Council Tax Court Costs – Liability Order/Summons

[outlawla]

Local Authorities are a law to themselves and this is especially true when you consider the way Magistrates' Courts are exploited by councils for rubber stamping thousands of liability orders in a process which typically takes up less than an hour of courtroom time.

 

It's usual for councils to be awarded hundreds of thousands of pounds costs in respect of each court application. Unlike typical hearings where Judges determine the level (if any); councils tell the Justices Clerk in advance how much Magistrates should award.

 

This is what happens in reality but wonder if what they do is in accordance with the law.

 

The Magistrates Courts' Act 1980 provides at section 64, the power to award costs.

 

64 Power to award costs and enforcement of costs.

 

(1) On the hearing of a complaint, a magistrates' court shall have power in its discretion to make such order as to costs -

(a) on making the order for which the complaint is made, to be paid by the defendant to the complainant;

 

(b) on dismissing the complaint, to be paid by the complainant to the defendant.

As it thinks just and reasonable..."

 

(2) The amount of any sum ordered to be paid under subsection (1) above shall be specified in the order, or order of dismissal, as the case may be.

 

If anyone can confirm; the question is,

 

will the above be the relevant legislation applying to costs, Magistrates award local authorities in respect of Liability Order applications. This would presumably include summons costs that councils offer householders the option to pay, in exchange for halting the court action.

 

Regulation 34(2) is the relevant part of the Council Tax (Administration and Enforcement) Regulations 1992, making provision for application to the Magistrates' court.

 

Application for liability order

 

34.—(1) If an amount which has fallen due under regulation....., the billing authority may, in accordance with paragraph (2), apply to a magistrates' court for an order against the person by whom it is payable.

 

(2) The application is to be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding.

 

 

Regulation 34 goes on to exclude a couple of sections of the Magistrates' court Act, but neither of these are in connection with section 64 (costs).

 

If section 64 of the 1980 Act is the relevant law for which Council Tax costs must conform, there are some irregularities which would seem to question the legality of the summons charge councils force us to pay.

 

Anyone throw some light on this?

Edited March 29, 2013 by outlawla

[postggj]

The question i would like answered is

 

when liability hearings are placed before the magistrate, will the magistrate be acting in a judicial affair or administrative capacity.

 

If administrative, then the court will be no more than a star chamber court which were abolished in 1642

 

judicial will be on points of law and subject to the criminal procedure rules, note the word CRIMINAL

[outlawla]

You've raised a good point and relevant to where I was heading with this.

 

• What is non-payment of Council Tax (more often late payment) classed as?
  

• Can it be categorised as an offence?
  

• Can a costs order be classed as a fine? (Under the liability order, you can be fined for not supplying information).
  

• Is it criminal (failure to pay could lead to a custodial sentence)
  

Depending on the above and whether section 64 of the Magistrates courts' Act applies; the following (section 50 of the Magistrates' Courts Act 1980) may bring into question whether the court has or ever has had, any power to award costs under that Act.

 

50 Construction of references to complaint in enactments dealing with offences.

 

In any enactment conferring power on a magistrates’ court to deal with an offence, or to issue a summons or warrant against a person suspected of an offence, on the complaint of any person, for references to a complaint there shall be substituted references to an information.

 

The importance is on the terminology "offence". If an offence then for references to a complaint there shall be substituted references to an information.

 

Reading from around paragraph 7 of this High Court judgment then it should be clear where I'm heading:

 

R (Desouza) v Croydon Magistrates' Court [2012] EWHC 1362 (Admin)

[postggj]

as stated

 

what is the offence being put before the magistrate

 

criminal or civil

 

if criminal then what statutory offence with criminal penalties are being applied

[outlawla]

If you complain to the police about a bailiff defrauding or attempting to defraud you while enforcing a Liability Order, then he will state categorically it's a Civil matter. Presumably it's Civil only for convenience as he will most likely have instructions from the top to allow these crimes to slip by.

[postggj]

as far as i am aware the local government finance Act are statutory lawful rules, not criminal sanctions

 

so the question needs to be asked

 

why a magistrates court, and not a civil court

[revshelp]

The magistrates court is acting as a civil court when dealing with Council Tax.

 

http://en.wikipedia.org/wiki/Magistrates'_court_(England_and_Wales)

 

I'm not sure why this is the case, possibly because it won't affect your credit rating like a CCJ?

