INTRODUCTION
In England and Wales, is a local authority/billing authority entitled to claim interest under the Judgments Act 1838 Act (the ‘1838 Act’), on sums outstanding under a business rates liability order, or under a council tax liability order, made in its favour?
This article will consider this question, in light of:
(1) sections 17 and 18 of the 1838 Act;
(2) The Queen v The County Court Judge of Essex and Clarke (1887) 18 QBD 704 (‘Clarke’), Court of Appeal (Lord Esher MR, Fry LJ and Lopes LJ) on 27.4.1887;
(3) Burrows v Burrows [1981] Lexis Citation 1524; Times, March 10, 1981 ('Burrows'), Court of Appeal (Ormrod LJ; Eveleigh LJ; Watkins LJ) on 1.1.81; and
(4) Powys CC v Hurst [2018] EWHC 1684 (Admin) (‘Hurst’), Court of Appeal (Hickenbottom LJ; Singh LJ) on 4.7.18.
SUMMARY
Seemingly, the law is that: interest does not accumulate under the 1838 Act on unpaid business rates liability orders ('BRLOs') or unpaid council tax liability orders ('CTLOs').
The words ‘judgment debts’ seem, on first blush, to be very wide, however, Clarke expressed the view that ‘judgment debts’:
(1) 'means such judgments as were then known, judgments which were entered up; I doubt whether it applied to any but the superior Courts.' (Lord Esher MR in Clarke); or, if different,
(2) encompasses (as per Fry LJ in Clarke, who said he was not deciding the point):
(a) judgments of ‘superior courts’; and
(b) judgments from courts which existed in 1838;
Applying these two (Lord Esher MR and Fry LJ's definitions) to the present day Magistrates Court, the present day Magistrates Court:
(a) is not a superior court; it is an inferior court; and (if required)
(b) did not exist, it seems in 1838, at least not in sufficiently similar form (for these purposes).
However, as there is no authority which expressly answers the question in relation the Magistrates Court, it cannot be said to be completely settled.
THE STATUTORY PROVISIONS
The 1838 Act - Sections 17 and 18
Only 2 sections of the 1838 Act remain in force[1], namely:
(a) section 17, entitled ‘Judgment debts to carry interest'; and
(b) section 18, entitled ‘Decrees and orders of courts of equity, &c. to have effect of judgments’.
Over time, they have been amended[2], but they currently read:
Section 17 of the 1838 Act reads:
'(1) Every judgment debt shall carry interest at the rate of 8 pounds per centum per annum from such time as shall be prescribed by rules of court until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment.
(2) Rules of court may provide for the court to disallow all or part of any interest otherwise payable under subsection (1).' [bold added]
Section 18 reads:
'All decrees and orders of courts of equity, and all rules of courts of common law whereby any sum of money, or any costs, charges, or expences, shall be payable to any person, shall have the effect of judgments in the superior courts of common law, and the persons to whom any such monies, or costs, charges, or expences, shall be payable, shall be deemed judgment creditors within the meaning of this Act; and all powers hereby given to the judges of the superior courts of common law with respect to matters depending in the same courts shall and may be exercised by courts of equity with respect to matters therein depending and all remedies hereby given to judgment creditors are in like manner given to persons to whom any monies, or costs, charges, or expences, are by such orders or rules respectively directed to be paid.' [bold added]
A few points
A few points:
(1) given these are the only 2 sections from the 1838 Act, still in force, and neither contains a definition of 'judgment' or 'judgment debts’, the observation can be made that the 1838 Act does not provide a statutory definition for ''judgment' or 'judgment debts’. Indeed, though of marginal relevance, it is noted that the 1838 Act never contained a definition;
(2) with only 2 sections of the 1838 Act still in force, there are no other statutory provision in the 1838 Act, to look to, to see the context for s.17 and, in particular, for the phrase 'judgment debts’ - to, perhaps, extract some guidance or direction;
(3) some background context to 1838 Act is given by Ormrod LJ in Burrows. At paragraph 7, Ormrod LJ said:
'Before the Judgments Act of 1838 interest was not recoverable at common law in general on judgment debts, although there were various exceptions, apparently, to that rule. And so in the 1838 Act, which was an Act dealing with all kinds of methods of enforcing judgments and generally sweeping away a great deal of ancient law, it was enacted by section 17 that:
"Every judgment debt shall carry interest at the rate of four pounds per centum per annum from the time of entering up the judgment or from the time of the commencement of this Act in cases of judgments then entered up and not carrying interest until the same shall be satisfied and such interest may be levied under a writ of execution on such judgment".
