Mustafa v The London Borough of Bromley & Anor

A magistrates’ court has an inherent power to set aside a liability order. The power is exceptional and should be exercised cautiously. It may be exercised where there is a genuine and arguable dispute about liability, the application is made promptly, and the order resulted from a substantial procedural error, defect or mishap.

“Mishap” is an omnibus expression. It is not to be subjected to an unduly literal or textual construction. The court must assess the unusual and unexpected combination of circumstances and whether justice requires the order to be set aside. A failure to notify the court is relevant, but does not necessarily prevent relief where the absence resulted from compelling and unexpected circumstances.

The London Borough of Bromley obtained council tax liability orders against the appellant in respect of premises which he owned. He maintained that the tenant, rather than he, was liable for the council tax.

The appellant did not attend the liability-order hearing because he was required to attend the final day of an unexpectedly extended Crown Court trial. Liability orders were made in his absence. The magistrates’ court later refused to set them aside, accepting that there was a genuine and arguable dispute and that the application had been prompt, but finding no procedural mishap because the appellant had not notified the court or council of his non-attendance.

The appeal by case stated concerned the meaning and application of the procedural-mishap requirement.

1. Appeal allowed. The magistrates’ refusal to set aside the liability orders was reversed, the liability orders were set aside, and the council’s application was remitted for redetermination on notice to both parties.
2. The magistrates’ court possesses an inherent power to set aside a liability order made by it. The power is exceptional and must be exercised cautiously.
3. The conditions identified in R (on the application of Brighton and Hove City Council) v Brighton and Hove Justices and Michael Hamdan [2004] EWHC 1800 (Admin) were applicable: there must be a genuine and arguable dispute about liability; the application must be made promptly; and the order must have resulted from a substantial procedural error, defect or mishap.
4. The magistrates had treated “mishap” as if it required a narrow textual construction. The term was used as an omnibus expression extending the categories of substantial procedural error or defect to the varied circumstances that may arise in legal proceedings.
5. The relevant question was not simply whether the appellant had failed to attend, but whether the circumstances surrounding his non-attendance amounted to a procedural mishap. The authorities recognised a spectrum, from a traffic accident preventing attendance to a person who knowingly remained abroad and did nothing to inform the court. The appellant’s unexpectedly extended Crown Court trial, and his compelling reason for being unable to attend, placed the case nearer the middle of that spectrum and sufficiently constituted a mishap in the circumstances.
6. Although the appellant’s failure to notify the magistrates’ court and council was relevant, it did not defeat the application. Once the genuine dispute and prompt application were established, justice required the orders to be set aside on the particular facts.

• High Court (Administrative Court): [2021] EWHC 404 (Admin) allowed the appeal by case stated, reversed the magistrates’ refusal, set aside the liability orders, and remitted the council’s application for redetermination.
• Bromley Magistrates’ Court: refused the appellant’s application to set aside liability orders made on 29 March 2019.