Miller -Foulds v Secretary of State for Constitutional Affairs

A court order may be proved by secondary evidence where the original order and court records are unavailable. Authenticated copies, supported by evidence from the official who prepared the order or record, may suffice. County court records satisfy statutory requirements if they contain the prescribed information; the legislation does not require a particular format. The court’s duty to keep records is discharged where officials keep the records on the court’s behalf. Declaratory relief is discretionary and should be refused where the declaration would serve no practical purpose, would not bind a necessary party, or would merely duplicate issues likely to be litigated elsewhere. Proceedings brought for that purpose may constitute an abuse of process.

The claimant sought declarations concerning the existence, validity and evidential status of a suspended possession order allegedly made by Brentford County Court in 1991. The original court file and records had been destroyed under an authorised retention and destruction procedure, but copies of the order and record card remained, together with evidence from a court official who had prepared them.

The dispute followed extensive possession proceedings between the claimant and Abbey National Building Society. Earlier decisions, including a Court of Appeal decision, had rejected challenges to the order, although the judge considered it uncertain whether the precise existence issue had been determined. The central issues were whether the county court had complied with its statutory record-keeping obligations, whether secondary evidence could prove the order, and whether the declarations would serve any useful purpose.

1. The claims were dismissed. The declarations would not bind Abbey, which was not a party, and the issues were likely to be litigated again in the Brentford proceedings. The claim therefore lacked practical utility and was abusive.
2. The court held that the record card was a proper court record. Section 12 of the County Courts Act 1984 required prescribed records to be kept, and regulations 2 and 3 of the County Court (Records of Proceedings) Regulations 1967 identified the required records and information. The legislation prescribed the information, not a particular form. The record card contained the parties’ details, the nature of the possession claim and a concise note of the judgment or order.
3. The statutory duty was to keep or cause records to be kept. It was therefore satisfied where court officials maintained the records, even without direct supervision by a district judge.
4. Secondary evidence was admissible to prove a court order where the best evidence was unavailable. MacDougal v Young [1826] Ry & M 393 and Dyson v Wood [1824] 3 B&C 449 supported that conclusion. The court treated the authenticated copy of the order, the copy record and Miss Fleming’s evidence as adequate secondary evidence.
5. Section 8 of the Civil Evidence Act 1995 permitted copies where authenticated. The copy order was authenticated by evidence of its preparation and correspondence with the record card. The fact that sealed copies had been produced by photocopying did not prevent them being original orders.
6. The application to stand over the trial and join Abbey was refused. It would cause further delay and expense, would not cure the lack of practical utility, and could not improve the evidential position. Permission to appeal was also refused. Costs were stood over pending any wasted-costs application.

The judgment describes earlier possession proceedings and appeals concerning the 1991 order, including an appeal to the Court of Appeal, which dismissed the claimant’s challenge. This judgment was a first-instance determination of the separate declaratory claim.