...as I read the section it is really perfectly simple, it is a general provision that all judgment debts to which the Act applies shall carry interest automatically, and that people who are judgment creditors are entitled, if they think fit, to recover the interest under a writ of execution. I do not think it means anything more than that.'
[readers will have noticed that the wording to s.17 has changed since Burrows was decided in 1981]
The context therefore does not, apparently, reveal any complicating aspect to the section.
(4) looking at s.18 for a moment, what a Magistrates Court issues, in the author's opinion, are not: (a) '...decrees and orders of courts of equity,'; nor (b) 'rules of courts of common law'. The Magistrates Court is a creature of statute. It is not a court of equity. BRLOs/CTLOs are not 'rules', so as to come within the phrase 'rules of courts of common law'. The treating provision in s.18 of the 1838 therefore does not apply to the issue under consideration[3].
Turning to the statutory provisions which govern the imposition of: (a) National Non-Domestic Rates ('Business Rates') and its collection; and, separately, (b) Council Tax, and its collection:
(a) Business Rates - 1988 Act and 1989 Regs
Business Rates liability is imposed by Local Government Finance Act 1988 (‘1988 Act’). The Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989/1058 ('1989 Regs') make provision for the collection and enforcement of Business Rates under the 1988 Act, and related matters.
There are no reference in 1989 Regs to:
(1) the 1838 Act, in particular, characterising a BRLO as a 'judgment debt' for the purposes of 1838 Act[4]; nor
(2) interest accumulating on amounts due under a BRLO but unpaid;
(b) Council Tax
Council Tax liability is imposed by Local Government Finance Act 1992 (‘1992 Act’). The Council Tax (Administration & Enforcement) Regs 1992 (SI 1992/613) (‘1992 Regs’) apply to enforcement.
Similarly, there are no reference in 1992 Regs to:
(1) the 1838 Act, in particular, characterising a CTLO as a 'judgment debt' for the purposes of 1838 Act[5]; nor
(2) interest accumulating on amounts due under a CTLO but unpaid;
AUTHORITIES/LEADING TEXTBOOKS
Seemingly, there is:
(a) no authority on point; and, tellingly
(b) no reference to the 1838 Act, or interest accumulating on unpaid BRLOs or CTLOs, in the leading textbooks on this area[6].
The absence of any reference to 1838 Act in the leading textbooks in this area, is a strong indication of the position. But, it is still necessary to widen the scope of the analysis.
Clarke
A key case to consider is Clarke. In that case, in essence, the Court of Appeal held that a County Court judgment debt does not carry interest under 1838 Act (this remains the law, as confirmed by in Burrows[7]).
A county court judgment debt is, of course, not the same thing as a BRLO or CTLO - both the entity (County Court vs Magistrates Court) that makes it, and the nature of what it hands down (judgment/order v BRLO/CTLO), are different - but the Court of Appeal judgments in Clarke are still illuminating.
Inferior Courts / Superior Courts - and the existence of a particular court in 1838
In Clarke, Lord Esher MR opined as to the meaning of 'judgment' in section 17 of the 1838 Act. He said, at 705:
‘I entertain a strong view that the word "judgment" in s.17 means such judgments as were then known, judgments which were entered up; I doubt whether it applied to any but the superior Courts.’
Fry LJ, who gave the next judgment in Clarke, said ‘I am of the same opinion’ before stating, at 707:
‘A clear distinction is drawn in [1838 Act], between judgments of the superior Courts of Common Law and of Equity, and of the inferior Courts: and though s.17 is very general in its language I am inclined to think (though it is unnecessary here to decide it) that it applies to the judgments of the superior Courts of Common Law, and of such inferior Courts of Common Law as then existed. The question then arises whether upon the reconstruction of the county courts by the Act of 1846, the orders of those Courts were made judgments within the meaning of the earlier statute. I do not think they were.'
