England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Court s of Justice Strand London WC2A 2LL
		13 March 2003

The Deputy Judge

Introduction

1. This is an appeal against a decision of the Bedfordshire Valuation Tribunal ("the Tribunal") following an appeal against the determination that Mr Bennett was liable to pay Council Tax in respect of a property known as Woodville Cottage, Beck Green, Distington in Cumbria ("the property") under Section 6 of the Local Government Finance Act 1992 ("the Act") by reason of the fact that he was a "resident" of the property within the meaning of Section 6(2)(a) of the 1992 Act. Regulation 32 of the Valuation and Community Charge Tribunals Regulations 1989 provides for a right of appeal to the High Court on a question of law arising out of a decision or order which is given or made by a Tribunal on an appeal.
2. The appeal hearing commenced on 12 December 2002 when Ms. Patry for the Appellant presented and completed her opening submissions. The appeal was then adjourned part heard to a date to be fixed. On 4 March 2003 when the hearing resumed the Appellant appeared unrepresented. He made further submissions and then Mr Oldham, on behalf of the Respondent, made his submissions. The Appellant replied to those submissions. In reaching my decision I have taken into account the submissions of Ms. Patry, the Appellant and Mr Oldham together with their Skeleton Arguments, the material documentation and the relevant authorities to which I have been referred.
3. In summary the case for the Appellant is that he bought the property for investment purposes. He did not live there. The property was rented out to tenants. He lived in another property at 24 Moor Lane, Bedford and that was his sole or main residence. The fact that he is not liable to pay Council Tax on that other property is irrelevant. The property is not his sole or main residence. He is not responsible for paying the Council Tax on the property. The responsibility is that of the tenants.

The Statutory Framework

4. From 1 April 1993 Council Tax is payable on all dwellings except those that are classed as exempt dwellings. From the evidence presented, the Tribunal accepted (and it is not disputed) that the property was a chargeable dwelling within the meaning of the Act. The Respondent is the "billing authority" for the purposes of levying and collecting the Council Tax payable in respect of the property.
5. The relevant statutory provisions are contained in Part I of the Act.

"6. Persons liable to pay Council Tax

(1) The person who is liable to pay Council Tax in respect of any chargeable dwelling and any day is the person who falls within the first paragraph of sub-section (2) below to apply, taking paragraph (a) of that sub-section first, paragraph (b) next, and so on.

(2) A person falls within this sub-section in relation to any chargeable dwelling and any day if, on that day -

(a) he is a resident of the dwelling and has a freehold interest in the whole or any part of it;

(b) he is such a resident and has a leasehold interest in the whole or any part of the dwelling which is not inferior to another such interest held by another such resident;

(c) he is both such a resident and a statutory secure or introductory tenant of the whole or any part of the dwelling;

(d) he is such a resident and has a contractual licence to occupy the whole or any part of the dwelling;

(e) he is such a resident; or

(f) he is the owner of the dwelling.

(5) In this Part, unless the context otherwise requires -

"resident", in relation to any dwelling means an individual who has attained the age of 18 years and has his sole or main residence in the dwelling.

11. Discounts

(2) .... the amount of Council Tax payable in respect of any chargeable dwelling and any day shall be subject to a discount equal to twice the appropriate percentage of that amount if on that day -

(a) there is no resident of the dwelling;".

Findings of Fact made by the Tribunal

6. The Tribunal made the following findings of fact which led it to the conclusion that the Appellant falls to be considered as the resident owner at the top of the liability hierarchy (Section 6(2)(a) of the Act).

"... Mr Bennett resided in various places depending on his work commitments. These varied from staying with friends and relatives to B&B's and compounds on the work site. Although it was acknowledged that Mr Bennett rarely returned to the appeal property, he did retain a legal freehold interest and was able to return, should he wish to do so, at any time.

With regard to the time spent at the subject property, the Tribunal accepted that Mr Bennett made only occasional visits, probably no more than once per month, to collect post and check the condition of the property etc.

....

It is clear from the evidence presented that Mr Bennett lives a fairly "nomadic life" staying with friends and relatives, on work sites and in B&B's often only for a few days at a time. From this, it was found that no other property could be considered to be Mr Bennett's sole or main residence. Therefore, the Tribunal concluded that the subject property must be held to be the sole or main residence of Mr Bennett. It is the only property where he has a financial interest, it is the only property where he has a right to return, it is the property to which he could return were it not for his work commitments. It is also the property to which (in the fullness of time) he intends to retire to."

