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Neutral Citation Number: [2016] EWHC 470 (Admin)

Case No: CO/5112/2015


IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice


Strand, London, WC2A 2LL

Date: 7 March 2016

Before :

MR ALEXANDER NISSEN QC
(sitting as a Deputy High Court Judge)
---------------------
Between :

EDWARD WILLIAMS Appellant


- and -
EAST NORTHAMPTONSHIRE DISTRICT
COUNCIL Respondent

---------------------
---------------------

Edward Williams, in person, the Appellant


Florence Iveson (instructed by LGSS Law Ltd) for the Respondent

Hearing date: 23 February 2016


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Approved Judgment
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

Mr Alexander Nissen QC :

Introduction

1. These proceedings are an appeal by way of Case Stated arising from a decision of the
Corby Magistrates Court on 13 July 2015 whereby the Appellant was ordered to meet
a council tax liability of £975.26 together with an order for costs of £75.

2. The Case Stated by the Corby Magistrates’ Court (“the Magistrates’ Court”) identifies
three questions for determination by this Court. These questions are in the following
terms:

(1) Were we correct to find that the application for the liability order was valid
when the summons included a request for costs?

(2) Were we correct in finding the Appellant liable on the basis of the evidence
we heard and the certificate produced by the council?

(3) Were we right to conclude the costs reasonably incurred in this case amounted
to £75?

Background

3. I will return to the detail of the Case Stated in due course. Before that, it is necessary
to refer (albeit briefly) to the procedural history of these proceedings. That is because
there were a number of matters which the Appellant (who acted in person at this
appeal) sought to raise, whether in his skeleton argument or orally at the hearing,
which were outside the scope of the issues raised by the Case Stated.

4. Originally the proceedings were issued against the Magistrates’ Court but, on 30
October 2015, this Court (Ouseley J) ordered the Appellant to amend and serve the
Appellant’s Notice on the present Respondent, namely the Council. This the
Appellant duly did.

5. On 23 November 2015 this Court (Ouseley J) gave directions on paper refusing the
application for an order that the Magistrates’ Court be made the sole respondent. The
Court also refused both a production order in respect of notes of evidence of the
hearing and a protective costs order. In the course of his reasoning, Ouseley J
observed that if the Appellant had wanted to challenge the facts as found in the Case
Stated he would have to allege that there was no evidence to support them or that
those findings of fact were irrational. The Case Stated did not do so and, I observe,
the Appellant never subsequently sought to amend his appeal in these proceedings in
order to do so. In rejecting the application for the notes of evidence, Ouseley J made
clear that the questions in the Case Stated do not raise for decision whether they had
evidence for their findings or that the findings were irrational.

6. Finally, on 25 January 2016, this Court (Ouseley J) refused the Appellant’s


application for permission to convert the existing Case Stated appeal into a judicial
review claim and refused the application for permission to apply for judicial review
on further grounds. He ordered that the only case to proceed should be the existing
appeal by way of Case Stated. In respect of the complaints which the Appellant
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

sought to raise about the calculation of the costs by the Magistrates Court, Ouseley J
said that if the Appellant wished to raise new points not presently included in the Case
Stated it would be for the Judge at that appeal to determine whether the Case Stated
should be amended.

7. At the hearing before me, the Appellant contended that the recitation of the evidence
in the Case Stated was materially inaccurate. He pointed to differences between the
draft of the Case Stated (on which he had the prior opportunity to comment) and the
final version of the Case Stated (which he did not see before its issue). He said that
there were deliberate changes to the record of the evidence pursuant to which the
Respondent had sought to improve its position in respect of this appeal. He accepted
that the law was such that recourse could not be had to the draft Case Stated unless
deceit or bad faith was alleged. At one stage he was minded to so allege but he did not
pursue that contention, merely submitting that the changes were “inexplicable”. I
concluded that this submission, namely that the Case Stated incorrectly recited the
evidence or facts, was outside the scope of the present appeal and, in the absence of
any notified application to amend, or broaden, the scope of matters for me to
determine, considered that I could not deal with it. The Appellant expressly said he
did not want to make such an application if it resulted in an adjournment of this
hearing (as such an application would be bound to have done) and, in those
circumstances, he did not press the matter further.

8. The Appellant’s skeleton argument also persisted with a contention which related to
the signature appearing on the summons. This was a matter which Ouseley J had
already ruled was outside the ambit of the Case Stated and in respect of which he also
refused permission for the point to be advanced by way of judicial review. I did not
permit the Appellant to pursue this point either.

9. Finally, the parties were also at odds over the scope of Question 3 in the Case Stated.
The Appellant considered that this question permitted him, on this appeal, to raise any
matter which went to a determination as to whether the costs reasonably incurred
amounted to £75. Thus, so he said, he could argue points such as the length of time it
took for a council employee to drive from the offices to court, even though no such
points were taken by him in the Magistrates’ Court and the Case Stated does not
address them either. In my judgment, Question 3 is concerned with the question of
whether, in law, the costs reasonably incurred in this case amounted to £75 having
regard to the three points which the Appellant did take before the Magistrates’ Court
and which are specifically addressed in the Case Stated. These are (a) the relevant
proportion of the ICT costs; (b) the Chip & Pin Costs; and (c) the pension deficit
costs.

The Regulations

10. The original proceedings concerned the Respondent’s application to the Magistrates’
Court for a liability order against the Appellant in respect of unpaid Council Tax.
Such proceedings are governed by the Council Tax (Administration and Enforcement)
Regulations 1992/613 (“the Regulations”). Regulation 34 materially provides as
follows:

“34.— Application for liability order


Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

(1) If an amount which has fallen due under paragraph (3) or


(4) of regulation 23 (including those paragraphs as applied as
mentioned in regulation 28A(2)) is wholly or partly unpaid, or
(in a case where a final notice is required under regulation 33)
the amount stated in the final notice is wholly or partly unpaid
at the expiry of the period of 7 days beginning with the day on
which the notice was issued, 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.

