Hussain, R (On the Application Of) v Kirklees Magistrates' Court

An application to set aside a liability order must satisfy the cumulative conditions identified in R (on the application of Brighton and Hove City Council) v Brighton and Hove Justices, including promptness. Promptness is assessed from the applicant’s perspective and is a mixed question of fact and law. The court must consider relevant contextual matters, including negotiations, arrangements concerning payment, related proceedings and professional advice. A delay may still be arguable where those matters could explain why the application was not made sooner. A magistrates’ court may refuse to state a case only where the proposed appeal is futile, misconceived, hopeless or academic. A merely weak or unlikely appeal is not necessarily frivolous.

The claimant sought judicial review of a district judge’s refusal to state a case concerning his refusal to set aside a liability order for non-domestic rates. The district judge had decided, as a preliminary issue, that the claimant’s application, made approximately 11 months after knowledge of the order, was not made promptly. He therefore did not consider the other conditions for setting aside the order.

The district judge refused to state a case on the basis that the proposed appeal was frivolous. The claimant challenged that conclusion, contending that relevant circumstances surrounding the delay had not been considered. The central issue was whether the proposed appeal was hopeless or whether there was an arguable point of law on the approach to promptness.

1. The judicial review was allowed. The court ordered the district judge by mandamus to state a case on the promptness issue only.

2. Under R (on the application of Brighton and Hove City Council) v Brighton and Hove Justices [2004] EWHC 1800 (Admin), three separate and cumulative conditions must be met before a liability order may be set aside: a genuine and arguable dispute as to liability, a procedural error, defect or mishap in the making of the order, and a prompt application after the applicant learns of the order or is put on notice that it may have been made.

3. The promptness requirement is self-standing. The question is assessed from the perspective of the person applying to set aside the order. Delay by the authority in obtaining the order is ordinarily irrelevant unless there is a real connection between that delay and the applicant’s delay.

4. Whether an application was prompt involves the drawing of inferences from primary facts and is, by analogy with Re Grayan Building Services Limited [1995] Ch 241 and Re Hitco 2000 Ltd [1995] 2 BCLC 63, a mixed question of fact and law. An appeal is arguable where relevant matters were omitted or irrelevant matters considered.

5. Potentially relevant matters included negotiations concerning payment of the rates, an intended sale under which the purchaser would discharge the liability, related liability-order proceedings, and the effect of solicitors’ conduct. It was arguable that such circumstances could justify allowing more time than the ordinary periods discussed in Brighton and Hove Justices. It was also arguable that a clear causal link between those circumstances and the delay was not essential.

6. Applying R v North West Suffolk (Mildenhall) Magistrates’ Court ex parte Forest Heath District Council [1997] EWCA Civ 1575; [1998] Env. L.R. 9, “frivolous” in this context means futile, misconceived, hopeless or academic. The proposed appeal was weak and its prospects were low, but it crossed the threshold of arguability and could not properly be characterised as frivolous.

The claim concerned a refusal by a district judge sitting at Kirklees Magistrates’ Court to state a case for an appeal against his decision refusing to set aside a liability order. The High Court allowed judicial review and issued mandamus requiring a case to be stated on promptness only.