John Morley, R (on the application of) v Surrey Heath Borough Council & Anor

A local authority may recover only costs reasonably incurred at the particular stage of council tax enforcement. An averaging method may be lawful, but it cannot include costs arising only when a liability order is later obtained if the sum is demanded when the summons is issued. Judicial review will ordinarily be refused where a conveniently and effectively available remedy before the magistrates, followed by a case stated procedure, was not used. Relief may also be refused where it is highly likely that the claimant would have suffered the same outcome without the unlawful conduct, or where the claim has become academic.

The claimant challenged Surrey Heath Borough Council’s council tax summons, which demanded £80.50 in collection costs, and the subsequent liability order made by Guildford Magistrates’ Court. The Council’s costs schedule calculated an average per summons using costs incurred both before summonses were issued and in cases where officers attended court to obtain liability orders.

The claimant argued that costs incurred only at the liability-order stage could not lawfully be included in the sum demanded with the summons. The Council relied on an averaging approach and argued that alternative remedies, the statutory no-difference test and academicity justified refusal of relief. The central issues were whether the summons was lawful and, if not, whether the summons or liability order should be quashed.

1. Legality of the summons. Under Local Government Finance Act 1992 Schedule 4 paragraph 3 and regulation 34 of the Council Tax (Administration and Enforcement) Regulations 1992, the authority could recover only costs reasonably incurred in connection with the relevant enforcement stage. Regulation 34(5) concerned costs incurred up to payment before the liability-order hearing. Regulation 34(7) and (8) concerned costs incurred in obtaining or applying for a liability order.
2. The averaging approach described in Nicolson was capable of producing a justifiable figure. It could not, however, override regulation 34. An average demanded with a summons was unlawful if it included additional costs incurred only in cases where a liability order had to be applied for at a magistrates’ court hearing. The Council’s summons was therefore unlawful.
3. Relief. The claimant had failed to argue the point before the magistrates or seek a case stated under section 111 of the Magistrates’ Court Act 1980. That was a conveniently and effectively available alternative remedy. Judicial review was therefore refused, subject to exceptional circumstances, which were absent. The procedural-unfairness authorities did not assist because the complaint concerned the legality of the summons, not the fairness of the magistrates’ procedure.
4. Further, under section 31(2A) of the Senior Courts Act 1981, it was highly likely that the outcome would have been the same. The claimant had not paid before the hearing, and the Council’s costs were not disputed as reasonable where a liability order was actually required. The claim was also academic.
5. Permission was granted against the Second Defendant, but the summons and liability order were not quashed. The claim was to be dismissed. The judge’s preliminary view was that there should be no order as to costs.

Not an appeal. The judgment records an earlier permission decision in the Administrative Court: permission was refused on the papers on 14 October 2024, then granted on renewal on 5 February 2025. The present court determined the judicial review claim and refused to quash the summons or liability order.