The Law

7. There is no definition of the words "sole or main residence" in the Act. However, they have been considered in previous cases before the High Court to which the Tribunal had regard. Ms. Patry and Mr Oldham both prayed in aid parts of the judgments in the four leading cases in support of their submissions.
8. In Frost (Inspector of Taxes) v. Feltham [1981] 1 WLR 452 Nourse J. held, when considering whether a house was used by the tax payer as "his only or main residence" within paragraph 4(1)(a) of Schedule 1 to the Finance Act 1974 that a person's "main" residence was his "principal" or "more important" one and that issue could not be decided solely by the way in which he divided his time between two residences but depended on all the circumstances of the case. He said at 455G-H,

"The question is essentially one of fact and degree for the Tribunal of first instance, in this case the Commissioners."

9. In Bradford Metropolitan City Council v Anderton 89 LGR 681 Hutchinson J. expressed the view that

"There is no escape from the fact that Frost v Feltham ... is authority for the proposition that, in determining where a person's main residence is, a court or tribunal must have regard to many matters, and that the length of time spent in a place is only a factor, and certainly not a decisive one." (p.694).

Mr Anderton, a merchant seaman, spent 75% of his time at sea, spending only his leaves in the house in which his wife lived. The Court held that even if a ship could be a residence, (which it found in law it could not), the house was Mr Anderton's sole or main residence.

"because that is where his home is, where he has his settled and usual abode, which he leaves only when the exigencies of his occupation compel him to go to sea, for "temporary or occasional absences of long or short duration"". (pp.694-695)

10. The case of R (on the Application of Navabi) v Chester Le Street District Council [2001] EWHC Admin 796 is very different on its facts. Mr Navabi was only away from his home for some short temporary period of time. He had security of tenure in the property; and compared with any other property it was plainly his sole or main residence.
11. Finally the case of Ward v Kingston upon Hull City Council [1993] RA 71. Here the appellant worked abroad in Saudi Arabia for long periods of time and lived in accommodation provided there by his employers except for 6 to 9 weeks leave per year when he returned to the house he jointly owned with his wife in Hull. The court held that he was solely or mainly resident at the house and properly registered for personal community charge in Hull. Auld J., referring to the decision in Bradford Metropolitan City Council v Anderton said,

"There is the obvious distinction between that case and this in that there the judge was concerned with the occupation by the applicant of a ship, when he was working as a seaman at sea, and of his matrimonial home when he was ashore. Here the case concerns two houses on dry land, but, apart from that distinction, there are a number of common factors. The most important of those are: that Mr Ward has security of tenure in his home in Hull, which he clearly does not have in his tied accommodation in Saudi Arabia; that the only home that he owns is the one in Hull; that he lives in the accommodation in Saudi Arabia, when he does, only because he works there; and that as in the Bradford Metropolitan City Council case, he spends longer away from his matrimonial home than he does in it." (p.80).

The Decision of the Tribunal

12. In the absence of any statutory definition of the words "sole or main residence", the approach of the Tribunal was to consider the factors that had been identified in the four High Court decisions to which they had been referred for the purposes of determining whether the property was the sole or main residence of Mr Bennett. The Tribunal in their decision set out their reasoning which led them to the conclusion that it was.

"In those cases, the decision of the High Court was to find, amongst other factors, that the time spent away from a dwelling was not the main criteria to be met and did not necessarily mean that a dwelling ceased to be a person's sole or main residence.

The Tribunal acknowledged that other factors must also be taken into account, such as the location of immediate family, location of personal possessions, title to the properties concerned and the intention to return.

The decisions of the High Court .... make it clear that it is not necessary to reside in the subject property for it to be treated as your sole or main residence, it is the interest in and other connections with the property that count. Having regard to the legal precedents, the Tribunal was satisfied that it is not necessary, under the definitions of sole or main residence, to live regularly at a particular address. Therefore, when determining where a person's sole or main residence is, other factors in the case must also be taken into account."