(3) Section 127(1) of the Magistrates' Courts Act 1980 does not
apply to such an application; but no application may be
instituted in respect of a sum after the period of six years
beginning with the day on which it became due under Part V.

(4) A warrant shall not be issued under section 55(2) of the


Magistrates' Courts Act 1980 in any proceedings under this
regulation.

(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.
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

(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.”

Question 1

“Were we correct to find that the application for the liability order was valid when the
summons included a request for costs?”

11. As provided for in Regulation 34(2) an application for a liability order is to be


instituted by making complaint to a justice of the peace requesting the issue of a
summons directed to the person to appear before the court.

12. In this case, the Respondent issued a complaint on or around 15 July 2015, in the
following material terms:

“The complaint of the Billing Authority BY L HOGSTON,


BENEFIT MANAGER of East Northamptonshire District
Council who states that the several persons given in the
Schedule below are persons properly liable to pay Council Tax
in the sum(s) opposite to their respective names and who have
not paid the sum(s) set out or any part thereof.”

13. The Schedule described in the complaint is a computer-generated print out and, on
this occasion, included the name of the Appellant. Against his name is described the
sum payable, namely £975.26, and, separately, costs of £75. The aggregate figure of
£1,050.26 is also given. The Appellant sought to take issue with the legal validity of
the complaint but that was outside the scope of this appeal.

14. Following the issue of the complaint, a summons was issued by the Magistrates’
Court. This is as contemplated by Regulation 34(2). In this case, and doubtless many
others like it, the summons contains the information which is necessary to inform the
recipient of the nature of the complaint. The summons is headed “Summons for Non-
Payment of Council Tax”. Below the Appellant’s name and address it is stated:

“Complaint this day has been made to me by the billing


authority for the District of East Northamptonshire, that you,
being liable to a Council Tax, have not paid the tax due below.
You are hereby summoned to appear before the Magistrates’
Court to show cause why you have not paid the said sum.”

15. Details of the forthcoming hearing were given. Then the summons records the
following:

“Council Tax £ 975.26

Summons Costs £ 75.00

TOTAL NOW DUE £1,050.26


Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

If the amount of the costs together with the Council Tax


claimed is paid to the East Northamptonshire Council…before
the date of the hearing all further proceedings will be stopped.”

16. The next page contains a statement as follows:

“STATEMENT OF COUNCIL TAX DUE UNDER THIS


SUMMONS

Address Period Amount

(The Appellant’s From 1 April 2015


address is given) to 31 March 2016 £975.26”

17. The Appellant’s submission is that the summons served on him is an abuse of process
by reason of its inclusion of an amount for costs within it. He contended that the
Regulations make no provision for the summons to include an amount by way of costs
and that costs could only become due once, and if, a liability order were made. It was
therefore wrong to imply on the face of the summons that the recipient was already
liable for such costs. He pointed out that the Regulations were only concerned with a
liability order, not costs, and that until a liability order had been made, the claim for
costs was not justiciable. He relied on R (on the application of Mohammed) v London
Borough of Southwark [2009] EWHC 311 (Admin) in which Geraldine Andrews QC
(as she then was) (sitting as a Judge of the High Court) made clear that a liability
order can only be sought under Regulation 34(1) for an amount which had fallen due
under Regulation 23(3) or (4). He also relied on R (on the application of Tull) v
Camberwell Green Magistrates Court [2004] EWHC 2780 (Admin) in which Mitting
J said that Regulation 34(2) “requires” an application for a liability order to be
instituted. The Appellant emphasised the mandatory nature of the requirement.

18. The Appellant also contended that the inclusion of any element of costs on the face of
the summons was an abuse because it was an unlawful demand for money which the
Respondent had no right to make at that time. He contended that the costs were not
due and owing at the date of the summons. He pointed out that the complaint on
which the summons was based made no reference to the costs of £75. He submitted
that it was an unfair manipulation of the Court process to include an amount for costs
on the face of the summons, particularly when the only real summons cost was £3. He
suggested that the recipient of a summons written in these terms would be misled into
believing that the costs of £75 were fixed and could not be debated or challenged.
That was, of course, not the case.

19. The Respondent did not disagree with the proposition that the Regulations were
directed to the non payment of the Council Tax and that the amount which should
appear on the summons should be the amount of the Council Tax which had not been
paid. However, the Respondent submitted that the Regulations also address the matter
of costs. Regulation 34(5) enables disposal of the application if the sum specified in
the summons is paid together with a sum in respect of costs of the application. The
summons is therefore a convenient document in which to notify a recipient of the
amount claimed for such costs. If the matter is not disposed of by prior payment, the
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

Magistrates’ Court is empowered by Regulation 35(7) to include within the order it


makes under Regulation 35(6) an amount in respect of costs reasonably incurred in
obtaining the order. Those would (or could) be greater than the costs of the
application.

20. The Respondent’s further submission was that the summons was not invalidated by
virtue of the inclusion of additional information relating to costs. The summons
contained what it needed to and there was no prohibition against including additional
information.

21. The Respondent also contended that the summons clearly differentiated between the
outstanding Council Tax on the one hand and the costs on the other. It was therefore
clear that the subject matter of the summons related to the former not the latter. It was
also clear that the claim for £75 was in respect of costs which had already been
incurred and did not therefore relate to such additional and future costs as may be
incurred by a contested hearing.

22. Finally, the Respondent contended that the demand for costs was not unlawful
because it was the sum which was (properly) claimable in the event that a liability
order was made, as it was in this case.

Decision

23. Primary legislation in respect of Council Tax is contained in paragraph 3 of Schedule


4 of the Local Government Finance Act 1992 which sets out that Regulations may
provide for liability orders and applicable costs. As I have said, the Regulations
themselves are the Council Tax (Administrative and Enforcement) Regulations 1992.

