Application to set aside liability order is a 'Complaint'

Author: Simon Hill
In: Bulletin Published: Sunday 11 February 2018

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R. (on the application of Khan) v Feltham Magistrates' Court  [2017] EWHC 3042 (Admin)

In local taxation law, there has been considerable uncertainty as to whether an application to set aside a liability order in the Magistrates Court is a 'complaint' or not. The wording of section 64 of the Magistrates Court Act 1980 empowers the Magistrates to make costs order but only certain specific circumstances, and only on the outcome of a 'complaint.'. 

This nature of an application to set aside a liability order came up for determination in R. (on the application of Khan) v Feltham Magistrates' Court  [2017] EWHC 3042 (Admin). Handing down his decision on 8 November 2017, Cockerill J found that an application to a magistrates' court to set aside a liability order in relation to council tax amounted to a 'complaint', triggering the magistrates' discretion to award costs under the Magistrates' Courts Act 1980 section 64. In that case, Feltham Magistrates Court had dismissed a taxpayer's application to set aside a liability order, and importantly, had gone on to award costs against him and in favour of the billing authority under section 64 of the Magistrates Court Act 1980. 

After accepting the billing authority's submissions, Cockerill J said, at paragraphs 35 to 38:

 '...I am satisfied that the Magistrates had jurisdiction to award costs. I consider that they had jurisdiction and this could be either because, as they found, the application was a complaint itself or because the application to set aside was effectively part of the complaint which led to the original liability orders, or both. In this connection I do not see why the set aside application could not be counted as a complaint on both heads. I accept the submission that there is no necessary disjunction.

The word "complaint" is not defined. In looking at this point I have to construe it against its background and the statutory intention so far as that can be inferred. I note that if the Magistrates did not have jurisdiction to make a costs order in such a case there would potentially be a lacuna which it would be surprising if it were to have been intended. Looking at the matters which have been put before me it is correct the word "complaint" is susceptible of a broad construction. So far as this context is concerned, as I read it, s. 64 is the broad costs discretion applicable in civil proceedings under Part 2 of the Act which covers Civil proceedings in Magistrates' Courts. As such an application to set aside within that Part might naturally be regarded as a complaint in itself for the purposes of that section, it being the case that there is no particular formality required for a commencement of a complaint.

Equally, the application could be regarded as being part of the original complaint. If I had to choose between the two routes on which the jurisdiction might be said to arise, which, as I said I do not think I do, I would in fact favour the latter approach, i.e. that it is a jurisdiction which arises in relation to the liability order and extends to proceedings ancillary to, and in relation to, that order. That is consistent, for the reasons which Mr Paget put before me. It is also consistent with the earlier use of the term "complaint" in ss.51 and 52 of the Act and also to the reference to "complaint" in the Regulations at Regulation 134(2).

...I am satisfied that if a set aside application is viewed as part of the original complaint, the costs jurisdiction where a set aside is dismissed, is that under s.64.1(a), i.e. the making of a costs order in favour of the original complainant when the order is upheld and therefore the grant of the liability order is maintained.'

This decision was in respect an application to set aside a liability founded upon unpaid council tax, however it is very likely to apply by analogy to an application to set aside a liability order founded upon unpaid Business Rates. 

One caveat. It is regrettable that Cockerill J was not, it appears, referred to decision of Davies J and William Davis J in the Divisional Court in Corby Borough Council v Da Silva [2016] EWHC 2503 (Admin). That matter was ‘…an appeal by way of Case Stated from the decision of the Corby Magistrates' Court made on 1 August 2014 when it determine (sic): (i) To set aside liability orders made in respect of council tax against the respondent for the property …(ii) To order the appellant to pay the costs of that application.’ The local authority was the appellant. Da Silva the respondent.

At paragraph 44, the Divisional Court in Corby said:

'As to question 4: did we lawfully award costs against Corby Borough Council? In the Case Stated the following is written:

“27. We were asked to consider costs incurred by Mr Da Silva and to award compensation. Mr Findlay explained that the costs were for his preparation of the case and attending court on two separate occasions. Our legal adviser advised us that there was no power to award compensation but we could award costs. We were aware that the preparation included the drafting of the application to set aside and the skeleton argument. We therefore were of the opinion that £1,000 would be a just and reasonable order for the work taken and exercised the discretion and ordered this amount of costs be payable by the Corby Borough Council to Mr Da Silva under the provisions of section 64 of the Magistrates' Court Act 1980 …

29. We have subsequently been advised that section 64 gives the court power to award costs upon the making of an order or dismissal of a complaint that the application set aside probably does not constitute a complaint.

30. Our intention was only to set aside the making of the liability orders and we did not dismiss the council's applications for them.

31. We accept now that we probably had no power to award costs under section 64 of the Magistrates' Court Act 1980 and may have no other statutory authority to make that order.

32. At the time of our decision we were acting in good faith and upon the advice that had been given to us by our legal adviser.”

45 Given the acceptance by the magistrate that they did not have power to award costs question 4 has been answered and the issue does not require further determination by this court.'

The implication from the Divisional Court at paragraph 45 is that it thought the Magistrates Court was right to now accept that it did not have power to award costs under section 64 of the Magistrates Court Act 1980.

One view might have been that the absence of any reference to Corby in Khan, leaves Khan at risk of being argued to be per incuriam. However, any strength this argument might have had has faded to vanishing point as a result of the recent decision in Anami Holdings Ltd v Sandwell MBC [2018] EWHC 1913 (Admin) ('Anami'). In Anami, McCombe LJ and William Davis J (the same William Davis J from Corby) heard argument about Khan and decided to follow the decision in Khan as to the recoverability of costs. McCombe LJ in Anami said, at paragraph 30 '...I find Cockerill J's reasoning persuasive and I would follow it in this case.'

Witness Summons in Application to Set Aside a Liability Order

The determination that an application to set aside a liability order is a 'complaint' (or part of wider proceedings which are themselves a 'complaint') for section 64 of the Magistrates Court 1980 has wider implications, since there are other sections in the Magistrates Court Act 1980 which grant the Magistrates Court powers when hearing a 'complaint'. The correct characterisation of proceedings before the Magistrates Court as a 'complaint', or not, therefore has wider importance. For instance, section 97 of the Magistrates Court Act 1980 is entitled 'Summons to witness and warrant for his arrest', and subsection 1 reads:

'(1) Where a justice of the peace is satisfied that—

(a) any person in England or Wales is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, at the summary trial of an information or hearing of a complaint by a magistrates' court, and

(b) it is in the interests of justice to issue a summons under this subsection to secure the attendance of that person to give evidence or produce the document or thing, 

the justice shall issue a summons directed to that person requiring him to attend before the court at the time and place appointed in the summons to give evidence or to produce the document or thing.'

Should there have been doubt as to whether the Magistrates Court had power to witness summons a person to give evidence or produce a document at the hearing of an application to set aside a liability order, the decision of Khan has made it clearer that the Magistrates Court does indeed have such power.  

SIMON HILL © 2018

BARRISTER

33 BEDFORD ROW 

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.