JUSTICES’ CLERKS’ SOCIETY

Procedure in Liability Order Applications

1. Background

Council has been contacted by NAME HMCS Enforcement Team concerning the way HMCS records the making of liability orders in Council Tax cases, due to challenges to the process in various quarters, including questions from MP’s

The concerns raised are:

a)     that the procedure is not transparent

b)     HMCS can not demonstrate that it is accurately recording the orders made

c)     whether the orders are incorrect form since they are not wet-ink signed

Council has considered the issues, and in light of the procedures operating in their courts is of the view that the following process is lawful and transparent.

The key objective of any procedure is that an accurate record is made of every decision of the court and retained. It is not possible for each individual complaint to be case entered, recorded and resulted, (save by a massive expansion in the number of legal advisers and court assistants). However the objective is achieved within existing resources by recording results against the council’s printout and retaining that as an annex to the register.

2 Procedure: issuing summons

1. The Council delivers one or two complaint lists to the court with their fee (or an understanding to pay later)
2. The list is reviewed by a legal adviser with delegated powers who issues the summonses
3. Either one copy of the list is returned endorsed to the Council and the court retains the other endorsed list, or the court retains a single endorsed list and the council is informed of the outcome (in reality it is extremely unlikely that any summons will not be issued so this does not need to be a detailed notification).

3 Procedure: Liability Order application

1. The legal adviser is given an up-to-date printout of the council’s application by a council representative. This will set out the name and details of each defendant and against that the order the council wishes the court to make
2. The court hears a bulk application for all non-attenders: the Council representatives proved the technical requirements and gives evidence that the sums levied have not been paid.
3. Any defendant attending or writing to the court is dealt with individually and orders made (or not made) in their case. Their attendance or otherwise is also recorded.
4. The legal adviser records the overall number of liability orders may, withdrawn, dismissed and adjourned. This may be recorded on a file cover or on the copy printout or both.
5. In addition to each case where the court does not make the order set out in the Council’s printout, the legal adviser notes the actual order made against the defendant’s name in the printout.
6. This means that there is a definitive record on the Council’s printout of all orders made.
7. The numbers of orders granted, withdrawn etc. recorded by the legal adviser, our input after court and appear in the Libra register.
8. Any adjourned the case is up individually case entered and resulted (to generate a door list and appear in the Libra diary).
9. The council printout, marked up by the legal adviser, is kept permanently, as an annex to the register.

4. Orders

The Council’s software generates the liability orders. These may be rubber-stamped or pre-printed with the Justices Clerks’ signature. There is no requirement for a wet-ink signature

This is for two reasons, set out in the Magistrates Courts Rules 1981. Firstly, the Rules only require signatures (of any sort) on forms prescribed by the Rules (Rule 109 (1)) and a liability order is not prescribed. Even if it were, rule 109 (3) states “where a signature is required on a form or warrant other than an arrest, remand or commitment warrant, an electronic signature incorporated into the document will satisfy this requirement”. Thus a pre-printed signature on the form will suffice.

5. Procedures prior to the hearing

The Court and its staff should not give the impression that the Council is in charge of the process.

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