24. Regulation 23 is in the following terms:

“If, within the period of 7 days beginning with the day on


which a reminder notice is issued, the liable person fails to pay
any instalments which are or will become due before the expiry
of that period, the unpaid balance of the estimated amount (or,
as the case may be, the chargeable amount) shall become
payable by him at the expiry of a further period of 7 days
beginning with the day of the failure.”

25. It is quite clear that the “amount” referred to in Regulation 23 is the amount of
Council Tax which has fallen due. Costs are not mentioned in Regulation 23. It
therefore follows that the “amount” referred to in Regulation 34(1) is also the Council
Tax and not the costs reasonably incurred by the authority in connection with the
application for the liability order. Similarly, the “sum which is outstanding” in
Regulation 34(2) is limited to the Council Tax and has nothing whatever to do with
the costs.

26. Consistent with the Regulations, the complaint which was drawn up in this case is as
to the failure to pay Council Tax. Quite rightly, it makes no reference to the costs
since the non payment of such costs cannot be a basis for a complaint. According to
the schedule forming part of the complaint the sum payable is the sum in respect of
Council Tax, not the costs.
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

27. Article 98 of the Magistrates Court Rules deals with the information which should
appear on the face of a summons. It provides:

“A summons shall state shortly the matter of the information or


complaint and shall state the time and place at which the
defendant is required by the summons to appear”.

28. There can be no doubt that this summons complies with that rule in that it addresses
the subject matter of the complaint and provides the other details required in Article
98. The question for me is whether the summons is an abuse of process or otherwise
invalid because it also contains information about the level of costs claimed by the
Respondent. There is certainly nothing in the Magistrates Court Rules which
precludes additional information from appearing on the face of the summons. The
Regulations themselves are also silent on the question of whether costs may or may
not appear on the face of the summons. It is common ground that they do not
expressly preclude reference to costs on the face of the summons. I have come to the
clear conclusion that the summons is not an abuse of the process or otherwise invalid
by reason of the fact that it includes reference to a claim for costs. The heading of the
summons makes clear it seeks recovery of the Council Tax only. The complaint is
therefore only as to the non payment of the Council Tax. The tax due is the Council
Tax which is separately identified both on the first page and on the subsequent page.
It is abundantly clear that the subject matter of the summons is therefore the
recipient’s liability for the Council Tax. The obvious purpose of identifying the costs
is so as to inform the recipient of the amount of costs which are claimed by the
Respondent (and thus asserted by it to be due) which can be paid before the date of
the hearing. Since Regulation 34(5) expressly provides for the recipient to pay in
advance of the hearing both the sum specified in the summons as outstanding, namely
the Council Tax, and the costs reasonably incurred in connection with the application
it is obviously convenient to use the summons as a means by which to inform the
recipient of what is said by it to be that amount. It also serves to inform the recipient
of the amount which the Respondent would seek from the Court by way of costs if the
liability order was paid before the hearing but no costs were paid in respect of it: see
Regulation 35(8). Regulation 35(8) is important because it addresses a situation in
which a recipient does not dispute (or no longer disputes) the making of a liability
order but does wish to claim that he should not be liable for an order for costs, at least
in the amount claimed. The short paragraph at the foot of the first page of the
summons makes clear that the proceedings will only be stopped if the amount of the
costs claimed together with the Council Tax sought is paid. It follows that the
recipient is made aware that proceedings will continue if only the Council Tax is paid
or if only part of the costs claimed are paid. This is consistent with Regulation 35(8).

29. The Appellant disputed the Respondent’s submission that recipients would want to
know in advance the amount of costs that would be claimed against them. I do not
agree. In my view, that is precisely the sort of information which ought to be made
available.

30. I accept the Respondent’s submission that the summons is not invalidated by reason
of the inclusion of additional information beyond the subject matter of the complaint.
There is nothing on the face of the summons which suggests that a recipient cannot
challenge the amount of the Council Tax or the sum which is said to be due in respect
of costs. As I have said, the final paragraph is to the contrary. There is nothing
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

misleading in informing the recipient that £75 is said to be due in respect of costs of
the application. It is also clear from the wording at the foot of the summons that this is
a sum which is referable to the costs which are said to have already been incurred in
connection with the application and, for that reason, those costs did not include such
future costs as may be incurred if attendance at the hearing of the summons were
required.

31. I reject the Appellant’s submission that the claim for costs is not justiciable. No
reasonable recipient of the summons could have concluded that fixed costs of £75
would have to be paid if the matter was contested. The summons did not usurp the
authority of the Magistrates’ Court to determine that, in a particular case, the costs
reasonably incurred in obtaining the order were in a different amount. (In fact, in this
case, the Respondent chose not to claim any additional costs of the hearing and
confined itself to the costs of the application.)

32. I accept that the order for costs did not fall to be made until after the point in time
when the basis for the liability order had itself been established but that is no reason
for not telling the recipient in advance what minimum claim for costs would be
pursued by the Respondent if such a liability order were subsequently to be made. In
this case, as I would expect to be the case whenever it is contested, the level of costs
was the subject of evidence and submissions of the parties. The Court did not accede
to the claim for £75 without investigation.

33. The demand for costs was not unlawful. It was the amount which the Respondent
properly contended was due to it. Contrary to the Appellant’s submission, the lack of
explanation as to its breakdown is not such as to make it unlawful.

34. In those circumstances, I am satisfied that the Magistrates’ Court was correct to find
that the application for the liability order was valid when the summons included a
request for costs. The fact that the summons included an amount in respect of costs
did not render it an abuse of process.

