Kofa, R (On the Application Of) v Oldham Metropolitan Bolton Council

Factual and Procedural Background

This case concerns a dispute over council tax under the Local Government Finance Act 1992 and the Council Tax (Administration and Enforcement) Regulations 1992. The Appellant has been in dispute with the Council since 2021 regarding unpaid council tax for a property located at Foxdenton Lane in Chadderton. Reminder Notices were issued in May 2021 and April 2022 demanding payment and warning of legal proceedings. The matter has progressed through three courts: initially the Magistrates' Court for liability orders in 2021 and 2022; subsequently the County Court for an interim and continuation of a charging order in 2023; and finally the High Court on a renewed application for judicial review in 2024. The High Court hearing was hybrid, with an extended hearing time to accommodate late receipt of the Appellant's skeleton argument and oral submissions.

Legal Issues Presented

1. Whether there is an arguable claim with a realistic prospect of success to challenge the County Court's charging order dated 10 October 2023.
2. Whether the statutory precondition requiring that liability orders have been "made" by the Magistrates' Court was satisfied.
3. Whether the Appellant has an alternative remedy available that bars judicial review, including appeal or application to set aside the charging order.
4. The constitutional validity of the Local Government Finance Act 1992 and associated regulations in imposing council tax liability absent individual consent.
5. The proper defendants to the judicial review claim, specifically whether the County Court should be joined as a defendant alongside the Council.

Arguments of the Parties

Appellant's Arguments

• The Appellant contends she never refused to pay council tax but insists on proof that liability orders were validly made by the Magistrates' Court.
• She argues no "court-issued" liability orders exist, as Magistrates' Courts have not issued such orders since 2003, citing statutory amendments, HMCTS guidance, and freedom of information responses indicating no physical liability orders are produced.
• Alternatively, she argues that at minimum, there must be an official entry in the court record evidencing the liability orders, which has not been produced despite repeated requests.
• She raises a constitutional argument that the 1992 Act and regulations cannot bind individuals absent their individual consent, relying on the common law principle from Ashby v White (1703) and asserting incompatibility with fundamental common law and rule of law principles.
• The Appellant objects to the Manchester County Court being joined as a defendant, naming only the Council as defendant.

Respondent's (Council's) Arguments

• The Council asserts the charging order is valid, supported by liability orders made by the Magistrates' Court, and challenges to these orders should have been raised in the appropriate forums.
• The Council relies on the statutory scheme which does not require a "court-issued" liability order in a prescribed form, and that liability orders are "made" by the Magistrates' Court as evidenced by court records and procedural mechanisms.
• They invoke a discretionary bar to judicial review based on the availability of alternative remedies, including appeal to a Circuit Judge and application to set aside or vary the charging order under regulation 51(4).
• The Council argues the constitutional challenge lacks merit as the legislation is validly enacted and consistent with constitutional principles and the rule of law.
• The Council acknowledges the County Court should be joined as defendant, as it made the charging order under challenge.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by confirming that the judicial review claim was in time and targeted the County Court's charging order dated 10 October 2023. The Court noted that although the Appellant named the Council as defendant, the County Court, which made the charging order, should properly be joined as defendant. However, this procedural issue would not by itself justify refusal of permission.

The Court addressed the Appellant's constitutional argument relying on Ashby v White, rejecting it as misconceived. The Court explained that primary legislation, including rating and taxing statutes, validly impose obligations consistent with constitutional principles and the rule of law.

The Court then analysed the statutory precondition under regulation 50(1) requiring that liability orders have been "made" by the Magistrates' Court before a charging order can be granted. The Appellant's two arguments—that a "court-issued" liability order must exist and that an official court record entry must be produced—were considered in light of statutory amendments and HMCTS guidance indicating no prescribed physical liability orders are produced.

The Court found no statutory requirement for a "court-issued" order in a prescribed form or for production of a court record entry to satisfy the precondition. Evidence before the county court, including Council-generated printouts and sworn statements, could suffice to satisfy the precondition on the balance of probabilities.

The Court emphasised that the Appellant had an appropriate alternative remedy to judicial review. She could have raised her objections at the County Court hearing before Judge Clarke, including by attending the hearing or appealing within 21 days. The Appellant's failure to attend the hearing or appeal was not justified by the short time limit, which could have been extended. Additionally, the Appellant retained the option to apply to set aside or vary the charging order under regulation 51(4), which remains available "at any time".

Given the availability of these alternative remedies, the Court invoked the discretionary bar to judicial review and refused permission. It held that it would be contrary to the interests of justice and public interest to allow the Appellant to reserve these points for judicial review rather than pursue them in the primary forum of the County Court.

The Court also observed that challenging whether liability orders were made could entail a costs risk if the Court is satisfied on evidence that liability orders exist. The Court noted that the Appellant had overlooked the regulation 51(4) remedy in her submissions.

Other arguments raised, including whether council tax applies to a private dwelling and procedural points about summonses, were dismissed as either time-barred or lacking an arguable basis.

On costs, the Court ordered the Appellant to pay the Council's costs for acknowledgment of service and summary grounds, reduced to £3,250, but made no order for costs of the hearing. The Court considered this appropriate given the default position in judicial review and the Council's limited additional costs.

The Court confirmed the Appellant's right to appeal the refusal of permission within seven days, extending the time limit due to the timing of the judgment.

Holding and Implications

The Court's final decision is as follows:

• Permission for judicial review is refused.
• The Appellant must pay the Council's costs of the acknowledgment of service and summary grounds, assessed at £3,250.
• No order is made as to costs of the hearing.
• The Appellant's appeal time limit is set as seven days from 9 April 2024, ending 16 April 2024, with time extended accordingly.

The direct effect is that the Appellant's challenge to the charging order is dismissed at the permission stage, and she remains liable under the statutory scheme. The Court did not set any new precedent but reaffirmed the availability of statutory alternative remedies and the application of the discretionary bar to judicial review in such circumstances.