The third member of the Court of Appeal in Clarke, Lopes LJ, so far as is material for present purposes, simply concurred.
In Clarke then,
(1) on the narrow point, a County Court judgment was held not to come within the words 'judgment' in s.17 (n.b. subsequently, interest became claimable under a different enactment[8]);
(2) on the meaning of 'judgment' in s.17 more generally, the Court of Appeal offered less conclusive views[9]:
(a) Lord Esher MR (with Fry LJ being of the same opinion, and Lopes LJ concurring) expressed his 'strong view' that 'judgment' in s.17 only encompassed '...such judgments as were then known, judgments which were entered up; I doubt whether it applied to any but the superior Courts.'
(b) Fry LJ (with Lopes LJ concurring) said, after saying he had the same opinion as Lord Esher MR, that he was 'inclined to think' (without deciding the point), that ‘Judgment’ in section 17 only encompassed '...judgments of the superior Courts of Common Law, and of such inferior Courts of Common Law as then existed'.
Assuming Clarke did, and does, express the law in this area, 'Judgment’ in section 17 of the 1838 Act, only encompasses:
(a) judgments of superior courts; and
(b) judgments of courts which, in 1838, existed.
In relation to whether the present day county court judgments, came within the meaning of 'judgment' in s.17 of the 1838 Act, in:
(a) Clarke, decided in 1887, Lord Esher MR said, at 704:
'It must be remembered that when [1838 Act], was passed, there were no such county courts in existence as those created by [County Courts Act 1846]'
(b) Burrows, decided in 1981, Ormrod LJ, at paragraph 9, similarly said (speaking of 1838):
'At that time the county courts as we know them did not exist. They came into existence some years later by the County Courts Act 1846.'
The Magistrates Court
It is logical, in the author's opinion, to apply Lord Esher MR's reasoning from Clarke, across to all courts. A judgment promulgated by a court, will only come with the meaning of 'judgment' in 1838 Act, if it comes within Clarke's (up to) 2 categories (i.e. it only comes within the words 'judgment' if it is either: (a) a judgment of a superior court; or (b) a judgment of a court which, in 1838, existed).
Turning to the Magistrates Court specifically, in respect to Clarke's 2 categories:
(1) the Magistrates Court is an inferior court; it is not a superior court[10]; this much is fairly straightforward; and, if required
(2) whether the Magistrates Court existed in 1838 - this is a more difficult question.
In respect to the county court, the county court was held to have undergone reconstruction ('...the reconstruction of the county courts by the Act of 1846...' (Fry LJ, Clarke)), with the result that the then present day (as in 1887) county court (the 'post reconstructed county court') was not the same as the county court that existed in 1838 (for the purposes of Clarke's second category). So the post reconstructed county court had not existed in 1838, and so the post reconstructed county court's judgments were not within the meaning of 'judgment' in the 1838 Act.
Applying this same approach, to the present day Magistrates Court - has any post 1838 Act reconstruction or changes been made to the Magistrates Court, such that the present day Magistrates Court, is not the same as the 'Magistrates Court' that existed in 1838 (with the result that present day Magistrates Court orders (BRLOs/CTLOs do not come within the meaning of 'judgment' in the 1838 Act)?
As readers might imagine, there is room for debate as to the answer to this question. However, in the author's opinion, the present day Magistrates Court did not exist in 1838:
(1) the Metropolitan Police Act 1839, Metropolitan Police Courts Act 1839 and Metropolitan Police Courts Act 1840, The Stipendiary Magistrates Act 1858, came after the 1838 Act;
(2) the first Magistrates' Courts Act came in 1952 (superseded now by the Magistrates Court Act 1980).
So there has been a reconstruction, or sufficient changes, to the Magistrates Court, to say that the present day Magistrates Court, did not exist in 1838.
Rule of Construction
Another angle is to consider a particular rule of statutory construction. Lord Esher MR in Clarke said, at 707:
‘The ordinary rule of construction … applies in this case, that where the legislature has passed a new statute giving a new remedy, that remedy is the only one which can be pursued.’
