Durham County Council v North Durham Justices

MR JUSTICE MOSES: This is an application for judicial review and an appeal by way of case stated. Durham County Council ("the Council") is the prosecution authority within the city of Durham for the purposes of prosecuting parking fine defaulters. Following advice given by the North Durham Justices' Chief Executive and guidance, the Justices, in the cases before us, adjourned the cases of a number of defendants who had been served with summonses by post so that they could be served personally. The issue in these cases is whether the Justices were entitled to adopt that course or whether, in so doing, they misinterpreted the statutory regime for service of summonses provided in Rule 99 of the Magistrates' Courts Rules 1981 as amended ("the 1981 Rules").

The Council challenge the decision of the Justices to require personal service and the guidance promulgated by the Justices' Chief Executive. The decision of the Justices was initially appealed by the Council by way of case stated. The case stated by the Justices on 24th January 2004 is annexed at annex 1 to this judgment.

On 16th February 2004 Collins J, taking the view that judicial review might be more appropriate, directed the Council to lodge a claim for judicial review to be heard with the appeal. Richards J gave permission, in writing, and dispensed with the normal timetable. The defendants, the North Durham Justices, were entitled to file grounds in opposition. They have chosen not to do so nor have they appeared.

On 27th October 2003 the cases of a number of individuals were brought before the Justices. The solicitor, Miss Freeman, appearing before the Justices on behalf of the Council, stated that each had been served with the summons to the last known address in purported pursuance of Rule 99 of the 1981 Rules. She invited the Justices to proceed to hear the evidence and reach a determination.

Between 24th September and 7th November 2003 the Council had laid informations against a number of individuals and they are specified in paragraph 1 of the case stated. It was alleged against them that they had breached section 47(1) of the Road Traffic Regulation Act 1984, local bye-laws, and section 112(4) of the Road Traffic Regulation Act 1984.

Section 47(1) of the Road Traffic Regulation Act 1984 reads, so far as is relevant:

Section 112 of the 1984 Act provides:

Subsection (4) provides:

The Justices, on being invited to proceed to hear evidence and reach a determination by the solicitor appearing for the Council, received advice from the justices' clerk in accordance with a letter which had been circulated on behalf of the Chief Executive of the Magistrates' Court which reads as follows:

The Justices had further been furnished with written guidance, which is undated, but also emanates from the Chief Executive. It repeats the problem concerning identification of defendants and continues:

Thereafter it goes on:

It was this advice which led the Justices to refuse to continue to hear the evidence and to adjourn the cases for personal service. Miss Freeman, in her evidence, describes the submissions that she advanced and sought to persuade the Justices that they should not follow that guidance. The summonses, the subject matter of the hearing, on 27th October 2003, had been served on each of the defendants who are named in a schedule to her evidence, and whose names I need not read out. They had, as she described, identified the vehicle, the date that it had been parked and had incurred the fixed daily charge. It described the fact that the fixed daily charge notice had been attached to the vehicle requiring payment. It further identified the fact that enquiries had been made with the DVLA revealing the registered keeper of that vehicle and that a notice pursuant to section 112 had been sent to the particular defendant.

The summonses had been issued once no reply had been received. It is, of course, well known that it is the responsibility of any holder of a licence to notify the DVLA of any change in address, or change of name, pursuant to Regulation 18 of the Road Vehicles (Registration and Licensing) Regulations 2002. The research of my Lord, Leveson J has also enabled me to point out that a failure to comply with that requirement is an offence contrary to the Vehicle Excise and Registration Act 1994 section 59(2)(a), so that the registered keepers who failed to respond to the notices, and who might say that they were no longer at the address on which those summonses had been served, have no legitimate complaint since it was their responsibility to ensure that the address recorded at the DVLA was the correct address.

The outcome of the cases, as a result of the ruling, is set out in the schedule to Miss Freeman's evidence. Efforts were made to serve some of the defendants but to no avail, and in consequence of the Justices' ruling, in respect of some of these defendants, the cases were withdrawn. Other defendants were found and were fined. We were told, today, that all the cases have now been resolved, either by being withdrawn or by fines being ordered.

In those circumstances none of the defendants, none of whom had been served with these proceedings, have been involved in this case or had any concern. But the matter is, of course, of particular concern to Durham County Council, trying as it is to enforce the important parking schemes within the city.

Miss Freeman describes how efforts were made to serve these defendants in accordance with the ruling of the Justices. But, as she points out in her written statement, the Council has been unable to obtain the date of birth of defendants in these cases. It should be recalled that that was part of the requirement of the Chief Executive; failure in respect of which would lead to the order for personal service. Miss Freeman points out that the Council will be severely restricted in its ability to enforce the parking orders should that requirement be maintained.

The Council normally requests the listing of between 20 to 40 prosecutions at each attendance, occurring between 4 to 8 weeks. The cost of personal service, she calculates, amounts to some £10 to £15. It is much higher outside the County of Durham where quotations have been received for sums between £45 to £85. In one case the Council had been charged some £40 even though personal service was not effected.