13. Ms. Patry, on behalf of the Appellant, and Mr Bennett himself submitted that the principal distinguishing feature between the authorities referred to and the present case was that he had never lived at the property at all, whereas in all other cases the person had lived there. It is correct that the Tribunal made no such finding of fact and accordingly there is this distinguishing feature on the facts between the present case and the authorities referred to. However in my judgment the fact that the Appellant did not live at the property is just one factor that must be taken into account. Other factors, which result in findings of fact made by the Tribunal, which are of particular relevance in this connection, are that the Appellant had a legal freehold in the property; there is no other property in which he had a financial interest; it is the only property where he has a right to return; he visited the property (albeit occasionally) probably no more than once per month, to collect post and check the condition of the property etc.; it is the property to which he could return were it not for his work commitments and it was the property to which he intended to retire to. In my judgment all these factors are relevant and are entitled to consideration together with the fact that the Appellant did not live at the property when deciding whether the property was his sole or main residence.
14. Mr Bennett told me that he had never intended to live in the property and it was not the property to which he intended to retire to. He said that on retirement he would go abroad and live on the island of St. Helena. However, I note that the Tribunal made a specific finding of fact that

"It is .. the property to which (in the fullness of time) he intends to retire to."

That finding, together with all the findings of fact made by the Tribunal, followed the hearing which took place on 2 July 2002. Mr Bennett attended, I understand from him, together with a friend and Mrs A. Spedding appeared on behalf of the Respondent. I have not seen a transcript of the proceedings, but there is no basis before me for any challenge to the Tribunal's finding that the property was the one to which the Appellant intended to retire.

15. In their decision the Tribunal said:

"Had the various occupiers of the property had a formal tenancy, providing them with exclusive occupation for the period of their residence, the finding of the Tribunal would have been different in this matter."

16. In the third ground of his Notice of Appeal he says

"For much of the period in question I have had tenants in the property who were themselves liable to pay Council Tax or the property has been empty ... ".

Ms Patry submitted that a tenancy can be created orally. She further submitted that as the Appellant did not live at the property and other persons did the Tribunal should have concluded that they lived there pursuant to tenancy agreements made orally and it would be assumed as a matter of law that exclusive possession had been granted to them. The difficulty with this submission is that it is implicit in the Tribunal's decision that they did not accept that any of the persons who occupied the property did so as tenants with exclusive possession of the premises. I accept that a lease may be made orally provided, inter alia, that it is for a term not exceeding 3 years and it is at the best rent reasonably obtainable without taking a fine (see Hill & Redman's Law of Landlord & Tenant (1999), A[1162]). However it is essential to the creation of a tenancy of a corporeal hereditament that the tenant should be granted the right to the exclusive possession of the premises. (Street v Mountford [1985] AC 809). There is no finding of fact in the present case that the various occupiers of the property were granted the right to the exclusive possession of the premises. Hence the observation of the Tribunal set out above as to what the position would have been if the Tribunal had found such to be the position.

17. At the resumed hearing on 4 March 2003 Mr Bennett produced an additional bundle of documents which contained documents purporting to be written tenancy agreements between himself and various occupiers of the property, namely Mrs Fiona Paterson, M.E. Skinner, Mr & Mrs Thomas Wright and Mr William Carr. Mr Bennett told me that he had handed these documents to Ms Patry before the hearing on 12 December 2002. However he accepted, as I understood it, that they were not placed in evidence before the Tribunal and the first time they were produced on this appeal was when he referred to them on 4 March (albeit there is reference to "written tenancy agreements" in the first Skeleton Argument (para 3) filed on his behalf in this appeal).
18. Mr Bennett applied for these documents to be admitted in evidence on this appeal. Mr Oldham opposed that application, referring to the decision of the Employment Appeal Tribunal in Wileman v Minilec Engineering Ltd [1988] ICR 318 and relying on the test laid down in Ladd v Marshall [1954] 1 WLR 1489 as to the admission of fresh evidence on appeal. To justify the reception of fresh evidence "first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial" (per Denning L.J. at p.1491). Mr Bennett accepts that the evidence was available at the hearing before the Tribunal. He says that the Tribunal should have asked him for it. Mr Oldham responds that it was for the Appellant to adduce the evidence if he wanted the Tribunal to rely upon it. In my judgment the first condition of the Ladd v Marshall test has not been satisfied. Accordingly the evidence is not admissible on this appeal.
19. In my judgment the Appellant has failed to show any error of law in the decision of the Tribunal. The Tribunal asked itself the correct question, adopted the proper approach to the issue, referred to the relevant authorities and made findings of fact that are not susceptible to challenge on grounds of perversity.

Discounts

20. In her Supplementary Skeleton Argument Ms. Patry submitted

"28. The Appellant does not challenge the levels of discounts awarded if his appeal is unsuccessful. However, if he is successful, the discounts will have to be re-assessed".