Seemingly, where a new statute provides within its regime, its own new remedy/remedies, it is a rule of construction that Parliament's intention was that that remedy/those remedies, would be the only remedy/remedies available under that statute/regime. The intention was not that there would be an additional remedy, in an existing separate statute, available as well.
In Burrows, Ormrod LJ, at paragraph 9, observed, in relation to the county court
'That [County Courts Act 1846] and all the subsequent County Courts Acts - each one - contained a code of its own dealing with the enforcement of judgments. That code is now to be found in section 120 of the County Courts Act 1959 and the Rules made under it. That section, like all its predecessors, does not contain any reference to the recovery of interest.'
Reference can also be made to Lord Esher MR's observation in Clarke, as to the absence of any reference to 1838 Act in County Courts Act 1846[11].
Turning to the statutory provisions underlying this aspect of the Magistrates Court's jurisdiction, the (1) 1989 Regs; and (2) 1992 Regs contain their own set of remedies for non-payment of BRLOs/CTLOs[12]. But none make provision for interest. In particular, there is no date from which interest is to run. In other words, the rules of court, do not prescribe the time from which interest should run from. So there is no 'from such time as shall be prescribed by rules of court' to make s.17 of the 1838 work, in practice.
BRLOs/CTLOs
Another angle, is Lord Esher MR having 'limited' the meaning of 'judgment' in s.17, to 'judgments as were then known, judgments which were entered up'
As far as the author's researches have been able to determine, liability orders did not exist in 1838. Indeed, it does not seem that they formed part of the rating system introduced even in Rating and Valuation Act 1925. The upshot is that, in 1838, when the 1838 Act was enacted, liability orders were not then known as a type of 'judgment'. Lord Esher MR draws a distinction between: (1) the 'very peculiar orders' that the County Courts Act 1846 had empowered County Court judges to make - orders for the payment of money; and (2) judgment at common law. Lord Esher MR was of the strong view that such County Courts Act 1846 orders for the payment of money did not come within the meaning of s.17 'judgment'[13]. Logically, this should apply, by analogy with BRLOs/CTLOs, as being, similarly, orders for the payment of money.
Hurst
While at first blush, this case might seem useful, it is not very illuminating. It is discussed in a footnote[14].
Conclusion
Seemingly, the law is that: interest does not accumulate under the 1838 Act on unpaid BRLOs or unpaid CTLOs. It might be thought, on first look, that 'judgment' in s.17 of the 1838 Act, would have a wide reach, and include a BRLO or CTLO. However, Clarke, makes it clear that this is not the case. Only certain types of courts produce orders etc, which can be categorised as coming within the specific and particularly narrow meaning of 'judgment' in s.17 of the 1838 Act. Applying Clarke to Business Rates and Council Tax law, it seems clear that not accumulate under the 1838 Act on unpaid BRLOs or unpaid CTLOs.
For completeness, the author is unaware of any other statute under which interest might accumulate on an unpaid BRLO or unpaid CTLO.
SIMON HILL © 2025*
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, or the Copyright holder. No attempt has been made to provide an exhaustive review/account of the law in this area. *Copyright is owned by Barrister Search Limited.
[1] Originally, the Judgments Act 1838 had 123 sections
[2] Section 17 of the Judgments Act 1838 Act was last amended in 1999; section 18 of the Judgments Act 1838 Act was last amended 1896.
[3] The treating provision being that, by s.18 of the Judgments Act 1838 Act - such decrees, orders and rules (that make a sum of money, costs, charges or expenses payable by one person to another):
(a) shall have the effect of judgments in the superior courts of common law; and
(b) the persons in who's favour such decrees, orders or rules, are made, will be '...judgment creditors within the meaning of this Act.' By their very nature, judgment creditors are the holders of judgment debts.
So while s.18 of the Judgments Act 1838 Act does (or at least, did in the past), cause certain types of promgulations (decrees, orders and rules, from certain courts), to be treated as judgments from the superior courts of common law (i.e. judgment debts), it would seem that this cannot avail those holding the benefit of a Magistrates Court BRLO/CTLO (i.e. the Billing Authority).
[4] In Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations (SI 1989/1058), there is a deeming provision (not too different from a treating provision).
