MSA v London Borough of Croydon [2009] EWHC 2474 (Admin)

A technical point on judicial review cases here, but as it is something I’ve run up against in the past, I think it is interesting.

Collins J considers whether a penal notice should be attached to an order of the Administrative Court made against a public body. This would usually be made out against a named senior officer of the authority and enable an application for committal of the officer on breach of the order. They are, on County Court orders in, for instance enforcement of an order in a disrepair case, remarkably effective in my limited experience. However, Collins J takes the view that it has not been the practice of the Administrate Court to add a penal notice to its orders – and certainly on a recent occasion where I requested one be added – which is an administrative rather than judicial act – I was met with bewildered incomprehension.

The question was whether the Administrative Court should vary its custom, there being no question that the Court had the power to make such an order. Collins J cites Lord Woolf in M v Home Office [1994] 1 A.C. 377

While contempt proceedings … against a government department or a minister in an official capacity would not be either personal or punitive (it would clearly not be appropriate to fine or sequestrate the assets of the Crown or a government department or an officer of the Crown acting in his official capacity), this does not mean that a finding of contempt against a government department or minister would be pointless. The very fact of making such a finding would vindicate the requirements of justice. In addition an order for costs could be made to underline the significance of the contempt.

and Mundy J in R(Bempoa) v London Borough of Southwark [2002] EWHC 153 Admin:

the public interest … is better served by the public being told exactly what Southwark – what its representatives – have done to Ms Bempoa, in the public seeing just how badly its representatives have treated Ms Bempoa, than in my imposing a financial penalty which in the final analysis will punish not those responsible for Ms Bempoa’s treatment but rather those whose servants they are.

Collins J concurs. A finding of contempt on breach of an order should be sufficient, with a possible indemnity costs award and further mandatory order.

Adverse findings coupled with what would probably be an order to pay indemnity costs should suffice since it is to be expected that a public body would not deliberately flout an order of the court. Were that to happen, the contemnor could be brought before the court and, were he to threaten to persist in his refusal, an order could be made which made it clear that if he did he would be liable to imprisonment or a fine.

So, at least against public bodies, the Admin Court will not add penal notices to interim or final orders, apparently on the basis that the embarrassment of public exposure and the court’s condemnation ought to be enough to ensure compliance.

I have to say, with the greatest respect, that I am not so sure about that in practice. From the County Court, we know that, where compliance with an order is required to be urgent and effective, a penal notice against a named senior manager can have a remarkable effect where at other times the authority might seek try to explain away its breach on an application for a finding of contempt. I suspect that some local authorities are remarkably capable of not being withered by judicial scorn, and it is not as if local papers even report Admin Court judgments very often.