Edited March 30, 2013 by revshelp

[postggj]

this is where it is unlawful

 

A magistrates court can only give a decision on proven facts

 

A civil court can use judicial discretion in reaching a decision (common law right) by the judiciary

 

As i have stated, administrative courts have been abolished in 1642 (Star Chamber Courts)

 

SO BY WHAT STATUTORY AUTHORITY CAN A MAGISTRATES COURT ACT IN AN ADMINISTRATIVE CAPACITY IN GIVING JUDGEMENT

[outlawla]

Looking at the Magistrates' Court Act 1980, there are seven distinct parts, two of which are;

 

• Criminal Jurisdiction and Procedure
  

• Civil Jurisdiction and Procedure
  

Taking this into consideration then, section 50 of the 1980 Act (relied on in first post) falls under Part I, Criminal Jurisdiction, and presumably blows out of the water, my attempts to argue that Magistrates' courts have never had powers to award costs in Liability Order cases.

 

Not all is lost though. There's also the question of how councils can impose costs before the date of the hearing.

 

Remember:

 

64 Power to award costs and enforcement of costs.

 

(1) On the hearing of a complaint, a magistrates' court shall have power in its discretion to make such order as to costs -

Edited March 30, 2013 by outlawla

[BRIGADIER2JCS]

Council Tax Admisinistration and Enforcement Regs 1992 relates as well.

[postggj]

And why is a schedule of costs fully particularised not presented to the magistrate and defendant prior to the magistrate awarding costs

 

why is the defendant not given an opportunity to challenge those predetermined costs set by the local authority

[outlawla]

And why is a schedule of costs fully particularised not presented to the magistrate and defendant prior to the magistrate awarding costs

 

why is the defendant not given an opportunity to challenge those predetermined costs set by the local authority

 

I agree that the council don't (or don't have to) submit evidence to support their costs, but you do have the right to challenge them. Making it clear you want to do this gives them no option in law to deny you a hearing. I'm sure some/most Councils tell defendants they have no right though.

 

It will state that you have been summonsed to appear before Magistrates on the summons document. It has to say this to be in accordance with the Council Tax regulations.

 

However, it's a stitch-up, so even if you present your case to the Bench it's unlikely the Justices would disagree with the council's application for costs.

[postggj]

i would seek leave to appeal to the crown court to have the costs application particlarised if it is denied at the magistrates

 

case law dictates that an organisation cannot profit in any cost application.

[outlawla]

The only route of appeal is through the High Court. Either by Judicial review or, on a point of law by applying to the Magistrates' court to state a case for an appeal to the High Court. (Criminal Procedure Rules, rule 64.2)

 

This report is a bit of an eye-opener, particularly paragraphs 8 and 9.

 

Eastleigh Borough Council Court Costs Review

 

Proposals for Future Charges

 

8. Previously any increases in costs charged by the Council needed the approval of the Clerk to the Magistrates Court to ensure that the costs being levied were reasonable.

 

9. After contacting the Clerks to the Magistrates’ Court they have now confirmed that it is for the Council to decide on an appropriate level of fees in order to cover their costs and no approval is required from them.

Edited March 30, 2013 by outlawla

[postggj]

An application can be made through the crown court, though it does not set case law

 

we are not deciding case law, we are disputing judicial procedure

 

we will have a status of a persuasive precedent within Ratio decidendi when the judge reaches his decision

[outlawla]

i would seek leave to appeal to the crown court to have the costs application particlarised if it is denied at the magistrates

 

case law dictates that an organisation cannot profit in any cost application.

 

This is interesting. Didn't know there was an alternative route. Are there time constraints?

[postggj]

Not to my knowledge on time constraints

 

Their is recognised case law to support this, i will dig it out

 

In my last post i mentioned Ratio decidendi

 

If a case on local authority costs has already been to a higher court, which includes a crown court, a magistrate must abide by its decision as it is supported direct from common law principles

 

It is truly a powerful weapon in the magistrates court if fully understood by the advocate

 

The problem is in finding out if it has been used previously, and it only sets a persuasive precedent

[EWHC1362]

Taking this into consideration then, section 50 of the 1980 Act (relied on in first post) falls under Part I, Criminal Jurisdiction, and presumably blows out of the water, my attempts to argue that Magistrates' courts have never had powers to award costs in Liability Order cases.

 

Presumably you gave up on the grounds that Council Tax Liability Orders are applied for under Part II (Civil Jurisdiction) of the Magistrates Court Act 1980 and so section 50, under Part I (Criminal Jurisdiction) doesn't apply.

 

If you read the case law cited earlier "R (Desouza) v Croydon Magistrates' Court [2012] EWHC 1362 (Admin)", this clearly deals with an offence coming under Part I (Criminal Jurisdiction) but considers costs in the Judgment under Part II (Civil Jurisdiction).

 

Like you said, the importance is on the word offence. What is non-payment of Council Tax if not an offence?

 

Perhaps it's not time to throw in the towel just yet.

