MSA v London Borough of Croydon

A penal notice is not generally necessary on an Administrative Court order requiring a public body to act or refrain from acting. Failure to comply may be addressed through a finding of contempt and, where necessary, a further mandatory order. A finding against a public body vindicates the administration of justice and may be accompanied by costs. For private individuals or corporations, a penal notice may sometimes be appropriate, but it should not be added routinely.

The claimant sought a penal notice under R.S.C. O.45 r.7(4) on an order made against the defendant local authority. Written observations were invited on whether such a notice was necessary to permit enforcement for contempt or sequestration. The court considered the rules governing enforcement against public bodies, the position of the Crown, and the distinction between a finding of contempt and punitive enforcement.

1. The court declined to alter the Administrative Court’s existing practice. A penal notice is not necessary in an order made against a public body. Disobedience can be addressed by an application for a finding of contempt and, if required, a further mandatory order explaining the consequences of continued non-compliance.

2. A local authority is a body corporate for the purposes of R.S.C. O.45 r.7. The rule therefore appears, in principle, to cover an order requiring a local authority to do or abstain from doing an act. The absence of a penal notice does not prevent the court from addressing disobedience.

3. M v Home Office [1994] 1 A.C. 377 established that a finding of contempt may be made against a government department or minister even though punitive sanctions such as a fine or sequestration are unavailable against the Crown. The finding vindicates the requirements of justice and may be reinforced by an order for costs. The same principle applies to public bodies generally.

4. The court distinguished the non-punitive finding of contempt from the punitive enforcement mechanisms in R.S.C. O.45. Administrative incompetence may justify adverse findings and indemnity costs. If deliberate continued refusal occurs, the responsible individual may be brought before the court and a subsequent order may make the potential imprisonment or fine clear.

5. A penal notice may be appropriate for an order against a private individual or corporation where the circumstances justify it, but it should not be included routinely.

6. The request for a penal notice was refused, and the existing practice was confirmed.

First-instance decision. No prior appellate decision is stated in the judgment.