In those circumstances, it is readily understandable that the cost of enforcement is disproportionate to the parking charge to be enforced and would lead to what she describes, graphically, but, in my view, accurately, as a postcode lottery. Chaos would ensue should the Council be required to attempt personal service, in the sense that drivers will become readily aware that enforcement is not possible, and so long as they do not reveal their addresses they can park with impunity and breach the law in that way, if the Justices have construed the law correctly.

The effect of this advice is not limited to Durham City Council. Miss Freeman also points out that a similar approach has been adopted by justices in the Chester le Street area, Darlington, and Wear Valley. The question, therefore, whether the Justices have correctly construed the law, is of particular significance to those concerned with unlawful parking in those areas.

Section 11(1) of the Magistrates' Courts Act 1980 provides:

It is apparent from that section that it is incumbent upon a prosecutor, who seeks to proceed in the absence of a defendant, to serve the summons in a way prescribed. Section 11 does not itself describe the manner in which a summons must be served. The manner in which a summons must be served is prescribed by Rule 99(1), of the Magistrates' Courts Rules 1981. Rule 99(1) provides:

In respect of each and every one of these defendants, the summons were served in accordance with Rule 99(1)(c) by sending it by post in a letter addressed to his or her last known place of abode.

By Rule 67(2) of the 1981 Rules:

The reason for the Justices' order that the hearing of the evidence be adjourned so that the defendants should be personally served, has not been amplified in any way before us, because the Justices have not sought to appear to advance any argument as to the proper construction of Rule 99, or any justification in law for the advice given to the Justices. The only hint that we have of their reasoning is contained in the case stated at paragraph 5 in which they say:

It appears, therefore, that the Justices have claimed a discretion as to how the summons should be served. The wording of Rule 99 makes it plain that the Justices have no such discretion. No such discretion exists. The obligation to prove service is contained within section 11 of the 1980 Act. The use of the word 'may' within Rule 99 merely connotes that the prosecution has a choice of one of three methods of fulfilling the obligation it has of serving the summons, if it wishes to proceed in the absence of the defendant pursuant to section 11. A power is conferred on the prosecution responsible for serving a defendant to choose one of three ways in which to serve that defendant. Provided one of those three ways has been adopted to the satisfaction of the Justices, the Justices have no power to interfere, and certainly have no discretion to require the prosecution to choose one of the three methods prescribed in the alternative by Rule 99.

Section 7 of the Interpretation Act 1978 lends support to that reading of Rule 99. It provides:

It would be absurd if, in relation to parking offences, there was any power in the Justices to require the prosecutor to undertake arduous, expensive and often fruitless attempts personally to serve defendants who had either not bothered to answer the fixed notice and penalty notice requirements or to notify the DVLA of a change of address.

In my view, the Justices misconstrued Rule 99 and in so doing misconstrued their power. They had no discretion to refuse to hear the summonses and accordingly erred in law in making the order as to personal service.

The Justices had no jurisdiction to state the case as they were requested to do, because they had not reached a final determination in any of these cases relevant to the challenge. Some of the cases were subsequently determined, but their determination could not properly be the subject of any challenge.

In Streames v Copping [1985] 2 All ER 122, this court made clear that where the Justices had not made a final determination they had no jurisdiction to state a case following the decision, in the context of committal justices, of the House of Lords in Atkinson v United States Government [1969] 3 All ER 1317 (see the judgment of May LJ at page 127 a - b).

I should also draw attention to the fact that to state a case at an interlocutory stage provides no warrant for judicial review of magistrates' decisions at an interlocutory stage, the danger in respect of which was underlined by The President in R v Greater ManchesterJustices ex parte Aldi GMBH & Co. KG, an unreported decision, 13th December 1994, at page 15 of the transcript.

The challenge, although at an interlocutory stage of these proceedings, was appropriate here, since the real challenge was focused and directed to the policy or guidance. The fact that justices have a policy and act in accordance with a guidance, so long as those appearing in the court are aware of it and are able to argue about it, cannot be the subject of any legitimate complaint. But the guidance in this case was not lawful. The Justices had no power to act in the manner which contradicts the clear provisions of Rule 99. There can be no argument but that statements of policy or guidance can be properly impugned in proceedings by way of judicial review.

For my part, therefore, I would quash the order of the Justices to adjourn these proceedings so that personal service can be sought, and make a declaration in the terms about which I shall hear further argument from counsel. It may indeed be unnecessary to quash anything and simply make a declaration.

MR JUSTICE LEVESON: I agree. For the reasons given by my Lord, Moses J, the Justices have no lawful basis for requiring personal service of an information solely because details of the proposed defendants, not required by law to be included in the summons, have not been provided. The fact that these details might be of value in the event that enforcement should be necessary is irrelevant.

MR JUSTICE MOSES: Mr Spencer, what are you seeking by way of relief? Since all these cases have now been disposed of it seems rather pointless to quash anything.

MR SPENCER: My Lord, yes.

MR JUSTICE MOSES: Are you seeking a declaration that the guidance contained in the letter of 12th June 2003 -- the one at page 24 seems to be undated, have you a date for that?

MR SPENCER: My Lord, we do not have a date for it.