Reg 18 is entitled 'Insolvency' and provides:
'(1) Where a liability order has been made and the debtor against whom it was made is an individual, the amount due shall be deemed to be a debt for the purposes of section 267 of the Insolvency Act 1986 (grounds of creditor's petition).
(2) Where a liability order has been made and the debtor against whom it was made is a company, the amount due shall be deemed to be a debt for the purposes of section 122(1)(f) (winding up of companies by the court) or, as the case may be, 221(5)(b) (winding up of unregistered companies) of that Act.
(3) The amount due for the purposes of this regulation is an amount equal to any outstanding sum which is or forms part of the amount in respect of which the liability order was made.'
[5] In Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992/613), there is a deeming provision (not too different from a treating provision).
Reg.49 is entitled 'Insolvency' and provides:
'(1) Where a liability order has been made and the debtor against whom it was made is an individual, the amount due shall be deemed to be a debt for the purposes of section 267 of the Insolvency Act 1986 (grounds of creditor's petition)
(2) Where a liability order has been made and the debtor against whom it was made is a company, the amount due shall be deemed to be a debt for the purposes of section 122(1)(f) (winding up of companies by the court) or, as the case may be, section 221(5)(b) (winding up of unregistered companies) of that Act.
(3) For the purposes of this regulation the amount due is an amount equal to any outstanding sum which is or forms part of the amount in respect of which the liability order was made.'
In Tower Hamlets LBC v Naris [2019] EWHC 886 (Ch), Chief ICC Judge Briggs said, at paragraph 21:
'It is beyond doubt that Regulation 49(1) of the CTR deems liability orders to fulfil the requirement in section 267(1) of the Insolvency Act 1986 that “A creditor’s petition must be in respect of one or more debts owed by the debtor”. A statutory demand may therefore be served in respect of such a liability.'
[6] The leading textbooks on this area are:
(1) Ryde on Rating and Council Tax; and
(2) Encyclopaedia on Rating and Local Taxation.
However, there is no reference in of these, either to:
(1) the 1838 Act; or
(2) interest accumulating on unpaid Business Rates liability orders or unpaid council tax liability order, or on amounts due under either type of liability order.
In addition, there is no reference to interest accumulating on a council tax liability order in the textbook Council Tax Handbook by Alan Murdie.
For completeness, the only reference in the two leading textbook mentioned above, to interest being payable, is to The Non-Domestic Rating (Payment of Interest) Regulations 1990/1904. However, this is inapplicable to the issue presently under consideration, because those regulations impose, in essence, an obligation on the relevant Billing Authority/Secretary of State (rather than the ratepayer/taxpayer), to pay interest to the ratepayer/taxpayer, when that ratepayer/taxpayer is due a repayment as a result of an alteration in the relevant rating list.
More generally, in Butterworth’s Stone’s Justices’ Manual 2021, the key textbook on the Magistrates Court generally, there is no reference to:
(1) the 1838 Act; nor
(2) ‘judgment debt’ outside of the Attachment of Earnings Act 1971 (discussed in different footnote in this article, in relation to Powys CC v Hurst [2018] EWHC 1684 (Admin))
[7] It continues to be the law that that Judgments Act 1838 does not apply to county court judgments. In Burrows v Burrows [1981] Lexis Citation 1524; Times, March 10, 1981 ('Burrows'), the Court of Appeal declined an invitation to hold differently (via holding that The Queen v The County Court Judge of Essex and Clarke (1887) 18 QBD 704 had been decided per incurium). Ormrod LJ in Burrows, at paragraph 10, referred to the decision in Clarke (referred to as the 'Essex case') and said, at paragraphs 12 and 13:
'From that time onwards the whole practice of the county court has been based on this decision and on the assumption that interest is not recoverable on county court judgments.
It would be quite impossible, in my view, at this length of time, and bearing in mind the enormous number of people who have been affected by this judgment in the past, for this court, even if it thought that the judgment was wrong, to differ from it. Any decision of this kind, which is so far-reaching in its implications, and which has stood unchallenged for so long, can, it seems to me, only be altered by statute. I have a fairly shrewd idea that the House of Lords, even if they thought that the decision was hopelessly wrong, would feel it impossible to overrule it in the light of the long history, and of the fact that successive Parliaments have enacted successive County Court Acts on the assumption that it was right.'