35. The answer to Question 1 is “Yes”.

Question 2

“Were we correct in finding the Appellant liable on the basis of the evidence we heard
and the certificate produced by the Council”

36. The Appellant contends that the Magistrates’ Court should not have found him liable
for Council Tax because the only material which purported to contain evidence of his
liability to pay such Council Tax was a computer record which was inadmissible as
evidence at the hearing.

37. It must be said at once that this is a deeply unattractive submission. The Appellant did
not adduce any evidence of his own to suggest that he was not liable to pay Council
Tax in the sum claimed. Nor has he given the slightest hint to this Court that he has a
substantive defence to the tax claimed. Be that as it may, he submits that it was for the
Respondent to prove its case in support of the liability order and he neither admitted
nor denied a liability in respect of the Council Tax. On that basis, so he contends, it
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

makes no difference whether he would have disputed the content of a valid certificate
had one been produced.

38. Regulation 53(5) provides:

“In proceedings where the applicant authority or an authorised


person desires to give a statement in evidence in accordance
with paragraph (4), and the document containing that statement
is produced by a computer, a certificate (a) identifying the
document containing the statement and the computer by which
it was produced…shall be admissible as evidence of anything
which is stated in it to the best of the signatory’s information
and belief.”

39. At the hearing in the Magistrates’ Court, the Respondent relied on a statement
produced by a computer. However, the Appellant contends that the certificate did not
comply with sub-paragraph (a) of Regulation 53(5) with the consequence that the
evidence itself was not admissible.

40. The relevant document which the Respondent contended and the Magistrates’ Court
held was a certificate was in the following terms:

“I, Charlotte Forscutt, certify that this is an accurate extract of


information held within the computer operated by the council at
the time of printing this document which details names and
addresses of persons summonsed for non-payment of Council
Tax. I also certify that at all relevant times the computer system
functioned properly and that all information given herein is
correct to the best of my knowledge and belief.”

41. Above the statement just described the document contained the following
information:

“Program: ct6200a
East Northamptonshire District Coun
Version: 7100
Job Id: 349/5
Date: 06.08.2105
Time: 09:02
Liability Order in respect of Council Tax
Certificate of Computer Validity
System in Use: LINUX”

42. The Appellant submitted that the certificate relied on did not constitute a compliant
certificate within the meaning of the Regulation because it did not identify the
computer from which the document annexed to it had been produced. He submitted
that LINUX was a computer operating system, not a computer, and that none of the
other information contained on the face of the certificate identified the computer.
Whatever the codes and references in the top line meant, so he argued, they did not
identify the computer. He suggested that there was no good reason given as to why
the certificate did not identify the manufacturer, the model and serial number of the
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

computer. It was not sufficient for the certificate to describe the computer merely as
the one used by the Respondent to produce the document.

43. The Respondent disputed these contentions. It was submitted that the certificate did
identify the computer as the one operated by the Respondent at the time of printing
the document and that it operated a LINUX system. Reliance was also placed on the
information set out above the statement including the program, the version and the job
identification reference.

44. In addition, the Respondent also submitted that there was oral evidence before the
Magistrates’ Court that the Appellant was liable in respect of Council Tax. The effect
of this was that there was evidence other than that contained in the document
appended to the certificate upon which a liability order could have been founded.

45. At one point the Appellant sought to broaden his submission to the effect that the
certificate was also invalid because it only certified the fact that a summons had been
issued and not that the sum stated on the summons was in fact due. In the event, he
did not pursue that further submission.

Decision

46. I am satisfied that this certificate did contain sufficient information to comply with the
Regulation 53(5) in that it did adequately identify the computer by which the relevant
document had been produced. I accept the Respondent’s submission that a computer
can be identified in a series of different ways. No single or exclusive way of doing so
is prescribed in the Regulation. One way would be to refer to its make, model and
serial number. Another would be to describe its physical location or to provide some
other attribute by which it could readily be identified. The object of the Regulation is
to ensure that, if it ever became material to check the veracity or accuracy of the
document produced by the computer, the relevant computer could be identified.

47. In this case, had it been necessary to challenge the substantive content of the
document produced by the certificate, there was sufficient information on the face of
the certificate to identify the computer by which it had been produced. The computer
was the one operated by the Respondent at the time and used a LINUX system. It
would not be of any further assistance to the Appellant to know the make, model or
serial number if the computer itself was identifiable by other means.

48. I therefore conclude that the certificate complied with the Regulations and the
document produced by it was admissible as evidence against the Appellant.

49. In any event, the evidence against the Appellant was not confined to the documentary
material produced by the Respondent’s computer. There was oral evidence before the
Magistrates’ Court that the Appellant had defaulted on his Council Tax payments: see
paragraph 10(i) of the Case Stated. This records:

“Denise Beard, an authorised officer of the council, gave


evidence:

i) She said Mr Williams had defaulted on his council tax


payments.”
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

50. Whilst the Appellant disputed that this evidence was given (although I note that the
Appellant had never previously raised the accuracy of that record as an independent
complaint whether informally or otherwise) I am bound by the record contained in the
Case Stated.

51. The Appellant also contends that the evidence recorded at paragraph 10(i) of the Case
Stated is insufficient because it does not identify the amount of the Council Tax which
had been the subject of default or the period to which it related. In my view that is a
poor point. The payments to which the evidence must have related were obviously the
Council Tax payments the total of which was set out in the summons. There was no
suggestion from the Appellant before the Magistrates’ Court that the defaulting
payments were less than the total amount stated as being due on the summons.

52. The question for me to decide specifically embraces both the evidence “heard” and
that produced in documentary form by the computer and which was the subject of the
certificate relied on.

53. I conclude that the Magistrates’ Court was correct to find the Appellant liable for the
full amount of Council Tax in the sum claimed on the basis of the oral evidence which
it heard and the certificate produced. I note, as did the Magistrates’ Court, that the
Appellant never disputed that the amount contained in the Schedule attached to the
certificate was in fact due. Nor has he subsequently made any submission to this
Court that he would have been in a position to dispute it. There was therefore no
prejudice at all which resulted from the Respondent’s reliance on the certificate.