At the resumed hearing I understood Mr Bennett to submit that in certain cases the discounts should be re-assessed in any event because the Tribunal made certain incorrect factual findings. For example he says Miss Waller was under 18 years of age during the relevant period and therefore the discount should have been different than that which was given. In my judgment there is no proper basis for challenging the findings of fact made by the Tribunal on the issue of Discounts.

21. Accordingly this appeal fails and the decision of the Tribunal is confirmed.

- - - - - - - - - - - - -

MR JUSTICE SUPPERSTONE: Mr Bennett, Mr Oldham, good morning.

I propose to pass to you each a copy of the draft judgment in this case that I have prepared. I will then rise and give you an opportunity to read it through. If there are any facts incorrectly recorded, or typographical errors, I would be grateful if you would identify them when I return to court. I shall then formally hand down judgment.

So I will rise now and if you would let the usher know when you are ready, I would wish to resume by 10.30 if possible in any event.

(A short break)

MR JUSTICE SUPPERSTONE: Yes, Mr Bennett, Mr Oldham. I have amended my draft to delete from paragraph 2, line 2 the words "from the pro bono unit".

Are there any other amendments that I should make, Mr Bennett? Is there any typographical error, or any recorded fact incorrectly recorded, that you have identified?

MR BENNETT: I don't know how to go about this, your Honour, because I'm not a lawyer.

MR JUSTICE SUPPERSTONE: No, of course not.

I give you this opportunity. What normally happens, Mr Bennett, and the reason we have done it this way, is because you are in person. Normally, the draft is sent to counsel and solicitors 48 hours before this hearing. Any amendments and typographical errors are amended and then the judgment is formally handed down, but because you are in person, it was thought appropriate to do it this way. So you do not have to identify any error in terms of the facts. Hopefully, there are no errors.

I appreciate, of course, that the decision that I have made is one which you may well take issue with, and it is not one that you will necessarily accept. I understand that.

MR BENNETT: I accept it, your Honour. I'm glad I've lost, actually.

MR JUSTICE SUPPERSTONE: I am grateful.

MR BENNETT: I'm glad I've lost. I really am. I'll even shake your hand, your Honour. I'm glad I've lost.

MR JUSTICE SUPPERSTONE: Thank you very much.

Mr Oldham.

MR OLDHAM: My Lord, just a couple of points, just typographic matters.

Council Tax is given a capital "C" and "T" almost throughout, but there are a couple of occasions where it comes with a small "t".

MR JUSTICE SUPPERSTONE: Thank you.

MR OLDHAM: The third line of the first paragraph and the last line of paragraph 3.

MR JUSTICE SUPPERSTONE: Yes. I have that.

MR OLDHAM: Just one other small point, my Lord, in the recitation, section 6 of the 1988 Act, paragraph 5.

MR JUSTICE SUPPERSTONE: Yes.

MR OLDHAM: In paragraph 6(2)(c), it is slightly confusing in the version I handed up to your Lordship, but there are some brackets, as your Lordship has set out, around "secure" and "reduction tenant", but I think those brackets are just meant to show the insertion of new words into the 1988 Act.

So I would suggest, my Lord, that those brackets can come out.

MR JUSTICE SUPPERSTONE: Thank you very much.

MR OLDHAM: My Lord, there is one other point -- slightly more substantive -- which I think I should just mention on the issue of discounts.

I do not think there is any need for your Lordship's judgment to be altered, but it is a matter my clients are looking at, and just as a matter of record, I would like to mention to your Lordship that they are doing that, and if there is any development there, then they will, if they feel fit, talk to Mr Bennett about that.

MR JUSTICE SUPPERSTONE: Thank you for indicating that and Mr Bennett will have heard that.

MR OLDHAM: My Lord, indeed.

On the other hand, there is no need, I think -- indeed, I do not think there should be any alteration to your Lordship's conclusion on the issue of discounts, namely that there was no proper basis for challenging the finding of fact.

MR JUSTICE SUPPERSTONE: Yes.

My conclusion, Mr Bennett, on discounts was on the basis of the evidence and material before me in this court. What you have heard Mr Oldham say is that the Council themselves are looking again at the issue of discounts, and if there is any discount that should have been made and was not made in their view, then, as I understand it, they will most certainly be communicating with you with regard to that.

MR BENNETT: Your Honour, if the Council had communicated with me over discounts in the first place, we wouldn't -- I wouldn't be standing here today. This is why I'm here today, because his clients will not communicate with me, and never have done. They've asked me to travel 300 mile to court, and when I walk in I'm met by half a dozen police officers and thrown off the premises, and this is the reason that we've got this far in here today, is through their stupidity, not speaking to me.

