London Borough of Newham, R (on the application of) v Stratford Magistrates Court & Anor

A magistrates’ court has a limited common-law power to reopen a liability order made in its civil jurisdiction. The power is exceptional and should be exercised cautiously.

It requires a genuine and arguable dispute about liability, a substantial procedural error, defect or mishap, and a prompt application after the defendant learns, or should appreciate, that an order may have been made. Where orders are several years old, the court must investigate the timing of the defendant’s knowledge and any prejudice caused by loss of records or fading recollections. A general conclusion that reopening would be in the interests of justice is insufficient.

The Council sought judicial review of the Stratford Magistrates’ Court’s decision to set aside three Council Tax liability orders made against Selwyn Dublin between 2001 and 2003.

The orders were reopened after Mr Dublin asserted that he had not received the summonses and disputed liability on the basis that he had not occupied the relevant property. The District Judge found a genuine and arguable dispute, a substantial probability of procedural failure, and considered that the delay did not prevent relief.

The central issue was whether the District Judge had lawfully applied the exceptional common-law jurisdiction to reopen civil liability orders, particularly the requirement of promptness and the need to investigate prejudice.

1. The claim for judicial review succeeded. The decision of 30 April 2007 setting aside the three liability orders was quashed and the matter was remitted to the Stratford Magistrates’ Court for reconsideration.

2. Section 142 of the Magistrates’ Courts Act 1980 applies to criminal decisions and did not confer power to reopen Council Tax liability orders, which are civil matters. The Civil Procedure Rules 1998 provisions concerning the High Court and County Court did not apply to the Magistrates’ Court’s civil jurisdiction.

3. The court adopted the three criteria identified in R (on the application of Brighton and Hove City Council) v Brighton and Hove Justices [2004] EWHC 1800 (Admin): there must be a genuine and arguable dispute as to liability; a substantial procedural error, defect or mishap; and a prompt application after the defendant learns that an order has been made or has notice that one may have been made.

4. Mere non-receipt of a summons would not necessarily amount to a substantial procedural error. However, if non-attendance caused by an unforeseen mishap such as a traffic accident could satisfy that criterion, non-receipt of notice of the hearing might also do so.

5. The District Judge failed adequately to investigate promptness. He needed to establish when Mr Dublin first learned of the liability orders. He also needed to investigate whether setting aside orders made two and a half to five years earlier would prejudice the Council through unavailable records, lost evidence or faded recollections. The age of the orders made reopening exceptional, and the broad conclusion that it was in the interests of justice did not address the necessary considerations.

6. The remittal was not confined to delay. The Magistrates’ Court was to reconsider the application according to the applicable legal principles. The court declined to order that the matter be heard by a different District Judge and refused costs against the Magistrates’ Court, since the error of law did not constitute the exceptional conduct required for such an order.

The judgment itself describes the underlying proceedings before the Stratford Magistrates’ Court. The Council’s judicial review claim was considered on the papers by Silber J, who ordered a rolled-up hearing. The Administrative Court then quashed the Magistrates’ Court’s decision and remitted the matter for reconsideration.