54. The answer to Question 2 is “Yes”.

Question 3

“Were we right to conclude the costs reasonably incurred in this case amounted to £75”

55. This ground is limited to a question or questions of law. I have concluded that this
ground does not give rise to an unrestricted entitlement on the Appellant’s part to
raise any point of law which could be said to arise from any aspect of the costs order.
Rather, I have concluded that the grounds are limited to those three which had
specifically been pursued before the Magistrates’ Court and upon which the Case
Stated had focussed: see paragraph 23 of the Appellant’s skeleton argument. The
Appellant submitted that he would have raised further points before the Magistrates’
Court but gave up doing so in the face of obvious reluctance by the Bench to accept
the three points he had already been making. However, if the Appellant had wanted to
pursue further points he should have done so notwithstanding those apparent
difficulties. It was his decision not to pursue more than the three points already
identified and he cannot raise the additional points now. In any event, there was
ultimately no application by the Appellant before me to amend the Case Stated to
raise new issues of law. The Appellant elected not to make such an application
because of the likely consequence that it would result in an adjournment of the appeal
which he was not prepared to countenance.

56. It therefore follows that there are three points that arise for consideration under this
heading, namely part of the ICT costs; the Chip & Pin costs included as part of the
ICT costs; and the pension deficit costs.
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

57. In connection with costs, both parties drew my attention to and placed reliance upon
the decision of Mrs Justice Andrews in R (on the application of the Reverend Paul
Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin). The case
concerned Regulation 34(7) of the Council Tax (Administration and Enforcement)
Regulations. The complaint in that case was as to the lack of information which was
said to be necessary for the Magistrates to address their minds to the question of
whether the essential causal connection between the costs claimed and the obtaining
of the order had been established by the Council. There was also a complaint that the
Magistrates had confused the reasonableness of the amount of the costs with the
question of whether the sum in respect of costs had been reasonably incurred.

58. Paragraphs 34 to 36 of the Judgment are in the following terms:

“34 As a matter of straightforward construction of Regulation


34(7) that means that the Magistrates must be satisfied:

i) that the local authority has actually incurred those costs;

ii) that the costs in question were incurred in obtaining the


liability order; and

iii) that it was reasonable for the local authority to incur them.

35 It is clear that there must be a sufficient link between the


costs in question and the process of obtaining the liability
order. It would obviously be impermissible (for example) to
include in the costs claimed any element referable to the costs
of executing the order after it was obtained, or to the overall
administration of council tax in the area concerned.

36 Since the question whether the costs claimed in this case


were “reasonably incurred in obtaining the liability order” is
not a matter I have to decide and I have not heard argument on
it, it seems to me that I should be circumspect in any
observations that I make which could have a bearing on that
issue should it arise on a future occasion. On the other hand,
there are no authorities that specifically address these
Regulations, and this is an opportunity for the Court to afford
some general guidance as to their interpretation and scope.”

59. At paragraph 42, Mrs Justice Andrews continued:

“42 It seems to me that in principle the intention in the


Regulations is to enable the local authority to recover the actual
cost to it of utilising the enforcement process under Regulation
34 , which is bound to include some administrative costs, as
well as any legal fees and out of pocket expenses, always
subject to the overarching proviso that the costs in question
were reasonably incurred. However, bearing in mind the court's
inability to carry out any independent assessment of the
reasonableness of the amount of those costs, the Regulations
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

should be construed in such a way as to ensure that the costs


recovered are only those which are genuinely attributable to the
enforcement process.”

60. Paragraphs 45 and 46 say:

“45 I bear in mind the practicalities of the enforcement system;


time in the Magistrates' court is limited and given the large
number of summonses issued, it would not be practical for the
local authority to carry out and provide a detailed calculation of
the actual costs incurred in each and every case (save possibly
where the actual costs are well in excess of the norm, for
example if the local authority has to instruct counsel to turn up
and argue specific points of law raised by the taxpayer in
defence).

46 In principle, therefore, provided that the right types of costs


and expenses are taken into account, and provided that due
consideration is given to the dangers of double-counting, or of
artificial inflation of costs, it may be a legitimate approach for a
local authority to calculate and aggregate the relevant costs it
has incurred in the previous year, and divide that up by the
previous (or anticipated) number of summonses over twelve
months so as to provide an average figure which could be
levied across the board in “standard” cases, but could be
amplified in circumstances where there was justification for
incurring additional legal and/or administrative costs. If that
approach is adopted, however, it is essential that the
Magistrates and their clerk are equipped with sufficient readily
available information to enable the Magistrates to check for
themselves without too much difficulty, and relatively swiftly,
that a legitimate approach has been taken, and to furnish a
respondent with that information on request.”

61. Paragraphs 50 to 52 continue:

“50 In principle there is no reason why a local authority should


not decide to limit the costs it claims to the costs in connection
with issuing the summons, although in practical terms that
approach provides no incentive to the respondent to pay up
after the summons is issued. What matters is that the costs that
it does decide to claim are properly referable to the
enforcement process.

51 If the necessary causal link is established to the satisfaction


of the court then the next question is whether the costs claimed
have been “reasonably” incurred. It may be that the method by
which the costs are calculated demonstrates this without the
need for further evidence; but there may be individual cases in
which it would be open to the respondent to argue that the costs
were not reasonably incurred, for example, if it was not
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

reasonable for the local authority to take steps to enforce


payment, or if the costs which were incurred were excessive –
e.g. if the local authority sent a QC along to argue a simple
point of law in the Magistrates' Court.