[revshelp]

I fully agree with the need for more clarity when costs are applied for, especially if the costs are the only amount outstanding at the liability hearing. I imagine the Council would argue that the costs they put forward would be the minimum level, and as not all customers turn up to the hearing that they have an obligation to inform what they intend to apply for.

 

Obviously each case could well be different, and it should be up to the Magistrates Court to decide and for the defendant to challenge the level of award if any. How common this is or how likely a defendant is to succeed I don't know.

 

What is non-payment of Council Tax (more often late payment) classed as?

It is can be though of as a breach of contract (though this is not technically right definition, perhaps more correctly a ?breach of statute?) as payments have to be made by prescribed instalments.

Can it be categorised as an offence?

It is not a Criminal offence but a civil matter as the Billing Authority as the plaintiff has no law enforcement role.

Can a costs order be classed as a fine? (Under the liability order, you can be fined for not supplying information).

The cost themselves should not be considered as a fine. (But as you point out you can be held in contempt of court once a liability order has been granted and you fail to provide information.)

Is it criminal (failure to pay could lead to a custodial sentence)

The committal for not payment is not a punishment, but a tool at the councils/courts disposal to coerce payment. It is definitely not a criminal sanction in this context.

 

As i have stated, administrative courts have been abolished in 1642 (Star Chamber Courts)

 

SO BY WHAT STATUTORY AUTHORITY CAN A MAGISTRATES COURT ACT IN AN ADMINISTRATIVE CAPACITY IN GIVING JUDGEMENT

The Magistrates court are acting as a CIVIL JUDICIAL body under the relevant parts of the Magistrates Court Act 1980 and NOT an Administrative court. They must base their decision to grant a liability order based on the facts presented by the Plaintiff namely:

• The Council Tax has been set by the Authority
  
• The house appears in the Valuation List
  
• The amount has been demanded
  
• That Reminder/Final Notices have been issued
  
• That the summons has been issued
  
• And, the amount, including costs, has not been paid.
  

And that Council Tax payer as the defendant has the right to make a defence, including against the costs. Certain defences can not be used as they fall under the jurisdiction of the 'Valuation Tribunals'. In reality this does not happen either as the defendant does not turn up or because the council officer dissuades the payer from appearing and to make an agreement, which is why the process has been seen to fall into disrepute as a rubber stamping exercise.

 

i would seek leave to appeal to the crown court to have the costs application particlarised if it is denied at the magistrates

case law dictates that an organisation cannot profit in any cost application.

There is NO APPEAL to the Crown Court as it is not a Criminal matter, the Crown Court being a court of first instance for criminal cases. The official appeals process is by way of 'Case Stated' using Section 111 Magistrates’ Court Act 1980 to the High Court or by way of judicial review.

[postggj]

i beg to differ on the appeal to the crown court

 

if costs have been awarded that do not represent the true cost to the local authority, that will be in contravention of established case law

 

it is not the granting of the liability order that's the cause of concern, it is the issue of set costs to everybody who receives a summons by the local authority

[outlawla]

.....It is not a Criminal offence but a civil matter as the Billing Authority as the plaintiff has no law enforcement role....

 

Would this mean that non-payment of Council Tax, although not a Criminal offence, could be termed a Civil offence?

 

It states on Southwark council's website it is an offence; Blackburn has similar:

 

 

If you do not pay your council tax

 

Not paying your council tax is a serious offence and can result in severe action being taken against you.

 

 

With confirmation of this, the question would then be, could section 50 of the Magistrates' Court Act 1980 apply in Liability Order applications.

 

50 Construction of references to complaint in enactments dealing with offences.

 

In any enactment [1] conferring power on a magistrates’ court to deal with an offence, or to issue a summons or warrant against a person suspected of an offence [2], on the complaint of any person, for references to a complaint there shall be substituted references to an information.

 

[1] The Council Tax (Administration and Enforcement) Regulations 1992 – Part VI Enforcement 34(2)

 

[2] Summonsed for Non-payment of Council Tax

Edited March 31, 2013 by outlawla

[revshelp]

I don'k now if theres is a legal definition of "offence" and wouldn't want to give a definite answer. Referring to the dictionary

1. a violation or breach of a law, custom, rule, etc.

2.

a. any public wrong or crime

b. a nonindictable crime punishable on summary conviction

it seems fairly wide definition, possibly leaning towards criminal more than civil.

 

I would still say council tax was civil concern, nowhere in Sections 34-36 of The Council Tax (Administration and Enforcement) Regulations 1992 does it refer to an offence being committed, and the magistrates court don't issued a conviction, sentence or criminal record.

 

I think its more likely to fall within Sections 51 and 58 of the Magistrates' Court Act 1980.

51-Issue of summons on complaint

Where a complaint relating to a person is made to a justice of the peace, the justice of the peace may issue a summons to the person requiring him to appear before a magistrates' court to answer to the complaint.

