Re-opening Civil Matters in the Magistrates Court – Traffic jams can leave you car-less or homeless

Sometimes cases are a bit like buses and the same unusual legal points appear in several cases in close succession; I have just had two cases where the Magistrates Court has been asked to review its own Civil Orders depriving individuals of, respectively, their car and their home.

The first case involved condemnation proceedings following the seizure of a motor car deemed to have a concealment (under sections 88(c) and 139(6) of the Customs and Excise Management Act 1979). The “defendant” (technically a “respondent”, but for clarity I will stick with “defendant”) had failed to attend the hearing of the matter as she had been delayed by traffic; she had contacted the court to explain that she was en route but the court did not get the message until after the order was made and the car was condemned (i.e. forfeit). The “defendant” then applied under section 142 of the Magistrates Courts Act 1980 to re-open the case and the matter was listed for her application (although she failed to attend that hearing too).

In the second case a local Council had applied for a Closure Order for a “crack house” (under section 80 of the Anti-Social Behaviour, Crime and Policing Act 2014). The matter was listed for hearing and the “defendant” attended late (again due to traffic problems) shortly after the Closure Order preventing her entering her house for three months had been made.

Both matters are civil proceedings so section 142 of the Magistrates Courts Act 1980, which deals with the Courts power to re-open criminal matters, does not apply and there is no equivalent statutory power which applies to civil cases, however the Magistrates Court does have the power to set aside its own decisions in appropriate cases, see for example, R (London Borough of Newham) v Stratford Magistrates’ Court [2008] EWHC 125 (Admin) and R (Mathialagan) v Southwark London Borough Council [2004] EWCA Civ 1689 (see also Stones Justices Manual at para 1.355).

The criteria to be satisfied are (a) there is a genuine and arguable dispute about the defendant’s liability, (b) there must have been a substantial procedural error, defect or mishap and (c) the order must be made promptly. The Southwark case also suggests that where, for instance, a party has failed to attend through no fault of its own (and, ironically, the example given is a traffic accident) it is potentially open to all parties to agree to re-open the matter.

In both cases the court declined to re-open the matter, leaving the “defendant” with the only alternatives of appealing the decision to the Crown Court or appealing by way of Case Stated to the High Court (or being deprived of their car/house).

The best advice is of course to ensure that you get to court in good time for any hearing but failing that an individual should ensure that they have strong evidence dealing with the three criteria above if they wish to ask the Magistrates Court to re-open the matter, especially as there is a limited time for any appeal to the Crown Court to be lodged and any delay may result in that option no longer being available.

In any event a “defendant” in such a situation should ensure they get professional legal advice as a matter of urgency; the barristers at Becket Chambers’ Civil Team are able to provide expert advice and guidance on a wide range of arears of law under the Direct Access scheme. Please contact the clerks for more information.