Augustine Housing Trust, R (on the application of) v Grays Magistrates Court

MR JUSTICE CRANSTON: This is an application for permission to apply for judicial review. It is listed for a half hour hearing, along with other applications this morning.

The application relates to two liability orders made for non-payment of national non-domestic rates in the sums of £14,595.36 and £16,624.87. Those orders were made by the Grays Magistrates' Court on 3rd June 2010. They related to Suite A and the vacant first floor on the first floor of Grover House, Grover Walk in the borough of Thurrock. No account was taken of charitable relief. The Magistrates on that occasion dealt with a number of applications. The solicitors for the claimant say that they put written submissions before the Magistrates. The list of ten submissions made in respect of other matters before the Magistrates on that occasion does not list any submissions on behalf of this claimant.

In this judicial review the claimant contends that the information required by the Council for the purposes of the charitable relief which the claimant seeks in relation to the payment of these non-domestic rates is not authorised by statute. In particular, the claimant takes objection to the provision of audited accounts, although I see from the papers that the Borough would be satisfied with unaudited accounts. The argument put by Mr Loveday on behalf of the Council, is that the relevant section does not require the production of audited accounts.

Section 43(6) of the Local Government and Finance Act of 1988 provides:

In his submissions to me, Mr Loveday contends on the claimant's behalf that there is no need for accounts to be produced and there is no statutory authority for that. It is a matter of record whether a ratepayer is registered as a charity and this claimant is so registered. Secondly, the accounts of the charity will provide no assistance at all in determining whether the property is wholly or mainly used for charitable purposes. That turns on other matters. Material which would support the use of the property for charitable purposes might well include witness evidence, contractual documents and licences, and so on.

What happened in this case is that this Council insisted on copies of audited accounts and other documents. Mr Loveday's submission is that to require this other information is to ask questions which are not relevant to the issue. Consequently, the Magistrates, when making the orders that they did, were approving decisions by Thurrock which could not be justified in law.

In my view, this argument gets nowhere. First of all, this is a matter which should have come to this court by way of case stated. The claimant contends that in June they did address a letter to the clerk of the Grays Magistrates' Court requiring him to state a case. There is a letter from the court, dated 20th August of last year, indicating that the first time that the court knew about this application was on 18th August, two days previously.

In any event, even if the letter had reached the court and was somehow mislaid, the very strict time limits for stating a case are well-known. It is the responsibility of solicitors acting for the claimant to pursue the matter and to ensure that the court had the letter requesting a case stated and had begun the process. There are situations where this court has allowed judicial review in cases where a case stated was an alternative remedy but that is in limited circumstances.

In any event, I see no merit whatsoever in the legal argument relating to the interpretation of the relevant section. It seems to me that the Council were entitled to require audited accounts along with other material to determine whether these properties did fall within the ambit of the section. In terms of the way that the case was put by Mr Loveday, it seems to me that this was relevant material and the Council was therefore entitled to require it. I can conceive of situations where the information requested by a council may become so onerous that the council could not justify requiring it. I can also conceive of situations where the information might be irrelevant to the issue as to the application of the section. To my mind there can be no objection to the Council requiring copies of the claimant's unaudited accounts.

I refuse permission.

MR KOHLI: My Lord, I am grateful. There is a statement of costs in relation to the preparation of the acknowledgment of service. My Lord, that was served last night. I will let my learned friend see a copy.

In addition, my Lord, we do rely on paragraph 62 of Mount Cook to say that this was a case that was hopeless and indeed the hopelessness of the case was brought to the attention of Charles Henry Solicitors and that this matter has been proceeded with despite its hopelessness. So we do ask in addition for the costs of the hearing.

MR JUSTICE CRANSTON: Where did you do that?

MR KOHLI: My Lord, it is not within the interim grounds, as it should be, but, my Lord, that is not a bar for me making that application today.

MR JUSTICE CRANSTON: Sorry, where did you point out to the solicitors that the case --

MR KOHLI: Sorry. My Lord, yes, I will hand up that letter to you. My Lord, do you have the copy of the schedule of costs?

MR JUSTICE CRANSTON: Yes, I have that.

MR KOHLI: I am grateful.

MR JUSTICE CRANSTON: Just remind me what Supperstone J said.

MR KOHLI: My Lord, yes. My Lord, page -- (pause)

MR JUSTICE CRANSTON: Well, let's hear Mr Loveday.

MR LOVEDAY: My Lord, plainly the notice has been given. All I can really say, in the light of your Lordship's judgment, is that, obviously in terms of the extent to which something is hopeless and an application is dismissed at this stage, they are not the same thing and what I would submit is that this was a genuine attempt to challenge the Magistrates' decision in a way that we are still -- until your Lordship's decision today we have not had any properly reasoned judgment in respect of that. So that --

MR JUSTICE CRANSTON: What about the actual figures?

MR LOVEDAY: My Lord, in terms of the figures, the main quarrel I would submit is with the solicitors fees in that in excess of a full day to prepare the acknowledgment of service and grounds of resistance seems somewhat on the high side and obviously we have attendance with solicitors today, when perhaps the matter could have been dealt by counsel alone, given that full skeleton arguments have been produced. I do not quarrel will counsel's fees.

MR JUSTICE CRANSTON: To my mind this is one of the exceptions in Mount Cook where the Council are entitled to get their costs. I would draw attention in particular to the earlier comments of HHJ Michael Kay QC sitting as a Deputy and also to the very robust way that Supperstone J refused permission.

As to the amounts involved, do you want to say anything about that, Mr Kholi?

MR KOHLI: My Lord, in relation to the point that has been taken on the solicitors fees taking eight hours to produce the acknowledgment of service, my Lord, as my learned friend conceded in argument, there is a substantial amount of correspondence going back a number of years in this matter. So it did take some time. That is all I would say about that.

In relation to solicitors' attendance today, my understanding is none of that is factored in this schedule. No, my Lord, my instructions are none of that is factored into the schedule.

MR JUSTICE CRANSTON: £3,000 in total.

MR KOHLI: My Lord, I am grateful.

MR JUSTICE CRANSTON: Thank you. Thank you very much. (pause)

Mr Loveday, you said right at the outset that you understood that you were properly instructed and I obviously accept that. I have been informed that Charles Henry and Co is a trading name for a charity, not a firm of solicitors.

MR LOVEDAY: My Lord --

MR JUSTICE CRANSTON: I am troubled by this.

MR LOVEDAY: My Lord, as I say, I made specific enquiries with this and my clerks made enquiries --

MR JUSTICE CRANSTON: I am not blaming you at all. You made enquiries. But I am troubled by it.

MR LOVEDAY: It may well be -- well, my Lord, if I were to make representations on behalf of the solicitors, those instructing me, I think I would need to take very complete instructions.

MR JUSTICE CRANSTON: I will consider what I am going to do about it. Thank you very much.

MR KOHLI: I am grateful, my Lord.