Justices pay extra costs of not signing consent order

Regina v Stoke-on-Trent Justices, ex parte Booth; Queen's Bench Division (Mr Justice Owen); 26 January 1996

Although orders for costs against justices affected the morale of justices, where it was abundantly clear they should have consented to the quashing of their committal order for non-payment of community charge, the costs caused by their declining to sign the consent order should be paid by them.

Mr Justice Owen gave reasons for ordering on 25 January 1996 that the justices should pay the extra costs of unnecessary representation at a hearing on 23 March 1995 caused by their declining to sign an order consenting to the quashing of their order committing the applicant, Barbara Booth, to prison for failure to pay community charge. Mr Justice Owen made no order against the justices in respect of the proceedings on 25 January 1996.

In July 1993 the justices found the applicant had culpably neglected to pay her community charge. The amount outstanding was pounds 800. They ordered her committal for 90 days, the maximum sentence, postponed on payment of weekly amounts. In September 1993 the justices ordered a warrant for her committal to prison for 87 days.

Between January and July 1994, four committal orders by the Stoke-on- Trent justices for non-payment of community charge were quashed in judicial review proceedings.

The applicant was given leave to apply for judicial review of the justices' decision in March 1994. In June 1994 the applicant's solicitors asked the justices to sign an order consenting to their decision being quashed but they refused.

In October 1994 the Divisional Court in R v Newcastle under Lyme Justices, ex parte Massey and others (Law Report, 7 October 1994; [1994] 1 WLR 1684) gave guidance on the circumstances in which an order for costs could be made against justices in judicial review proceedings.

In December 1994 and February 1995 two more committal orders made by the Stoke-on-Trent justices were quashed. On 23 March 1995 Mr Justice Owen quashed the committal order made against the applicant. His provisional view was that there were good reasons for ordering costs against the justices when they failed to sign the consent order but they should be given an opportunity to make representations.

The justices' affidavit was sent to the applicant's advisers who were invited to make submissions on paper without the expense of a hearing. The invitation was rejected and the application for costs was heard on 25 January.

Ian Wise (Clyde Chappell & Botham, Stoke-on-Trent) for the applicant.

Mr Justice Owen said that, in just over 12 months, seven decisions in which the Stoke-on-Trent justices had committed to prison for failure to pay the community charge were quashed. The clerk and the justices would also have become aware in October 1994 of the principles applicable when ordering costs against justices in Crown Office civil proceedings.

While the justices' decision not to sign the consent order was not flagrantly perverse, it was clearly one which in the light of the law could not be justified. None of the matters in the justices' affidavit raised any argument against the provisional conclusion that there should be an order for costs against them.

The consent order was sent for their consideration. Their attitude, in order to save unnecessary costs, should have been to consider the consent order in the light of the judgment in ex parte Massey. In accordance with the law stated in ex parte Massey, his Lordship was bound to make an order against the justices.

His Lordship could well understand the effect on the morale of justices of orders for costs. However after receipt of the judgment in Massey, it must have been abundantly clear that whilst the regulations permitted imprisonment for failure to pay a community charge, that was an unusual situation since imprisonment for debt was not usual. Any deprivation of liberty required careful consideration. When a sentence of imprisonment was to be imposed without criminality there was a greater demand for such consideration. Those considerations would have ensured a consent order in some form would have been signed.

Just as the justices could have avoided unnecessary expense by signing a consent order so also could the applicant's advisers have avoided unnecessary expense by allowing the question to be decided on paper. That position was reflected by making no order for costs for the hearing on 25 January 1996.