Shocking Electricity Costs – “man bites dog”

The Facts

My client received an electricity bill in the sum of about £13,000 in respect of a tenanted, residential premises within a farm complex he owned; he disputed liability as the tenants of the premises were contractually liable for the costs of their services and the premises were separately metered (and, in any event the bill seemed unrealistically high for the one year period involved) and refused to pay. His electricity supplier (“the Supplier”) wrote to him indicating that they had applied to the Magistrates Court and would seek a warrant allowing them to enter the premises and disconnect the supply. At that hearing it was indicated that there was legitimate dispute about the bill therefore the warrant was not justified, and the Supplier’s representative agreed to withdraw the application and to attend the premises to inspect the metering arrangements on site, which he did, but it appears no one acted upon the report from that site visit.

Three months later my client received another letter indicating that the Supplier would be seeking a warrant again; I was instructed and attended the hearing, explained the history of the case and the (same) representative of the Supplier withdrew the application a second time. I indicated, on behalf of my client, that we were content to agree to the withdrawal but that the Supplier needed to resolve the matter and to ensure that no further applications for warrants would be made or my client would seek his costs. A meeting was arranged between my instructing solicitor and a representative of the Supplier; various concerns were identified and both sides agreed that further enquiries were necessary and that no further warrants should be sought until the issues had been resolved.

Five days after the meeting (!), the Supplier’s computer generated a further application for a warrant, and my client was, once again, invited to attend the Magistrates Court when the application would be heard and I was instructed to attend on his behalf. An hour before the time listed for the hearing the Supplier notified my solicitor that they would not be seeking a warrant and their application would be withdrawn; we responded (on behalf of our client) indicating that we would be at court and would be seeking our costs.

The Law

Section 64 of the Magistrates Court Act 1980 provides that

(1) On the hearing of a complaint, a magistrates court shall have the power to make such order as to costs

(a) on making the order for which the complaint is made, to be paid by the defendant to the complainant;

(b) on dismissing the complaint, to be paid by the complainant to the defendant,

as it thinks just and reasonable.

In the case of R (on the application of Khan) v Feltham Magistrates Court [2017] EWHC 3042 (Admin), dealing with costs in an application to set aside a Council Tax liability order, Cockerill J stated:

35…. I am satisfied that the Magistrates had jurisdiction to award costs. I consider that they had jurisdiction and this could be either because, as they found, the application was a complaint itself or because the application to set aside was effectively part of the complaint which led to the original liability orders, or both. In this connection I do not see why the set aside application could not be counted as a complaint on both heads. I accept the submission that there is no necessary disjunction.

36.The word “complaint” is not defined. In looking at this point I have to construe it against its background and the statutory intention so far as that can be inferred. I note that if the Magistrates did not have jurisdiction to make a costs order in such a case there would potentially be a lacuna which it would be surprising if it were to have been intended. Looking at the matters which have been put before me it is correct the word “complaint” is susceptible of a broad construction. So far as this context is concerned, as I read it, s. 64 is the broad costs discretion applicable in civil proceedings under Part 2 of the Act which covers Civil proceedings in Magistrates’ Courts. As such an application to set aside within that Part might naturally be regarded as a complaint in itself for the purposes of that section, it being the case that there is no particular formality required for a commencement of a complaint.

The Hearing

Before the court, the (same) representative of the Supplier indicated that he would not be seeking a warrant and I asked for my client’s costs (i.e. my fee and my client’s travel costs) on the basis that the application amounted to a complaint (as per Khan) and therefore section 64 of the Magistrates Court Act 1980 gives the Court the power to award costs.

I also indicated that if the Supplier had acted in good faith in making their application they could, potentially, have relied upon the case of Perinpanathan and avoided liability for costs (see Samuel Davis’ excellent article)  but, given the history of the case, they had evidently not done so.

The court agreed with our submissions and ordered the Supplier to make full payment of my client’s costs immediately.

My client is currently considering whether to issue a claim for harassment against the Supplier.

Obviously, the Magistrates’ decision was based on the particular (and rather unusual) facts of this case but it seems that Khan has opened the possibility of costs orders being made in a variety of proceedings where the magistrates court is acting in its civil jurisdiction and proceedings are dismissed (or dismissed on withdrawal) and the reference to a “complaint” in section 64 will be given a broad interpretation.