Later, Ormrod LJ similarly said, at paragraph 14 'But it is too late, much too late, in my view, to attempt to challenge the Essex case [1887] 18 QBD 704. Only Parliament can deal with that if it thinks fit.'
This position was confirmed, though less convincingly, in Sewing Machines Rentals v Wilson [1976] 1 WLR 37. See also Preston v Preston [1982] 1 All ER 41, at 51.
Parliament, in 1984, made intervened. But what Parliament did, was enact a separate provision, section 74 of the County Courts Act 1984 (still in force; now in version 4), dealing with interest. What Parliament did not do, was amend s.17 of the Judgments Act 1838, to widen its scope, to include county court judgments.
[8] Parliament enacted section 74 of the County Courts Act 1984 (coupled with County Courts (Interest on Judgment Debts) Order 1991). Whether there was an entitled, earlier, in section 3 of the Law Reform (Miscellaneous Provisions) Act 1934 (as per K v K [1977] Fam 39, Orr LJ, at 57E), will be left to readers to consider. The important points is, Parliament’s intervention here, did not, and does not, undermine the ratio of Clarke.
[9] The view of the Court of Appeal in The Queen v The County Court Judge of Essex and Clarke (1887) 18 QBD 704 was not categoric/determinative:
(1) Lord Esher MR said he 'entertained the strong view' and expressed 'doubt' whether 'judgment' applied to any but the superior Courts;
(2) Fry LJ said he had the same opinion as Lord Esher MR. But he then said, he was (merely) 'inclined to think' (his view), expressly stipulating ('though it is unnecessary here to decide it') that he was not deciding the point;
(3) Lopes LJ merely concurred.
On the other hand, the Court of Appeal in Clarke did apply this understand of the law, when holding that interest did not accumulate, under s.17 of the Judgments Act 1838, on an unpaid county court judgment.
[10] In the White Book 2022, Vol 2, at paragraph 3C-29, under the heading 'Supervisory Jurisdiction (Administrative Court)', the commentary provides:
'Courts are designated either as “superior courts” or “inferior courts”. “Superior courts” are defined in s.19 Contempt of Court Act 1981 to include the Supreme Court, the Court of Appeal, the High Court, the Crown Court, the Court Martial Appeal Court, the Employment Appeal Tribunal and “any other court exercising in relation to its proceedings powers equivalent to those of the Crown Court”. This will include the Court of Protection (ss.45 and 47 Mental Capacity Act 2005), the Family Court (see s.31E(1)(a) of the Matrimonial and Family Proceedings Act 1984 and para.2 of Pt 2 of Sch.10 to the Crime and Courts Act 2013), and the Upper Tribunal (s.3(5) of the Tribunals, Courts and Enforcement Act 2007). It likely also includes the Court Martial (per para.180(2)(d) of Sch.16 to the Armed Forces Act 2006). The County Court is an inferior court, save for the circumstances set out in s.14(4A) of the Contempt of Court Act 1981. All other “courts”, of which the Magistrates’ Court and Coroner’s Court are the best-known examples, will be inferior courts.'
In Re McC (A Minor) [1985] AC 528 ('McC), Lord Bridge (with whom Lord Keith, Lord Elwyn-Jones, Lord Brandon and Lord Templeman agreed) gave the leading judgment as to whether a justice (magistrate) who acted 'without jurisdiction or in excess of jurisdiction' may be liable in a civil action for damages. In considering this, Lord Bridge considered the distinction between superior courts and inferior courts and held that (ignoring the Northern Ireland Act of 1964 reference as this is inapplicable), at 541:
'Whatever the juridical basis for the distinction between superior and inferior courts in this regard, and however anomalous it may seem to some, the distinction unquestionably remains part of the law affecting justices and will continue to do so as long as the language of either section 15 of the Northern Ireland Act of 1964 or section 45 of the Act of 1979 remains in legislative force in the two jurisdictions.' (the 1979 Act is Justices of the Peace Act 1979)
Lord Templeman in McC:
(1) said 554, at 'The authorities define and illustrate the circumstances in which a judge of an inferior court may be said to act without jurisdiction so as to make him personally liable for his actions. A magistrate is only granted limited powers...' - the implication being that the justice/magistrate in McC was a judge of an inferior court.
