council sought judicial review of a decision by justices to set aside three liability orders for unpaid national non-domestic rates. The orders had been made in 1996 and 1997. The ratepayer applied to reopen them in 2003, after bankruptcy proceedings had been commenced.

The ratepayer argued that the council should have appealed by way of case stated and that the justices had properly exercised their discretion. The central issues were whether judicial review remained available and whether the justices had lawfully exercised their exceptional power to reopen liability orders.

1. The claim succeeded. Although an appeal by way of case stated was the appropriate and normal procedure for challenging the justices’ alleged error of law, the High Court retained jurisdiction to quash an unlawful decision on judicial review. The procedural objection had been raised late, the Magistrates’ Court did not object, and the chosen procedure caused the ratepayer no prejudice. The court therefore exercised its discretion to determine the claim: R (Magon) v London Borough of Barking and Dagenham distinguished; R (Rowlands) v Hereford Magistrates Court [1998] QB 110 considered.

2. A magistrates’ court possesses an inherent power to correct an unlawful liability order made in excess of jurisdiction. That power is exceptional and must be exercised cautiously. A genuine and arguable dispute about substantive liability is a necessary condition, but it does not suffice.

3. Ordinarily, the court must also be satisfied that the liability order resulted from a substantial procedural error, defect or mishap and that the application to set it aside was made promptly after the defendant learned, or had notice, that an order might have been made. Liverpool City Council v Pleroma Distribution Ltd [2002] EWHC 2467 (Admin) was explained and applied. Its rejection of an absolute temporal limit did not authorise delay.

4. A procedural mishap need not have been caused by the court or local authority. It may include an accident preventing attendance without the court’s knowledge. Mere non-attendance does not suffice where the defendant knew of the hearing but, without good reason, assumed no order would be sought, went abroad without arranging representation, or otherwise took no protective step.

5. Promptness normally requires action within days or, at most, a very few weeks. It does not extend to months or a year. A person who knows that a summons has been issued and makes no inquiry after its return date will not generally obtain reopening merely because enforcement occurs later.

6. The justices failed properly to address whether a substantial procedural defect existed. The ratepayer’s fax showed that he knew of the second summons before the corresponding liability order was made. There was no finding that the other summonses had failed to come to his attention or that any other serious procedural defect had occurred. The justices instead applied an excessively broad test of reasonableness and the interests of justice, which gave inadequate weight to finality. Their decision was not open to them. The court reserved the precise form of order pending submissions.

The council brought a first-instance claim for judicial review of the justices’ decision to set aside three liability orders. Permission to apply for judicial review was granted, and the substantive hearing was adjourned twice before determination. No appellate history is otherwise stated in the judgment.