Hever Resort Hotel Ltd, R (on the application of) v Birmingham Magistrates' Court & Anor

A claimant who elects not to attend a magistrates’ court hearing cannot ordinarily challenge the resulting exercise of discretion by judicial review on grounds which could have been advanced at that hearing. Where the statutory conditions for issuing an electricity-disconnection warrant were met, and the magistrates were entitled to exercise their discretion, the absence of an arguable unlawfulness defeated permission for judicial review. An alleged subsequent contract must be established by the evidence and correspondence; ambiguous use of a pronoun in an email did not create a deemed contract. An interim injunction dependent on the judicial-review claim therefore failed.

Hever Resort Hotel Ltd sought urgent injunctive relief requiring Ampower UK Ltd to restore electricity and reinstate the meter at a hotel managed by the claimant. Ampower had obtained a warrant from Birmingham Magistrates’ Court under section 2(1) of the Electricity Act 1954 to enter and disconnect the supply, relying on arrears owed under a contract with Good Hotel Management Ltd.

The claimant argued that correspondence after a change in hotel management created a deemed contract between it and Ampower, and challenged the warrant by judicial review. It had not attended the magistrates’ court hearing. The central issues were whether there was an arguable unlawful basis for the warrant and whether interim relief should be granted.

1. The application for permission to apply for judicial review was refused, and the application was dismissed. The proposed interim injunction consequently failed.
2. The email relied upon by the claimant did not reasonably establish a deemed contract between the claimant and Ampower. The reference to “you” was directed to the hotel manager, and the surrounding correspondence showed that both sides understood that a new contract would have to be signed by the claimant. Ampower’s position remained that any novation required acceptance of the pre-existing arrears.
3. The warrant was not arguably unlawful or otherwise shown to be amenable to judicial review. Ampower’s case was that the conditions in section 2(1) of the Electricity Act 1954 had been satisfied and that the magistrates’ discretion to issue the warrant had arisen. The court accepted that the magistrates were entitled to exercise that discretion.
4. The claimant had chosen not to attend the warrant application. If it wished the magistrates to consider the corporate structure, the alleged change in management, the payments made, or the alleged absence of fraud notice, those matters should have been advanced before the magistrates. Having failed to do so, it could not use judicial review to complain that the discretion had been exercised on the material before the court.
5. Although the circumstances gave rise to some suspicion concerning the transfer of management and unpaid electricity charges, the evidence did not show that the magistrates had based their decision on a finding of fraud. The stated basis was that the contract remained with Good Hotel Management Ltd and that its arrears justified disconnection.

The judgment describes a prior warrant application rather than an appeal.

• Birmingham Magistrates’ Court: warrant issued on 21 May 2019 for entry to the premises and disconnection of the electricity supply.
• High Court (Administrative Court): permission for judicial review refused and the claimant’s application dismissed.