(2) made reference to some earlier authorities, at 554-555:
'In 1692 Gwinne v. Poole, 2 Lutw. 1560 decided that the liability of magistrates as judges of inferior courts for acts done in a judicial capacity but without jurisdiction was limited to cases where the magistrates knew or ought to have known that they were acting outside their jurisdiction. In the present case the magistrates did not know that the sentence that they were imposing on the respondent was unlawful but the respondent alleges they ought to have known.
In 1788 Morgan v. Hughes, 2 Term. 225 decided that magistrates, as judges of inferior courts, could be made liable in damages for wrongful judicial actions within their jurisdiction if the plaintiff could show that the magistrates acted maliciously and without probable cause. No question of malice arises in the present case. The respondent is not entitled to damages unless the magistrates in sentencing him to detention acted without jurisdiction.' [bold added]
In the Contempt of Court Act 1981, s.19 is entitled 'Interpretation' and includes the definition:
'“superior court” means the Supreme Court, the Court of Appeal, the High Court, the Crown Court, the Court Martial Appeal Court, the Employment Appeal Tribunal and any other court exercising in relation to its proceedings powers equivalent to those of the High Court.'
[11] In The Queen v The County Court Judge of Essex and Clarke (1887) 18 QBD 704, Lord Esher MR said:
Afterwards, by [County Courts Act 1846], county courts such as now exist (though their jurisdiction has been much enlarged) were instituted; prior to that time they had no existence; and it must be remembered that s. 17 of [1838 Act], was in operation when these courts were established. By the new Act the county court judges were empowered to make very peculiar orders, very different from a judgment at common law, which followed the writ; sometimes they are called judgments, but generally orders for the payment of money. These orders or judgments were, when necessary, enforced by a writ of fieri facias, which was as purely ministerial in its nature … and by the terms of s. 94…’
[I interpose here: of the [County Courts Act 1846]]
‘…the sheriff was by the writ authorized to levy "such sum of money as shall be so ordered" (which words apply to the original judgment or order for payment), " and also the costs of the execution." There is not a word in the section about including a sum for interest in the amount to be levied, and to justify the high bailiff in so levying the section should expressly have contained the words "and interest” which would have necessitated an altered form of warrant of execution. But the statute carries us further than this; by s.109 "the sum of money. and costs adjudged” is to be indorsed on every warrant of execution, and on payment of that sum by or on behalf of the debtor the execution is to be superseded; not a word is there said about interest…if I were seeking to interpret these two Acts without the assistance of previous authority, I should say that [County Courts Act 1846], cannot be construed to give interest upon county court judgments without reading into it words which it does not contain; and I should infer that the legislature, knowing of the existence of s. 17 of the earlier Act, carefully abstained from making its provisions applicable to the substantive Act which they had under consideration.’ [bold added]
[12] In respect to the (Council Tax) 1992 Regs, there are not relevant provisions about interest:
(a) The 1992 Regs Part V is entitled ‘Billing’. It contains no provision about interest.
(b) The 1992 Regs Part VI is entitled ‘Enforcement’ and contains regs.32 to 57 inclusive.
Reg.32 is entitled ‘Interpretation and application of Part VI’ and sub-reg.(3) states ‘Regulations 33 to 53 apply for the recovery of a sum which has become payable to a billing authority under Part V and which has not been paid;’
Reg.35(3) specifies post liability order enforcement:
‘The amount in respect of which a liability order is made is enforceable in accordance with this Part; and accordingly for the purposes of any of the provisions of Part III of the Magistrates' Courts Act 1980 (satisfaction and enforcement) it is not to be treated as a sum adjudged to be paid by order of the court.'
By reg. 32(1) ‘‘Liability order’ means an order under regulation 34 or regulation 36A(5).
Nothing about interest.
