Nwankwo, R (on the application of) v Hendon Magistrates' Court

1. MR JUSTICE MOSES: This is an application with leave of the single judge seeking to quash a decision of the Hendon Magistrates. The decision was made on 20th November 2002. The magistrates on that date made an order that the claimant, Kate Nwankwo, should be sent to prison for 14 days unless she paid the sum of £892.04 by 14th December 2002. The sum in question, so it appears, and I shall explain my words of qualification in a moment, represented her liability to council tax.

2. The liability arose in February 1998 when Miss Nwankwo became a tenant of premises at 8 Douglas Court, Squires Lane, London N3. The flat was owned by the Paddington Church Housing Association. Miss Nwankwo says, and there is no evidence to the contrary, that she occupied the flat between February 1998 until 5th March 2001. She says her liability for council tax to the authority ended on that date; although, as she accepts, in the absence of proper notice to her landlord, she may have continued to be liable in respect of that amount until the landlord was aware that she had left the premises and had notice of that fact. They certainly did have notice by March 2002. But, asserts the applicant, she was not liable to the authority and thus not liable, in relation to enforcement proceedings, for a period beyond 5th March 2001.

3. On 17th November 2002 she was told that there was a warrant out for her arrest for non-payment of council tax. She had no notice of that warrant. It may be that documents relating to that warrant had been sent to her former address, but she was no longer there and her landlord knew she was no longer there. There then, according to the evidence of Miss Nwankwo, followed a conversation with a council tax officer on or around 17th November 2002. Miss Nwankwo, sensibly, arranged that she would meet the person to whom she was speaking, or a member of her staff, at Hendon Magistrates' Court so as to be served with the document in relation to the summons for the warrant.

4. By agreement she did attend at Hendon Magistrates' Court on 20th November 2002. She approached the council officer for papers, but he did not appear to have any. She went to the court office to ask for the documents. The court staff told her to wait. Then, within minutes, she says she was asked to go inside the courtroom. She was not aware that the hearing was for her committal. The court then read out the charge seeking committal for wilful or negligent refusal to pay council tax. Miss Nwankwo asked for the summons to be set aside and the decision making her liable for payment to be set aside. She further asked that the committal hearing be adjourned because she had not received any papers and no longer lived at the address.

5. According to her, the justices refused. She asked whether the court could first establish whether she was liable before deciding that she wilfully or negligently had refused to pay it, but they refused. She asked for the summons to be set aside as she had no knowledge of it, it having been sent to an old address. This was also rejected. She then explained that there was still an outstanding matter in relation to the quantum of arrears. That, indeed, was true. Barnet County Court had made a possession order by consent since she was no longer in those premises, but had adjourned until a later date the hearing as to the quantum of arrears. Again, the justices refused.

6. Miss Nwankwo then says she made an offer to make a reasonable payment by instalments to offset such liability as might be established. Again that was refused. She informed the justices of her place of work and her profession, and that enquiries could be made from her employers as to the amount of payment. She had by this time, although she was training earlier, become a qualified solicitor. She felt she was being treated like a criminal, and not being given a fair hearing. The culmination was that she was found guilty of wilful negligent refusal to pay council tax, and the order I have identified was made.

7. I should state that Hendon Magistrates' Court, as is in accordance with practice, have not sought to appear before me in an adversarial role. But I find it surprising if these papers as I must assume they were, were served upon them that, if there was any dispute as to the conduct of the hearing as to what happened, I have not been told about it. I am in the position where I am faced with the evidence of Miss Nwankwo and nothing to gainsay it. If I, as I have to, accept this is an accurate account of what happened, I can only say it should never have happened in that way. It appears to me that Miss Nwankwo, quite apart from any of the statutory provisions, to which I shall subsequently turn, was not given a proper or fair hearing before this very serious order was made against her. I am surprised that it being now well familiar as to the proper procedures before someone is committed to prison, even if that order is suspended, that that proper procedure was not followed in this case. No explanation before me has been forthcoming.

8. I turn then to the relevant statutory provisions. These, I should say, are set out in full in Volume 3 of 2003 Stones Justice Manual and, therefore, it is difficult to see why nowadays, particularly having regard to earlier authorities, the justices should find any difficulty as to the appropriate procedure. The relevant regulations are the Council Tax (Administration and Enforcement) Regulations of 1992 (SI 1992/613) with subsequent amendments, the last being in 2001). They are made pursuant to the Local Government Finances Act 1992 and particularly Schedule IV. Paragraph 8 of Schedule IV of the 1992, Act sets out those matters which the Regulations should provide before committing anyone to prison. In particular, the first stage is a requirement that the billing authority should apply for a liability order and, pursuant to regulation 34 of the 1992 Regulations, should thereafter, if the sums are not paid, once liability has been ascertained, seek to apply for an order for distress under regulation 45, and only thereafter seek commitment to prison. In relation to all these stages, there must be proper service. It is by now well known that at the very least notices should be served by way of recorded delivery: see R v the Newcastle upon Tyne Justices ex parte Devine [1998] 162 JPR 602. Under regulation 47 the court can only find wilful refusal or culpable neglect after considering making an inquiry as to why the defaulter has failed to pay, on being satisfied that there are no or insufficient goods sufficient to satisfy the liability on distress for whatever reason see 47(1). Only once the court is of the opinion that the failure is due to wilful refusal or culpable neglect may the warrant of commitment against the debtor be issued:

"Commitment to prison

47(1) Where a billing authority has sought to levy an amount by distress under regulation 45, the debtor is an individual who has attained the age of 18 years, and the person making the distress reports to the authority that he was unable (for whatever reason) to find any or sufficient goods of the debtor on which to levy the amount, the authority may apply to a magistrates' court for the issue of a warrant committing the debtor to prison.

(2) On such application being made the court shall (in the debtor's presence) inquire as to his means and inquire whether the failure to pay which has led to the application is due to his wilful refusal or culpable neglect.

(3) If (and only if) the court is of the opinion that his failure is due to his wilful refusal or culpable neglect it may if it thinks fit—

(a) issue a warrant of commitment against the debtor, or

(b) fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions (if any) as the court thinks just."

9. It is quite apparent from my recital of the facts that none of those stages was gone through before the suspended order was made. In particular, I have no evidence that distress was sought, or that it could reasonably have appeared to the court that the billing authority had been unable to find any insufficient goods to satisfy the liability. No proper inquiries to means was conducted, so that there was no basis upon which the court could have been of the opinion that there had been refusal to pay. The explanation appears to have been that there was a dispute about the quantum of liability, and Miss Nwankwo had not received the papers. This explanation, it appears, was given and the justices were not, on the evidence before me, prepared to listen, although it was their obligation to listen. There was absolutely no basis for the order made in this case. In those circumstances, I shall quash it.

10. MR ROY: My Lord, I hesitate to ask for costs.

11. MR JUSTICE MOSES: I am very concerned. Costs should not be ordered unless it is to mark inappropriate behaviour. What worries me is that I do not know what their attitude or explanation is. Is it right that I should make an order for costs without at least giving them a chance -- I suppose they have had their chance today to be heard?

12. MR ROY: Yes. It is not unusual for people to attend in a non-adversarial----

13. MR JUSTICE MOSES: Did they say why they were not going to attend?

14. MR ROY: There is a letter from?

15. MR JUSTICE MOSES: What is date of this?

16. MR ROY: It is 15th April:

"... We inform you it is not the intention of our justices to appear or be represented at the above hearing. I have forwarded a copy of this letter to the London Borough of Barnet who ... "

17. MR JUSTICE MOSES: Was Barnet served as well with these proceedings?

18. MR ROY: Yes.

19. MR JUSTICE MOSES: That is the billing authority?

20. MR ROY: Yes.

21. MR JUSTICE MOSES: What was their attitude to it?

22. MR ROY: The last letter sent -- this, in effect, goes over the original dispute which is whether or not Miss Nwankwo----

23. MR JUSTICE MOSES: Owes anything beyond March 2001?

24. MR ROY: Yes.

25. MR JUSTICE MOSES: I shall make the order as to costs, but what I shall say is that if within 14 days the court wishes to be heard on the question of costs they can appear before me within 14 days on notice to you, and I will hear them. If I hear nothing then the order will become, as it were, final. I do not know whether they realise the gravity of the position or not.

26. MR ROY: Should those instructing me write to Barnet?

27. MR JUSTICE MOSES: The court will send an order saying it has been quashed and that I have made an order for costs, but I am willing to give them liberty to apply to change my order if they want to be heard about it, but they have only 14 days to appear in front of me on notice to you.

28. MR ROY: My Lord, a schedule of costs has been prepared.

29. MR JUSTICE MOSES: I am worried about this "preparation and research into case law - £528.75", I mean it was not very well done. I am minded to reduce it by £500. I received a whole lot of stuff but it did not seem to me to go to the right regulations.

30. MR ROY: Yes. My Lord, all I can say is that those instructing me did spend a considerable amount of time doing research, it may not have been entirely to the point, but time was spent.

31. MR JUSTICE MOSES: It was their work and not yours. I am sorry, I am going to reduce it by £500. I make an order for costs in the sum of £1724.81. You can quarrel with your solicitor, you might have to pay out of your brief fee.

32. MR ROY: I am very grateful, my Lord.

33. MR JUSTICE MOSES: Thank you very much.