Liability orders made in absence of appellant — Absence due to error by appellant’s representative — Magistrates refusing to reopen case — Refusal of permission for judicial review — Whether magistrates having jurisdiction to reopen case — Appeal dismissed
The first respondent council sought liability orders against the appellant in respect of the non-payment of non-domestic rates on two properties. The hearing date was set for 19 September 2003, but the appellant’s wife, who was a solicitor and who was representing him, erroneously presented herself at the magistrates’ court on 16 September. She was informed that the court was not sitting owing to a flooding and that the parties would be informed of a new hearing date in due course. On 19 September, liability orders were made against the appellant in his or his representative’s absence.
Upon being notified of the orders, the appellant’s solicitor enquired as to whether the decision could be reopened or set aside. She was informed that no appeal could be made and that the case could be reopened only if the council agreed. Permission was subsequently refused for a judicial review claim challenging the magistrates’ decision to make the and their refusal to reopen that decision. The appellant appealed. The main issue on appeal was whether the magistrate had wrongfully refused to consider reopening the case.
Held: The appeal was dismissed.
Statute conferred no general power for magistrates to reopen cases in the exercise of their civil, as opposed to their criminal, jurisdiction. As to common law powers, the case law established that only where there had been a clear mistake by the court that went to the basis of its jurisdiction, or to the fairness of the proceedings, and where the resulting decision would clearly be quashed on judicial review, would it be open to the court to correct the mistake of its own motion: Liverpool City Council v Pleroma Distribution Ltd [2004] EWHC 2467; [2003] RA 34 considered. These cases should not be extended. It would be wrong for magistrates to regard themselves as having power to set aside their own decisions merely because of the existence of grounds that might support an application for judicial review. A party’s failure to be present, owing to the negligence of that party’s legal advisor, gave no ground for quashing the decision: R v Secretary of State for Home Department, ex parte Al Mehdawi [1990] 1 AC 876 applied. To hold, in the present case, that there was jurisdiction to reopen the case would be to hold that there was such a power even where the first decision was valid and not susceptible of being quashed on judicial review. It would involve recognising some general power to reopen hearings that the Magistrates Courts Act 1980 had deliberately not provided.
Philip Engelman (instructed by Anthony Ogunfeibo & Co) appeared for the appellant; Robert Bowker (instructed by the solicitor to Southwark London Borough Council) appeared for the respondents.
Sally Dobson, barrister
