LIVERPOOL CITY COUNCIL v PLEROMA DISTRIBUTION LTD. [2002] EWHC 2467 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
[2002] EWHC 2467 (Admin)Case No Case No: CO/3153/2002Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
LIVERPOOL CITY COUNCILAppellantPLEROMA DISTRIBUTION LTD.Respondent
Before
Mr Justice Maurice KayNorman A Wright (instructed by Legal Services, Liverpool City Council) for the AppellantJames Findlay (instructed by Linder Myers) for the RespondentDate 21 November 2002
[1]Mr Justice Maurice Kay: This is an appeal by Case Stated in respect of a decision of a Magistrates Court sitting in Liverpool on 15 March 2002. The Appellant (LCC) preferred a complaint on 28 November 2001 alleging that the Respondent (Pleroma) was liable to pay non-domestic rates in the sums of £55,461.61 on account number 9001287522 and £131,650.00 on account number 9001356828 in accordance with Regulation 12 of the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 (the Regulations). The sum alleged to be due on account number 9001287522 related to a period of years up until 31 March 2001, whereas account number 9001356828 was concerned with the demand for the year ending 31 March 2001. I shall refer to them respectively as "the old demand" and "the current demand".[2]As a result of LCC's complaint, a hearing was to take place on 21 December 2001. The form of the listing was that LCC's applications for liability orders against Pleroma and a large number of other respondents were listed to be heard. Hundreds of such cases were so listed. On 17 December Goldbeck King, a firm of rating consultants, wrote to the Clerk to the Justices and to the City Treasurer requesting an adjournment of all proceedings against Pleroma "on the basis that the demands made are unlawful with respect to the years to 31 March 2001 and that the amounts have been paid with respect to the current year as a result of overpayment in prior years". It is not at all uncommon for credibly disputed cases to be adjourned to dates when an appropriate amount of time is available. The consultants' letter contended that the case was a complex one which would last at least three hours and which would be suitable for a District Judge rather than a bench of lay justices.[3]Although it has not been easy to reconstruct what transpired at Court on 21 December, the Case Stated accepts the account put forward on behalf of LCC. It is as follows:
"On arriving at court the [LCC] representative, Mrs Robinson, showed to the court clerk…..a letter they had received from [Pleroma's] representative requesting an adjournment of all proceedings. The court clerk read the letter and handed it back to Mrs Robinson. This letter, at this stage, had not been brought into court. There then followed a conversation between Mrs Robinson and the court clerk as to the request by [Pleroma]. Mrs Robinson agreed to adjourn [ the application in relation to the old demand], where the contention being made was that these were unlawful. With regard to the [current demand], she indicated that she was not prepared to agree an adjournment because the fact that there had been overpayments in earlier years is not a defence to a liability order application…….. Subsequently the justices came into court and Mrs Robinson addressed them….This involved her asking for liability orders in every case on the …..list…..unless it was one that was indicated to be withdrawn or adjourned to a future date….When the Justices came to [Pleroma's] accounts, Mrs. Robinson stated that [the old demand] was to be adjourned sine die…..when asked by the court clerk about [the current demand], Mrs Robinson replied that it was only the first one that was to be adjourned….. At this stage the Justices pronounced that the liability orders sought were granted."
It seems that some time later the letter of 17 December from Goldbeck King to the Clerk to the Justices was brought into court and the court clerk showed it to Mrs. Robinson but the Justices "categorically state that at no stage did we have sight of either letter [i.e. the one to the Clerk to the Justices or the copy to the City Treasurer]……or were ever made aware of the contents of the letters." In due course a liability order was issued in relation to the old demand.[4]When Goldbeck King discovered what had occurred, they sought to have the application in relation to the old demand relisted and on 4 January 2002 the Principal Legal Advisor to the Justices wrote to Goldbeck King informing them of a hearing date and adding that "the Court is using its common law powers to relist the matter as it appears that a mistake was made in that the Court was not informed of the contents of your letter of 17 December which requested an adjournment of both matters listed that day."[5]The same Justices presided over a hearing on 18 January and again on 15 March when they made the decision which is described in the Case Stated in the following terms:
"We…..were of the opinion that the liability order had been issued without us having the opportunity to fully consider [Pleroma's] application to adjourn. The fact remains we never had sight of or knew of the contents of the….letter….requesting an adjournment of all the accounts. The….application to adjourn was never put before us and we were therefore unable to make a proper and informed decision in the circumstances. As a result of this we feel that the court on 21 December…..made an inequitable decision…..we feel it would be unjust for the liability order to stand. In the circumstances we used our inherent jurisdiction to set aside the liability order….. Whilst we could find no statutory authority to allow us to reconsider the original court hearing we were satisfied that we had common law jurisdiction to do so. We were satisfied that if we did not do this then it would lead to an inequitable position."