52 Establishing that the costs were reasonably incurred is not


the same thing as establishing that the costs were reasonable in
amount. Of course, the latter may have a bearing on the former,
since if the costs appear to be excessive, or disproportionate,
there may be legitimate grounds for querying whether it was
reasonable of the local authority to incur costs in that amount.
However so far as proportionality is concerned, one has to bear
in mind that in the present context where the recoverable sums
are relatively small (though by no means insignificant to many
of those who have to pay them) it is inherently likely that there
will be a disparity between those sums and the costs of
recovering them. On the other hand, the practice of processing
applications in bulk could drive the average costs of obtaining
liability orders down rather than up.”

62. At one point, despite having relied on it in his skeleton argument, the Appellant
appeared to be suggesting that he did not agree with some of the observations in this
decision and suggested it was, at least in part, not correct. Suffice it to say that I have
found the decision helpful and, so far as it bears on the matters which I have to
decide, I respectfully agree with it.

63. Unlike the position which had obtained in Nicolson, in the present case the
Respondent had sought to prepare a schedule of standardised costs of the type
encouraged by Andrews J at paragraph 46. Some of the supporting information was
provided to the Appellant in advance of the hearing before the Magistrates’ Court.
Other information was provided at the hearing. Although a point on lateness was
taken before the Magistrates’ Court, as paragraphs 6 and 9 of the Case Stated record,
the Appellant declined the offer of an adjournment.

64. The Magistrates’ Court made an order against the Appellant which included an
amount of £75 in respect of costs which it concluded had been reasonably incurred by
the Respondent in obtaining the liability order: see Regulation 34(7)(b).

65. They reached this conclusion based on the evidence provided by the Respondent. This
evidence is summarised at paragraphs 10(vi) to (xxi) of the Case Stated. The
document produced by the Respondent and relied upon by it contains an annual
summary of the costs said to be reasonably incurred by the Respondent in the period
before a Court hearing (£266,102) divided by the number of annual liability orders
made in the preceding year (3496) to produce a “standard” cost of £76.12 per case. If
the costs of attending a court hearing were included, this cost would rise to £78.42 per
case. In the event, the Respondent limited its claim to £75.

66. At one point during the hearing before me the Appellant sought to contend that the
approach adopted by the Respondent had not been in accordance with the decision in
paragraph 46 of Nicolson because the latter required the total annual cost to be
divided by the number of summonses in the previous year rather than the number of
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

liability orders made in the previous year. Since the liability orders made would be
fewer than the number of summonses issued, the cost per case would have been
increased by the Respondent’s approach. Again, as the Appellant accepted, this was
not an argument which had been raised in the Magistrates’ Court. The Respondent
opposed the introduction of this point on the grounds that it would require an
investigation into the difference between the two outcomes. There was no application
to amend the Case Stated to raise the new point and the argument was not further
pursued. Had it been, on the basis of the submissions I did hear, I would have been
inclined to accept the Respondent’s submission that paragraph 46 of Nicolson was to
be seen as guidance, rather than an absolute rule, and that an approach based on
liability orders fell within the ambit of such guidance in any event.

The IT or ICT Costs

67. Included within the total amount of £266,102 is an amount of £11,397 in respect of
Information Technology. According to the evidence before the Magistrates’ Court,
this is a figure derived from a percentage of the total cost of software licences and
maintenance. The enforcement package, as it is described, is set at 15% of the total
cost of £75,976.77. In the supporting material, entitled “Academy Annual
Maintenance Charges” a detailed breakdown is given of the total cost of £75,976.77.
This is the total of the actual costs for 2015. The information on this sheet largely
reflects, but is not identical to, the material which was provided to the Appellant in
advance of the hearing. The sums included in the total are the same. To the extent that
there are differences, nothing turns on it because the Appellant was provided with a
copy of the new details and declined the opportunity to have an adjournment to
consider them.

68. The present appeal turns on the allocation of the total IT costs which is attributed by
the Respondent to the costs of obtaining the liability orders. In the detailed document,
the allocation is described in this way:

“Guidance from Capita usergroups had advised that


approximately 15% to 20% is attributed to Recovery work.”

69. Specific evidence in respect of the allocation of 15% is recorded in paragraph 11(ii) of
the Case Stated. It says:

“When she was asked by the appellant how the council had
concluded that 15% of the annual ICT costs should be
attributed to the costs in these cases she said these were costs
advised to her by the ICT department and that the percentage
was a figure discussed at Capita User Group meetings as the
proportion of the costs that were attributable to the enforcement
process relating to the obtaining of liability orders.”

70. During submissions the Appellant accepted that paragraph 11(ii) of the Case Stated
was broadly consistent with the note at the foot of the detailed document.
Nonetheless, in this appeal, the Appellant objected to this percentage allocation. He
criticised the evidence as hearsay and said it was insufficiently clear as to the basis
upon which the percentage had been derived. It was not clear who attended the Capita
User Group or on what basis the figure had been reached. He pointed out that Capita
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

is a professional services company and that the assessment was not produced by the
Respondent. He submitted that “recovery work” was broader than and different from
“costs reasonably incurred by the applicant in obtaining the order” which was the
applicable test. Recovery was applicable to all Council Tax payers and not merely
those who had failed to pay. He points out that he sought disclosure of the guidance
referred to in the document and was told that the Respondent held no such guidance.
(From this I interpose to say that I infer that the guidance was verbal.) All in all, the
Appellant contended that in law it was wrong to have included an assessment of 15%
of the total IT costs as attributable to the IT costs reasonably incurred in obtaining the
order. On his case, there was simply no adequate evidence to support it. His ultimate
submission was that no rational court would have regarded the evidence adduced in
respect of “guidance” as acceptable. He did not propose an alternative percentage or
figure.