I'm not the only person that they're treating in this way. Since this case has been highlighted in the local newspapers, I've had lots of people speaking to me, and as I said to you in the court case the other week, isn't it strange that now that we're in the court, all of a sudden they're sending me discounts, which is what I wanted in the first place, your Honour.

If they'd have given me the discounts in the first place, we wouldn't have had to come to here.

MR JUSTICE SUPPERSTONE: Mr Bennett, I think it is probably best if I just do not comment on the matter.

MR BENNETT: I've never disputed the fact that I don't owe them Council Tax. I was disputing the amounts. Now, all of a sudden, just before the court case the other week, I got some amended bills through from 1998, 1999 to 2002 and all of a sudden, they were sending me summonses a few month ago and a few year ago for the full amount. Now, all of a sudden, they want to give me the discounts, which I should have had in the first place.

So we've had to come this far.

MR JUSTICE SUPPERSTONE: On the basis there are no further matters -- nothing further, Mr Oldham, in terms of any amendment that is necessary to the draft?

MR OLDHAM: No further amendments, my Lord.

MR JUSTICE SUPPERSTONE: Mr Bennett and Mr Oldham, thank you both for your assistance.

MR BENNETT: Your Honour, there is just one thing --

MR JUSTICE SUPPERSTONE: I am not completed. I will let you say whatever you want.

Let me just say this, that this appeal is dismissed and the decision of the Tribunal is confirmed, for the reasons set out in the draft judgment, together with the amendments that will form part of a final judgment that will be sent to the parties in due course.

So the draft judgment, as amended, is to be treated as having been handed down.

MR OLDHAM: My Lord, I am grateful.

My Lord, we do apply for our costs of this appeal -- of defending this appeal, my Lord.

MR JUSTICE SUPPERSTONE: Mr Bennett, Mr Oldham is asking for the costs that the Council have incurred in respect of this appeal and you will have an opportunity to say why they should not be entitled to their costs.

MR BENNETT: Why they shouldn't be paid?

MR JUSTICE SUPPERSTONE: Yes.

MR BENNETT: The reason they shouldn't be paid, your Honour, is like I outlined before. If they'd had the common decency to speak to me -- I've had several local councillors going to the Council Tax offices over the years and asked them to sort it out with me. I've had (inaudible) the Conservative Party. I've had several local councillors and newspapers. I've even had Patrick (inaudible) the MP for Bedford, three year ago, your Honour, trying to get them to communicate with me to sort this matter out sensibly.

I've had several different solicitors up and down the country, writing to them, asking them could they please at least communicate, either with the solicitor or with me, to sort these discounts out, and I'll gladly pay them. I've never tried to not pay them, your Honour, and it's just their attitude.

I've even got it on tape, where one of them threatened me when I walked in the Council Tax offices. That's in the hands of a solicitor now.

I didn't come here, your Honour, and say, "I don't owe them a penny". I have always said "I want to pay them", and if this had been sorted out five year ago, or if they'd have said to me five year ago, "Mr Bennet, we're not happy with them tenancy agreements, can you amend them?" I could have done. It was simple. It was simple.

But if you read in the local paper, your Honour -- I get it sent down to me every week, the local papers, and there's never a week goes by that somebody isn't taking Copeland Borough Council to court, or complaining about them, over their attitude towards the public.

I was in there one day, your Honour -- in the Council Tax offices, before they threw me out with the police. There was a woman in there just getting the run around. I had it one day I went in. I went in and spoke to Clifton Boyce, who was their solicitor. Sitting with him, your Honour, was a little fat lady, and I'm not being funny, but I'll explain why I call her that. Sitting there for over an hour. He said to the little fat lady, "can you go downstairs and get Mr Bennett the appropriate forms so we can fill it out and we can sort this out now before it goes any further?"

I then went down the stairs, your Honour, to the Council Tax office, pressed the bell. The little fat lady come with the big gentleman. I said, "I've come for them forms". She said, "what forms?" I said, "the forms that Clifton Boyce told me". "I don't know what you're talking about". I say, "can I have your name?" "I'm not giving you it". That's why I referred to her as the little fat lady.

Beside of me was a big gentleman. I said, "Can I have your name, sir?" He says, "I'm me", followed by half a dozen police officers turning up just to throw me out.