In the present appeal LCC contends that the Justices thereby acted without jurisdiction. In a nutshell, its case is that the Justices had no power, either statutory or at common law, to revisit a decision in respect of which they were functus officio and that Pleroma's remedy (if any) lies elsewhere.[6]On behalf of LCC, Mr. Wright's primary submission is that the jurisdiction of the Magistrates Court is derived solely from statute and that the decision of 15 March to set aside the liability order of 21 December was made without jurisdiction because it was not provided for by the Magistrates Courts Act 1980, the Local Government and Finance Act 1988, the Regulations or otherwise. It is common ground that none of this statutory material provides for the setting aside of a liability order. Mr. Wright submits that if there were a power to set aside it would be a matter of express provision and that it is evident from the legislation as a whole that there is none and none was intended. Thus, Part V11 of the Magistrates Court Act, headed "Miscellaneous and supplementary", includes section 142 which in terms confers upon a Magistrates Court the power to reopen cases to rectify mistakes but it is obvious from its language that it is confined to criminal cases. Where it was intended to enable the Court to revisit a civil order, express provision was made: see sections 60 and 95 in relation to periodical payments and maintenance orders. Mr. Wright concedes that Magistrates Courts have an inherent power to regulate their procedure in the interests of justice and to ensure a fair trial (see, for example, Simms v. Moore [1970] 2 QB 327; Mayes v. Mayes [1971] 1 WLR 679) but, he submits, this does not extend to the setting aside of an order made pursuant to a statutory power. Moreover, the absence of jurisdiction to set aside does not mean that the victim of a flawed decision is without a remedy: he can, for example, appeal by case stated or seek judicial review. Indeed, before the decision to set aside in the present case, Pleroma's solicitors wrote to LCC saying that, if the liability order were not set aside, they would issue judicial review proceedings.[7]Mr. Findlay, on behalf of Pleroma, accepts that in general a Magistrates Court, being a creature of statute, is functus officio once it has made an order, unless statute provides a power to reconsider. However, he submits that there are exceptional circumstances established on the authorities. One example is when the proceedings in question are unfinished, as in S. v. Recorder of Manchester [1971] AC 481. I say at once that, in any judgment, that authority, which was concerned with the power to accept a change of plea from guilty to not guilty, has no relevance to the circumstances of the present case.[8]More difficult considerations arise in relation to the second line of authority upon which Mr. Findlay seeks to rely. In R v. Marsham, ex parte Pethick Lawrence [1912] 2 KB 362 the applicant was convicted following a trial before a metropolitan magistrate on a very busy day at Bow Street. Later in the same day it was pointed out to the magistrate that one of two police constables who had given evidence had not been sworn. The magistrate then reheard the case, all the evidence being then given on oath. The applicant was again convicted. The High Court upheld the second conviction. Lord Alverstone LJ said (at p.364):
"…..there was before the same magistrate upon the same day a mistrial which would have compelled the Court to quash the conviction…..and, that being so, it cannot be properly said that the applicant was in peril so as to bar the further proceedings on the same day."
A little later the Lord Chief Justice referred to the magistrate having treated the first hearing as "a nullity" before adding (at p.365):
"In my judgment the magistrate, finding out that upon the first hearing he had had before him evidence which was not admissible and had therefore not heard and determined the case according to law, was entitled within the exercise of his jurisdiction to have the case heard and tried before him on proper evidence."
Pickford J agreed, as did Avory J who added (at p.366):
"In the present case it is admitted that the first judgment, if in fact there ever was one, was a judgment that must have been reversed if proceedings had been taken for that purpose. It would have been quashed on certiorari….."