71. The Respondent’s over-arching submission (applicable to all three grounds of


challenge under this ground of appeal) was that it had sought to comply with the
guidance in Nicolson and it was inappropriate for this Court to pick over the minutiae
of the itemised costs. The Respondent had detailed the costs and had sought, in a
reasonable and proportionate way, to allocate costs to those incurred in obtaining the
order. This was, ultimately, a civil claim rather than a criminal trial. Accordingly, a
degree of latitude should be shown to the nature of the evidence given. The
Respondent contends that the Magistrates’ Court was correct to make an order of £75
in this case, including the applicable assessment in respect of the IT costs.

72. In respect of the basis for the 15% assessment, the Respondent submitted that it was
sensible for the Respondent to have sought advice from the IT providers. It was
pointed out that no-one was suggesting that no part of the IT costs were attributable to
enforcement so at least some allocation had to be made. The entity best placed to
make that assessment was the provider. As regards the reference to “recovery work”,
this was merely a loose term but the clear evidential basis for the entitlement to
include the sum of £11,397 within the gross amount is contained in paragraph 11(ii)
of the Case Stated. The Respondent also took a further objection that the point about
“recovery” had not previously been foreshadowed such that, if I was to find it was
well made, I should preclude the Appellant from relying on it.

Decision

73. I accept the Respondent’s submissions given above. In my view the evidence as to the
allocation of the total IT costs was a proportionate approach for the Respondent to
have adopted in a case such as this. Whilst it may be the case that the Respondent’s
witness was, herself, unable to explain the basis for the 15% within her own
knowledge she was at least able to identify its source, namely a discussion at the
Capita User Group. Since Capita was the provider it was best placed to make the
assessment. It is also material to note that the percentage adopted for the application
was at the lowest end of the range of 15 to 20% which was identified by Capita.
Finally, I agree that nothing of substance turns on the word “recovery”. The evidence
relied on is that described in the Case Stated where the correct test is identified. In any
event, the note in the supporting document does not indicate that the wrong question
was asked of Capita. On the contrary, it seems clear to me that the Respondent had the
approach in Nicolson well in mind when seeking the information from Capita.
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

74. For those reasons I see no error of principle in the inclusion of 15% of £75,976.77,
namely £11,397, within the overall total of £266,102. The assessment of costs in the
sum of £75 was not therefore impugned on this account.

75. Although I do not base my decision on it, I observe that, even if the whole amount of
£11,397 were excluded from the total it would make only a minor difference to the
individual cost that could have been claimed against the Appellant. The costs for
those cases where no hearing was required would become £72.86 and for those where
a hearing was required would become £75.16. The latter is still greater than the costs
order made in this case. That would have been relevant to the question of what the
applicable remedy would have been had I otherwise acceded to the Appellant’s
argument.

Chip & Pin Costs

76. Included within the total IT costs of £75,976.77 are some amounts attributed to Chip
& Pin devices. There are five line items in respect of Chip & Pin devices which total
some £881.05. The evidence before the Magistrates’ Court was that these devices are
used by the Respondent to take payment as part of the enforcement process. Because
of the way in which the table of IT costs was prepared and presented, only 15% of
that cost was actually attributed to the use of such devices and that element (namely
15% of £881.05) formed part of the £11,397 described above.

77. The Appellant submitted that it was wrong in principle to include any amount for the
cost of these devices. His submission was, and indeed it was common ground, that no
Chip & Pin device was used in respect of the enforcement claim against him
personally. He therefore submitted that no such costs could be included since they had
not been incurred at all in respect of obtaining a liability order against him. Yet
further, the Appellant submitted that a Chip & Pin device should never be needed to
obtain a liability order: it would only be needed to execute payment of a liability order
once it had been obtained. This came after the process encompassed by the costs
regime had expired.

78. The Respondent relied on the general points described above. But in addition, the
Respondent submitted that it was both reasonable and in keeping with the guidance in
Nicolson to adopt standardised types of cost and then take an average cost per head.
That approach inevitably meant that it was not appropriate to consider the detail of
those costs in order to see whether they had actually been incurred against a particular
respondent to the claim. As regards the submission that the devices were not used to
secure the liability order, it was contended that the devices were also used to take
payment of those against whom a liability order had been sought but who had made
payment before the hearing: see Regulation 34(5).

79. I accept the Respondent’s submissions. The approach contemplated in paragraph 46


of Nicolson is one which takes and aggregates the relevant types of costs incurred in
the previous year and divides it up by the number of previous or anticipated number
of summonses and to provide an average figure. In my judgment, it is an inevitable
consequence of that approach that some detailed types of cost will not necessarily
have actually been incurred in the case of a specific defaulter, A, but will have been
incurred in the case of other defaulters B, C and D. Provided that the “right types of
costs and expenses are taken into account” (see paragraph 46 of Nicolson) that is
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

sufficient. It follows that, if the inclusion of a Chip & Pin device is a reasonable
category, or type, of cost to include in the aggregate, it is no answer in an individual
case to show that such costs were not incurred in the specific case. Of course, the
position would be otherwise if the Respondent had sought to prove its costs
specifically by reference to a record of the costs incurred against the Appellant
personally. But that is not this case. In this case the Respondent sought to demonstrate
the level of costs reasonably incurred in obtaining the liability order against the
Appellant by reference to the average cost of doing so against other defaulters. In my
view that is consistent with the approach suggested in paragraph 46 of Nicolson.

80. I also agree with the Respondent that there is nothing objectionable about including a
category of cost for Chip & Pin devices since they form an essential part of the
payment collection system where someone wants to pay in the period between the
issue of a summons and a hearing in respect of it. It follows that such costs are part of
the overall cost of obtaining a liability order.

81. For those reasons I see no error of principle in the inclusion of £881.05 within the
total for IT costs of £75,976.77, of which 15% forms part of the overall total of
£266,102. The assessment of costs in the sum of £75 was not therefore impugned on
this account.

