AC-2024-BHM-000217 - [2025] EWHC 2510 (Admin)

Ms Lean submits that if I had found against the Defendant on the natural justice issue, then the court could refuse relief under s31(2A) Senior Courts Act 1981. The foundation for this submission is the scope of the Magistrates’ Court’s power under the Council Tax (Administration and Enforcement) Regulations 1992 (“the Regulations”), particularly Regulation 34(7) which provides:

“(6)

The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid.

(7)

An order made pursuant to paragraph (6) shall be made in respect of an amount equal to the aggregate of—

(a)

the sum payable, and

(b)

a sum of an amount equal to the costs reasonably incurred by the applicant in obtaining the order.”

Ms Lean’s argument is founded in R (Nicolson) v Tottenham Magistrates Court [2015] EWHC 1252 (Admin); [2015] RA 543, per Andrews J, as she then was, at [25, 31, 34]. From Nicolson she derives the propositions that in ordering costs to be payable as provided for under regulation 34(7), the Magistrates’ Court must be satisfied that:

Where the causal nexus is established, the question of whether costs were reasonably incurred is a matter for the Magistrates to determine, subject to challenge on Wednesbury grounds. Ms Lean’s bold submission is that once the court is satisfied that the costs have been reasonably incurred they have no discretion but to award costs in that amount.

Mr James also argues that the limit of the Magistrates’ Court’s jurisdiction on costs is that set out in Regulation 35 of the Regulations but he comes to a different result based on the interpretation of ‘incurred’. He relied upon A & D Computers Limited v Nottingham [2022] EWHC 2922 (Admin) at [26] perFarbey J.:

“Costs are incurred not only by the commencement of proceedings but also by the manner in which they are (or are not) pursued. Any party to proceedings in the Magistrates' Court should be prepared to pursue those proceedings conscientiously. It does not matter whether the party is a private or a public actor.”

While A&D Computers was a case concerning the exercise of discretion under s. 64(1) of the Magistrates Court Act 1980, Mr James submits that Farbey J was setting out the natural meaning of the word “incurred” in this context and the same meaning should be given to that word in reg. 35 of the Regulations. This is also consistent with the ‘instruction of QC’ example given by Andrews J at [51] of Nicolson.

In my judgment, Mr James’ argument is essentially correct. Nicolson is over-extended in the Interested Party’s argument. That was a case of very particular facts in which the Claimant provoked his case in the public interest in order to establish what local authorities were doing which justified their routine application for costs when seeking liability orders. Reverend Nicolson did not contest the liability order. On the contrary, he went out of his way to receive a summons so that he could test the system when he accepted that a liability order should be made. Nicolson is not about the costs of a contested liability order and it does not address the costs jurisdiction of proceedings which require several hearings over a period of a year.

I do not understand Andrews J to hold, nor to make any remark which was unnecessary for her decision, to the effect that the Magistrates did anything which was outside of their powers in this case. To the contrary, per Nicolson at [51-52] the amount of costs is open to challenge in an appropriate and individual case. This case is unusual in that the liability order was contested. The costs incurred are well outside of the norm, but in my judgment the Magistrates were obliged to consider what sum was ‘reasonably incurred’. That was a matter which the Magistrates were best placed to assess.

For these reasons, if I had found there to be a breach of natural justice, I would not have refused relief.