[13] In The Queen v The County Court Judge of Essex and Clarke (1887) 18 QBD 704, Lord Esher MR said:
'‘It must be remembered that when [1838 Act], was passed, there were no such county courts in existence as those created by [County Courts Act 1846]. At that time a judgment was at common law the end of the action of the Court, though under various statutes the Court might exercise a further jurisdiction as to a judgment already passed; it followed that it was the law, and not the Court, which was called upon to carry the judgment into execution.
…
I entertain a strong view that the word "judgment" in s. 17 means such judgments as were then known, judgments which were entered up…
Afterwards, by [County Courts Act 1846], county courts such as now exist (though their jurisdiction has been much enlarged) were instituted; prior to that time they had no existence; and it must be remembered that s. 17 of [1838 Act], was in operation when these courts were established. By the new Act the county court judges were empowered to make very peculiar orders, very different from a judgment at common law, which followed the writ; sometimes they are called judgments, but generally orders for the payment of money. These orders or judgments were, when necessary, enforced by a writ of fieri facias, which was as purely ministerial in its nature … and by the terms of s. 94…’ [bold added]
I.e. 'judgment' in s.17 'such judgments as were then known, judgments which were entered up' and the County Courts Act 1846 empowered the county court judges to make order, which were very different from a 'judgment at common law'. Yes, the county court issues what are called judgments, but generally they are order for the payment of money (which, inferentially, are to be taken to be something different).
[14] On first blush of Powys CC v Hurst [2018] EWHC 1684 (Admin) (‘Hurst’), might seems a very useful case. However, in the author's opinion, it is far less useful than it might first appear.
The difficulty with Hurst is that the Divisional Court was actually tasked with determining whether a liability order came with the following definition: ‘an order of a magistrates’ court for the payment of money recoverable summarily as a civil debt’ in section 2(c)(ii) of the Attachment of Earnings Act 1971 ('1971 Act'):
If it did, then automatically, it would, as per section 2 of the 1971 Act, be a ‘judgment debt’ for the purposes of the 1971 Act - and the gateway would be open to the Billing Authority, to seek an attachment of earnings order under the 1971 Act.
If it did not, then because section 2(c)(i) and 2(c)(iii) did not apply, the liability order was not a ‘judgment debt’ for the purposes of the 1971 Act.
The Divisional Court determined that the liability order did not come within the definition ‘an order of a magistrates’ court for the payment of money recoverable summarily as a civil debt’.
Importantly however, what the Divisional Court in Hurst did not do was:
(a) explain why a CTLO did not come within this definition. Singh LJ (with whom Hickinbottom LJ agreed) simply stated his finding in paragraph 42. It is not stated, for instance, whether this test was only not satisfied because one element was missing. As a result, it is hard to know whether a liability order might qualify as a ‘judgment debt’ in a statute which used the phrase ‘judgement debt’ in a different statutory context - in particular, as it appears in Judgments Act 1838 Act ('1838 Act'). It being recalled that the 1838 Act does not contain a definition section akin to section 2 to the Attachment of Earnings Act 1971;
(b) decide that a liability order can never come within the definition of ‘judgment debt’, no matter where that phrase appears in the statute book. The Divisional Court’s decision is much narrower than that.
The judgments in Hurst also dilute what has been said in an earlier authority. Hickinbottom LJ in Hurst rolled back on a statement Hickinbottom LJ made in an earlier authority, namely R (Woolcock) v Secretary of State for Communities and Local Government [2018] EWHC 17 (Admin); [2018] 4 WLR 49, DC ('Woolcock'). In Woolcock, at paragraph 13, Hickinbottom LJ stated ’A liability order confirms the amount of the outstanding debt, and the identity of the liable person. It is, in many ways, the equivalent of a judgment…’.
Diluting the amount of reliance that can be placed on this, Hickinbottom LJ in Hurst said, at paragraph 64:
‘In so far as it might be said that R (Woolcock) v Secretary of State for Communities and Local Government [2018] 4 WLR 49 , para 13 suggests that a liability order is indistinguishable from a judgment debt, it was never intended to do so.’
Hickinbottom LJ does not then go on to substitute his earlier statement with a more detailed and in-depth analysis.
Consequently, for the above reasons, Hurst is not really of any great assistance.