[9]In Bannister v. Clarke [1920] 3 KB 598 magistrates who had erroneously committed Bannister for trial in relation to five informations which were susceptible only to summary trial (together with one information which was triable upon indictment but in respect of which Bannister was later acquitted at Quarter Sessions), returned to the five informations some months later, tried him summarily and convicted him. On an appeal by case stated it was held that the magistrate had not exceeded their jurisdiction. The Earl of Reading LJ said (at p 608):
"When the justices purported to commit the appellant on these informations, they were doing something which in law they had no power to do. Their act was null and void; the position was the same as if the appellant had never been committed on those informations. The justices had not adjudicated at all upon them and in no sense can the justices be said to have exhausted their jurisdiction."
R v. Marsham was expressly relied upon as supporting that proposition. This line of authority continued through R v. Norfolk Justices, ex parte DPP [1950] 2 KB 558 (justices have jurisdiction to sentence a defendant, notwithstanding that they previously purported to commit him for sentence in respect of an offence which carried no such power) and R v. West [1964] 1 QB 15 (justices have the power to commit for trial, notwithstanding that they have previously purported to acquit the defendant in a summary trial for the same offence which could not be tried summarily). In West , Streatfeild J reviewed the previous authorities and extracted this proposition (at pp28-29):
"….a court having acted without jurisdiction was then perfectly competent to exercise the same jurisdiction, but to exercise it properly."
[10]What is the principle to be derived from the authorities? In my judgment it is that when a Magistrates Court purports to do something which is unlawful and in excess of its jurisdiction it is competent to correct its error. To convict someone on unsworn and unaffirmed evidence or to commit a person for trial for an offence in respect of which there is no power to commit or try a person summarily for an offence only triable on indictment clearly falls into that category. The present case, it seems to me, is not so clear. The Justices had the competence either to grant or to refuse an adjournment. It was a matter of discretion, to be exercised judicially. However, the reality is that on 21 December they did not purport to exercise that discretion one way or the other in respect of the current demand because they did not know that Pleroma was seeking an adjournment of it. In such a situation, does it follow that they exhausted their jurisdiction upon the pronouncement of the liability order and were powerless to reopen the matter once the true position was made known to them? In my judgment it does not. Let us assume that a liability order had been made in the absence of a ratepayer and his representative because they had been involved in a traffic accident on the way to court, or that an extremely cogent written request for an adjournment had been sent to the court but had been misfiled in the court office, and in such a case the facts were only brought to the attention of the court later in the day or on the following day. It would be unfortunate and contrary to common sense and fairness if the magistrates were constrained by law to stand on their earlier decision, made in ignorance of the facts, and to have to direct the disadvantaged ratepayer to the Administrative Court and an application for judicial review. Moreover, there is no logical reason why what common sense and fairness justice require within an hour or a day should be subject to a temporal limit.[11]The Justices in the present case only became aware of the written request for an adjournment at a later date. They were understandably concerned that, having been unaware of the letter of 17 December, they had not considered an application which had been made and had not exercised a discretion to grant or to refuse an adjournment which had been requested in a customary and economical way. In my judgment it does not need a statutory provision to enable them to put right such a perceived omission. Although they had not purported to do something inherently unlawful of the type illustrated by the authorities to which I have referred, they were entitled to reopen the matter so as to address a discretion which, at the time, they had not realised was the subject of a specific request. In my judgment they did not exceed their jurisdiction or act unlawfully when they proceeded to set aside the liability order and the question posed by the case stated must be answered in favour of Pleroma.[12]At the hearing before me both parties submitted schedules with a view to a summary assessment of costs. My provisional view is that I should make an order for costs in favour of Pleroma, assessed at £5994.85 If neither party wishes to make other applications or submissions, I shall include that in the order and there will be no need for any attendance on the occasion when the judgment is handed down. MR JUSTICE MAURICE KAY: In this matter, there will be judgment in the form of the document now handed down. There has been contact with the parties following release of the draft judgment. As a result of that, the order will say that the appeal is dismissed, that the appellant will pay the respondent's costs, summarily assessed at £5,994.85, and the parties indicated that neither of them has any other applications.

Cited in 9 later judgments