MR JUSTICE MOSES: What do you propose by way of declaration?

MR SPENCER: My Lord, there was some confusion. We have attempted to extrapolate from the Justices' Chief Executive the date. We believe it to be -- the document at page 4 to be --

MR JUSTICE MOSES: 24.

MR SPENCER: 13th August, the letter your Lordship sees at page 25 has the date on it 12th June, but there were further discussions. Then the policy that your Lordship sees at page 24, we understand to be dated 12th August. Miss Freeman confirms that at paragraph 27 of her witness statement.

MR JUSTICE MOSES: 12th August of what?

MR SPENCER: Can I take your Lordship, please, first, to the case stated. It is tab 1, page 9A, and there has been an insertion there, it is XIX.

MR JUSTICE MOSES: I do not know what you are referring to I am afraid.

MR SPENCER: Would your Lordship forgive me for one moment? (Pause)

MR JUSTICE MOSES: What do you say Mr Spencer? Leveson J's suggestion is that we make a declaration in accordance with the judgment; that provided that service has been effected in accordance of the provisions of Rule 99(1), justices have no power to order personal service.

MR SPENCER: Yes, my Lord, we are happy with that. I was making a note of Leveson J's acceptance of your Lordship's judgment and then the addition to that, and we are happy. I think his words encapsulate what your Lordship has just said, and we are happy with that.

The confusion as to the date, whether it be 12th June at page 25, or a later date, arises out of the Justices' response in the case stated at page 6 of the bundle, in answer to question 7, towards the bottom of the page, the final paragraph.

MR JUSTICE MOSES: Yes.

MR SPENCER: Your Lordship will see there the date 12th August. Again your Lordship knows that we have attempted to identify --

MR JUSTICE MOSES: I think what we will do is make a declaration in these terms: that the Justices have no power to order personal service in circumstances where defendants have been lawfully served pursuant to Rule 99(1) of the Magistrates' Courts Rules 1981.

MR SPENCER: Would your Lordship just forgive me for one moment?

MR JUSTICE MOSES: What I was also proposing to do was - although this is no longer an appeal by way of case stated - so that there is no doubt, to make clear, and I can do that when I correct my judgment, that in respect of all the questions asked by the Justices in their case stated the answer is "No", save in respect of the last question where the answer is "Yes". That also makes it clear.

MR SPENCER: Thank you, my Lord. I was just checking with Miss Freeman whether your Lordship's proposed wording would cover the difficulties and our inability to provide the essential information required at page 24, and Miss Freeman has confirmed it does, so we are happy.

MR JUSTICE MOSES: They may want you to do that, but they have no power to require you to do so.

MR JUSTICE LEVESON: Doubtless you will want to assist where you have information for the purpose of enforcement. The idea is to get the money.

MR SPENCER: Again your Lordship will have seen from Miss Freeman's statement we do what we can, whether it is from the statutory authorities or whether it is from the local authorities where we know they will provide information from the register in respect of rate payers. So, whatever is open to us we try to assist, and that will continue to be the position.

MR JUSTICE MOSES: Yes, thank you very much indeed.

MR SPENCER: My Lord, can I just raise one final issue?

MR JUSTICE MOSES: Yes.

MR SPENCER: A schedule of costs has not been sent into the court, and there is not a final version of one available to the court today. Durham has been put to some expense --

MR JUSTICE MOSES: Who are you seeking costs from?

MR SPENCER: The North Durham Justices.

MR JUSTICE MOSES: Are you able to get costs from the magistrates?

MR JUSTICE LEVESON: Particularly where they do not appear.

MR JUSTICE MOSES: If it was a case stated you could not.

MR SPENCER: My Lord, in these circumstances we would say that it is appropriate for us to obtain our costs. They could have, in light of being served once with a case stated and then after Collins J's order with the claim form, they could have agreed by consent to our application. So, as a result of that, we have been put to expense that we should --

MR JUSTICE MOSES: What we propose is to give you your costs of the judicial review proceedings.

MR SPENCER: Thank you.

MR JUSTICE MOSES: But to say that the magistrates, the North Durham Justices, have 14 days in which to argue about any costs. If they do not then that order will be final. If they do wish to, within 14 days they should notify you and the court and send written submissions. Then you can reply within 7 days of receiving those submissions as to costs and then we will determine it in writing. We will not give a great long judgment, but we will consider the submissions and reach a conclusion as to costs on writing if they wish to protest.

MR JUSTICE LEVESON: That is both as to principle and amount, of course.

MR JUSTICE MOSES: We do not have a schedule so we are not making any -- have you a schedule?

MR SPENCER: There is no final schedule today that I can --

MR JUSTICE MOSES: But you will produce one, will you?

MR SPENCER: I will produce one, my Lord, yes.

MR JUSTICE MOSES: You better make sure they have it.

MR SPENCER: That will be done, thank you.

MR JUSTICE MOSES: Yes, thank you. You better produce that schedule -- if they only have 14 days, how long do you need to produce that schedule?

MR SPENCER: It will be done within 2 days at the latest.

MR JUSTICE MOSES: Yes, 48 hours. Yes, thank you.