58-Money recoverable summarily as civil debt.

(1)A magistrates’ court shall have power to make an order on complaint for the payment of any money recoverable summarily as a civil debt.

(2)Any sum payment of which may be ordered by a magistrates’ court shall be recoverable summarily as a civil debt except—

(a)a sum recoverable on complaint for magistrates’ court maintenance order; or

(b)a sum that may be adjudged to be paid by a summary conviction or by an order enforceable as if it were a summary conviction.

 

This is why I don't personally believe there is a right of appeal to the Crown Court under Section 108, and from what I've read sub-section 108(3)(b) specifically excluded appeal against the award of costs.

Edited April 2, 2013 by revshelp

[postggj]

But that would be in direct contravention of established case law, statutory legislation has no power over case law (PRECEDENT) which is common law

 

Besides the above, their is established case law on the issue of costs/damages/restitution being proportionate to the offence

[revshelp]

I totally agree that case law sets a precedent which is binding on the lower courts and that theres established law on proportionality of costs, etc.

 

I personally see Statute as creating a framework and Case Law filling the gaps, with both complimenting each other.

 

With regards to costs the to principal pieces of legislation to refer to for Council Tax would be:

Section 34 The Council Tax (Administration and Enforcement) Regulations 1992

(5) If, after a summons has been issued in accordance with paragraph (2) but before the application is heard, there is paid or tendered to the authority an amount equal to the aggregate of—

 

(a)the sum specified in the summons as the sum outstanding or so much of it as remains outstanding (as the case may be); and

(b)a sum of an amount equal to the costs reasonably incurred by the authority in connection with the application up to the time of the payment or tender,

the authority shall accept the amount and the application shall not be proceeded with.

 

(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.

(8) Where the sum payable is paid after a liability order has been applied for under paragraph (2) but before it is made, the court shall nonetheless (if so requested by the billing authority) make the order in respect of a sum of an amount equal to the costs reasonably incurred by the authority in making the application.

 

Section 64 Magistrates' Court Act 1980

(1)On the hearing of a complaint, a magistrates’ court shall have power in its discretion to make such order as to costs—

(a)on making the order for which the complaint is made, to be paid by the defendant to the complainant;

(b)on dismissing the complaint, to be paid by the complainant to the defendant,as it thinks just and reasonable; but if the complaint is for an order for the periodical payment of money, or for the revocation, revival or variation of such an order, or for the enforcement of such an order, the court may, whatever adjudication it makes, order either party to pay the whole or any part of the other’s costs.

(2)The amount of any sum ordered to be paid under subsection (1) above shall be specified in the order, or order of dismissal, as the case may be.

(3)Subject to subsection (4) below, costs ordered to be paid under this section shall be enforceable as a civil debt.

(4)Any costs awarded on a complaint for a maintenance order, or for the enforcement, variation, revocation, discharge or revival of such an order, against the person liable to make payments under the order shall be enforceable as a sum ordered to be paid by a magistrates’ court maintenance order.

(5)The preceding provisions of this section shall have effect subject to any other Act enabling a magistrates’ court to order a successful party to pay the other party’s costs.

 

How a council should go about calculation the costs applied for isn't clearly set out, the basic cost of a summons and liability order I think is around £10-20. So it would all depend on what else is being included such as the council's court officer's time, but I imagine that most costs would be covered by general administration budget.

[outlawla]

There's a news article dealing with this subject today Court costs earn Councils millions:

 

 

"

....Another Council in the South of England reveals in a document reviewing court costs that where previously it was necessary to seek approval from the Court to ensure costs being levied were reasonable, this was no longer required and "

confirmed that it is for the Council to decide on an appropriate level

".

 

One authority in the North East admits court costs are determined in-house. A Freedom of Information request uncovered a letter sent to the Magistrates' court advising that the "

Council has taken the decision to increase the court costs which it charges to tax payers for the non payment of Council Tax

".

 

The same council revealed that it aimed to cover the entire budget for running its Council Tax department from court penalties, and with £0.88 million costs raised it had not made a bad attempt. It claimed its annual budget for all activity associated with recovery of Council Tax amounted to around £1.13 million, this compared with a figure of £1.04 million as the cost for council tax administration including staff costs, contact centre costs, enforcement, other running costs and central recharges.

 

The law doesn't allow for profits, only reasonable cost incurred for the administration involved, but councils increase costs as a "

deterrent

" element or to coerce payment. The same council documented that "

the extra cost is seen as a way of encouraging prompt payment

", and as a bonus would raise additional income of £38k a year. There is nothing in legislation to support an increase in costs on this basis.....

Edited April 2, 2013 by outlawla