Law Report: Court would not enforce claim for restitution

On an application for judicial review the court would not make an order to enforce a civil claim for restitution to a third party of money paid in consequence of an unlawful committal order.

Regina v Barnet Magistrates' Court, ex parte Cantor; Queen's Bench Divisional Court (Lord Justice Pill and Mr Justice Garland) 18 December 1997

The Divisional Court quashed a suspended committal order whereby the applicant was committed to prison for nine months for failure to pay an order for pounds 30,000 costs, and granted a declaration that the sum of pounds 30,000 had been transferred to the bank account of the clerk to the Barnet justices on the instructions of the applicant's mother in consequence of an unlawful committal order.

In 1992 the applicant had been convicted of offences of dishonesty, and had been ordered to pay pounds 30,000 towards the costs of the prosecution. He had failed to make any payment under the costs order, and in September 1996 appeared before the Barnet Magistrates' Court for an enquiry as to his means. There was evidence before the justices that the applicant received pounds 400 a month from the trustees of two discretionary trusts.

The justices found that the applicant had culpably neglected to pay the costs order, and made a suspended committal order of nine months' imprisonment to take effect if the whole amount was not paid by 9 December 1996. On 9 December the justices issued the committal warrant.

The applicant's mother had deposited pounds 30,000 of her own money with the applicant's solicitors with instructions that it should only be paid over to the court if it became absolutely necessary, and in particular to avoid her son's going to prison. The money was telegraphically transferred to the magistrates' court and the applicant, who had been taken to the cells, was released. He sought orders of certiorari to quash the committal order and mandamus directing the clerk to the justices to repay pounds 30,000 plus interest to his mother.

Peter McGrail (Rowe and Cohen, Manchester) for the applicant; Kate Astaniotis (Crown Prosecution Service) for the respondent.

Mr Justice Garland said that the justices could only have concluded that the applicant would be able to pay pounds 30,000 by resorting to the discretionary trusts, and that was an error. They should in the circumstances only have taken account of such sums as he had actually received. On that ground alone the committal order should never have been made.

There was authority for the proposition that it was unlawful for justices to impose a fine which a defendant had no realistic prospect of paying, a fortiori if it was imposed in the hope or expectation that it would be paid by a third party. There was no distinction to be drawn between a fine and an order for costs. The order committing the applicant to prison had been made on an incorrect basis in law; the sum to be paid was plainly beyond the applicant's means; and if there was an expectation that it would be paid by a third party, that too was unlawful. For those reasons the order would be quashed.

With regard to the repayment of the pounds 30,000, there was no authority for the use of mandamus to enforce a civil duty to make restitution to a third party, even though the duty arose from the quashing of an order. Money paid by mistake as a result of an actual or perceived threat fell to be recovered in accordance with the principles of restitution or quasi contract. Unfortunately, the law lacked clarity and although a claim by the applicant's mother to recover her money was meritorious, it would be both novel and not free from difficulty.

Even if the court felt able to do so it should not give effect to a private claim for restitution, however meritorious, when the cause of action was other than obvious and certain. It would, however, grant a declaration that the money had been transferred in consequence of an unlawful order.

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