Enforcement of costs awards made in Environmental Protection Act 1990 proceedings
- Details
Following a recent appeal in enforcement proceedings, Adam Rulewski and Natalie Pratt explain how awards made under section 82(12) of the Environmental Protection Act 1990 are enforced (or, more importantly, how they cannot be enforced).
The Mayor and Burgesses of the London Borough of Barking and Dagenham have recently been successful in an appeal relating to the enforcement of an award made under section 82(12) of the Environmental Protection Act 1990. During the course of the appeal, it became clear that the issues that arose, and the way in which they were determined, may be of wider interest to other local authorities, who have apparently been faced with similar attempts at enforcement.
The appeal arose in circumstances where an award of ‘costs’ under section 82(12) had been made by the magistrates’ court against Barking and Dagenham. The Claimant later applied without notice to enforce that award (with interest) in the county court, pursuant to section 64 of the Magistrates’ Courts Act 1980 and Civil Procedure Rule 70.5. The order was granted. Barking and Dagenham applied to set aside that order, and were successful in doing so, as the principal sum had been paid by the date of the set aside hearing and interest had not accrued (the power of the court to award interest on a judgment debt or order for costs under the Judgment Debts Act 1838 applied only to civil proceedings and, in the absence of any statute, regulation or order, the court could not award interest in a criminal matter, such as those under section 82). Accordingly, at the date of the set aside hearing, no sums were outstanding, and there was nothing to enforce.
At the set aside hearing, Barking and Dagenham also argued that the county court did not have jurisdiction to enforce the magistrates’ award in any event. The award had not been made under section 64 of the Magistrates’ Courts Act 1980 as alleged and, even if it had, section 64 was not an enactment that permitted enforcement in the county court (as required by CPR 70.5). Further, section 82(12) of the 1990 Act, under which the award had in fact been made, also did not permit enforcement in the county court.
The District Judge set aside the enforcement order, but declined to award Barking and Dagenham its costs of the set aside application. In making that order, the District Judge found that the enforcement application and order had been properly made, thereby accepting that the county court had jurisdiction to enforce such awards. Barking and Dagenham appealed.
As is always the way, several satellite points arose during the course of the appeal (both factual and legal); one of those may be of wider interest. The Circuit Judge dismissed unequivocally and without hesitation the Claimant’s earlier assertion that the magistrates’ award had been made under section 64, and not section 82(12) (and could do little else in the light of the clear authorities on the point). As such, it did not matter if section 64 could be a gateway to enforcement in the county court under CPR 70.5 but, even if the point had remained relevant, the Circuit Judge was also clear that section 64 was not an enactment that permitted enforcement under CPR 70.5 in any event. It followed that the Claimant’s application for enforcement had always been fundamentally flawed.
Turning then to section 82(12), the Circuit Judge was again unequivocal and unhesitating in finding that this provision was also not a gateway to enforcement in the county court under CPR 70.5. Therefore, even if the Claimant had correctly identified the power being exercised by the magistrates in the underlying proceedings, that still would not have saved the attempt at enforcement in the county court.
It followed that the application and order for enforcement had been made without jurisdiction, and the District Judge had erred in finding to the contrary when declining to award Barking and Dagenham its costs of the set aside application.
The importance of the appeal
The appeal is important as it disposes of the question of whether awards made by the magistrates in proceedings under section 82(12) of the Environmental Protection Act 1990 can be enforced in the county court, and does so with an unequivocal ‘no’.
Throughout the course of the appeal, it became apparent that Barking and Dagenham were not the only local authority who had been subjected to such attempts at enforcement of both principal sums and interest (which attempts had apparently been successful), but were seemingly the only one to have challenged the jurisdiction and propriety of this method of enforcement.
Natalie Pratt is a barrister at Radcliffe Chambers and appeared on behalf of the Mayor and Burgesses of the London Borough of Barking and Dagenham at the hearing of the set aside application and appeal, instructed by Adam Rulewski (Principal Lawyer – Housing, Civil and Prosecutions (Advocate)).
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