82. Although I do not base my decision on it, I observe that, even if the whole amount of
£881.05 were excluded from the total of £75,976.77 from which 15% is derived it
would make only a very minor difference to the individual cost that could have been
claimed against the Appellant. Indeed, it would not reduce the amount of costs below
the level which the Appellant was ordered to pay. That would have been relevant to
the question of what the applicable remedy would have been had I otherwise acceded
to the Appellant’s argument.

Pension deficit costs

83. The third item in respect of which objection was taken by the Appellant concerns the
inclusion of £62,830 in respect of “pension – deficit funding”. This line item formed
part of a total overhead cost of £598,100. This overhead cost was used in the
calculation of an “on cost” factor of 2.41 which was applied to hourly rates of relevant
staff and management undertaking activities in connection with the enforcement of
liability orders. The only issue raised in the appeal concerns the legitimacy of
including an item in respect of pension deficit funding within the overhead cost which
formed the basis of the factor of 2.41. There was no challenge to the basic hourly rates
computed from salaries. Within the appeal, there was also no challenge to the hours
attributed to the relevant activities. In his skeleton argument, the Appellant sought to
broaden his complain to mount an attack on the hours spent “liaising with customers”,
“answering complaints” and “checking legislation”. But these were not the subject of
challenge in the Magistrates’ Court and are not matters addressed in the Case Stated.
It is too late to refer to them now and, as I have said, there was no application to
amend. The same applies to the complaint about travel times from the Respondent’s
offices to the Court.

84. The Appellant contended that it was wrong in principle to include as part of the
overhead an element in respect of funding the pension deficit. He submitted that the
Regulations are not there to raise revenue. The function of the Regulations is to
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

permit the Respondent to recover the costs reasonably incurred by it in respect of


enforcement action. On the Appellant’s submission the calculation of overhead should
not have included an element for the funding of a pension deficit. He pointed out that
such a deficit could only have been incurred as a result of mismanagement by the
Respondent of its pension funds and there was no reason why members of the public,
even those against whom a liability order had been made, should be ordered to make
good at least a contribution towards that deficit. In short, he submitted that the
pension deficit costs were not reasonably incurred.

85. According to the evidence set out in the Case Stated, the Respondent had distributed
the entire pension deficit cost between its different departments and the
apportionment had been made at the request of the Audit Commission: see paragraph
11(iii) of the Case Stated. In light of the evidence the Magistrates’ Court concluded
that the pension deficit costs were reasonably included in the calculation being a
reasonable proportion of those costs associated with the enforcement activity: see
paragraph 18(v) of the Case Stated. (As explained earlier, I rejected the Appellant’s
attempts to challenge the Case Stated in this respect.)

86. The Respondent’s submission was that the pension deficit was an expense associated
with the general running of the Respondent’s offices. A full explanation for it had
been given to the Magistrates’ Court and there was nothing wrong in principle with
including it as part of the overhead cost of running the department. If relevant, the
Respondent submitted that there was no evidence that it had mismanaged its pension
funding. By including this item in the overhead, the Respondent had taken a
reasonable approach open to it in light of Nicolson. Such a cost is not plainly wrong
or outside the scope of the cost of running an organisation such as the Respondent.
The position would be otherwise if the overhead included a line item for something
inappropriate such as a holiday fund.

Decision

87. I accept the Respondent’s submissions. In my judgment, there was nothing wrong in
principle with the inclusion of an amount for pension deficit costs in light of the
evidence which was given and the facts found. Pension costs form part of the general
expenditure reasonably and properly incurred by the Respondent in carrying out its
general functions in just the same way as salaries, national insurance contributions
and other costs traditionally associated with the employment of staff. The cost to the
Respondent of funding a pension deficit should be seen in exactly the same way. The
existence of the deficit does not mean that the Respondent had mismanaged the
pension fund or had, in any way, acted unreasonably. It merely meant that the pension
fund had fallen short. The evidence was that these deficit costs had been distributed
amongst the relevant departments and, as a result, a proportion fell on the department
responsible for the enforcement of liability orders. As a result it was right that the
factor of 2.41 should have been calculated after taking account of such costs.

88. For those reasons I see no error of principle in the inclusion of £62,830 within the
total overhead cost of £598,100 on which the factor of 2.41 was based. This factor
was properly deployed in the hourly rates included within the costs claimed. Those
hours are directly referable to staff engaged in obtaining liability orders. The
assessment of costs in the sum of £75 was not therefore impugned on this account.
Judgment Approved by the court for handing down. Williams v East Northamptonshire District Council

89. Although I do not base my decision on it, I observe that, even if the whole amount of
the sum allowed in respect of pension deficit were excluded from the calculation it
would make only a minor difference to the individual cost that could have been
claimed against the Appellant. The costs for those cases where no hearing was
required would become £71.93 and for those where a hearing was required would
become £74.09. This is, to a de minimis extent, less than the Appellant was ordered to
pay. That would have been relevant to the question of what the applicable remedy
would have been had I otherwise acceded to the Appellant’s argument.

90. It follows that, having dismissed each of the three individual objections raised by the
Appellant, I have concluded that the Magistrates’ Court was correct in law to find the
costs reasonably incurred in obtaining the liability order against the Appellant
amounted to £75.

91. The answer to Question 3 is “Yes”.

Remedies

92. Pursuant to section 28A(3) of the Senior Courts Act 1981, I may reverse, affirm or
amend the determination in respect of which the case has been stated. I have decided
that the answers to the three questions are “Yes” in each case and, as such, I affirm
the determination in those respects.

93. Accordingly I dismiss the Appellant’s appeal by way of Case Stated.

94. I will hear the parties in respect of any application for costs and summary assessment
thereof. The Appellant indicated that he would prefer to deal with costs at an oral
hearing. Accordingly the matter will be listed for a one-hour hearing on the occasion
on which judgment is handed down. No later than 4pm on Thursday 3 March 2016,
such objections as may be taken on the summary assessment of costs should be
notified in writing to the Court and the other party.

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