MR JUSTICE SUPPERSTONE: You see, the difficulty is, Mr Bennett, that you brought an appeal upon a point of law.

MR BENNETT: Your Honour, I did, yeah.

MR JUSTICE SUPPERSTONE: That is the only basis on which the matter can come from the Tribunal to this court and that appeal has failed.

MR BENNETT: Like it says in here, your Honour -- it says in here where they said -- you're quoting -- it says the cottage that I intend to retire to, which is what the Tribunal was saying.

MR JUSTICE SUPPERSTONE: That was the finding of fact.

MR BENNETT: (Inaudible) the Tribunal said that, your Honour. I've tried to get hold of Mr Buckland, since this was in his first draft. Mr Buckland is another Council official and he's refusing to communicate with me, because they keep all the meetings, don't they?

MR JUSTICE SUPPERSTONE: Yes.

As I explained to you, Mr Bennett, I am not in a position to go behind the findings of fact made by the Tribunal, unless there is a case that they were made on the basis of no evidence.

MR BENNETT: (Inaudible) like I said, I couldn't get legal aid for this case, but I've just been told I can get legal aid to sue Miss (inaudible) for misrepresentation. Isn't is strange? It's a strange law.

MR JUSTICE SUPPERSTONE: Mr Oldham, what form of order do you seek in relation to costs?

MR OLDHAM: My Lord, the form of order is that the appellant should pay the respondent's costs of and relating to the appeal, to be assessed if not agreed.

MR JUSTICE SUPPERSTONE: Mr Bennett, the position then is that if you do not agree the amount of costs -- if I make such an order -- that the Council seek, then that matter will go before a Taxing Master, who will assess the costs as to what is fair and reasonable.

MR BENNETT: So I can appeal against Mr Oldham's costs, then, can I?

MR JUSTICE SUPPERSTONE: I am so sorry?

MR BENNETT: I can appeal against what he's going to charge me?

MR JUSTICE SUPPERSTONE: If you do not agree his costs, you have an opportunity to argue the point on costs.

MR BENNETT: Okay. How much d'you want?

MR JUSTICE SUPPERSTONE: We will not be discussing that here and now.

I make an order that in my judgment Mr Bennett, as I say, brought the appeal. The appeal has failed. Costs must follow the event and the appellant to pay the respondent's costs of and related to the appeal, to be assessed if not agreed.

MR OLDHAM: My Lord, I am grateful.

MR JUSTICE SUPPERSTONE: Mr Bennett, I do not know whether you may wish to appeal this decision. You have every right to apply to do so.

May I just tell you this, that in order to appeal this decision to a higher court -- that is the Court of Appeal -- you need permission from this court, or if this court refuses permission, from the Court of Appeal.

Just before I continue, Mr Oldham, I see you reaching for a book.

MR OLDHAM: My Lord, yes.

MR JUSTICE SUPPERSTONE: Is there a right of appeal to the Court of Appeal from the decision of this court?

MR OLDHAM: My Lord, only I think if permission is given from the Court of Appeal, because of the rule on second appeals.

I do not know whether your Lordship has a copy of volume 1 of the White Book to hand?

MR JUSTICE SUPPERSTONE: I can reach for it.

MR OLDHAM: I am grateful.

MR JUSTICE SUPPERSTONE: It was certainly my understanding that Mr Bennett would have a right of appeal, and that is what I said to him, but what you are indicating is that it is not for this court in any event to give permission?

MR OLDHAM: My Lord, that is right. My Lord, yes. It is rule 52.13, and I am conscious that this is difficult for Mr Bennett because he does not have the White Book to hand. He is more than welcome to take mine.

MR BENNETT: Your Honour, I'll not be appealing against it because I'd be wasting my time, so you can --

MR JUSTICE SUPPERSTONE: Mr Bennett, all I --

MR BENNETT: (Inaudible).

MR JUSTICE SUPPERSTONE: Let me just look at 52.13. What is the page number, Mr Oldham?

MR BENNETT: I've seen the legal system work, your Honour.

MR OLDHAM: My Lord, it is page 1201 -- of the version I have, anyway.

MR JUSTICE SUPPERSTONE: I will tell you why I am going through this, Mr Bennett; if there was the need for leave from this court, then it would be sensible for the application to be made here and now so that time and expense is not wasted by having to come back before me.

But if in fact it is not a question of this court granting leave, then that determines the matter, and if there was to be an appeal, and if you were to take advice and decide to appeal in due course, then it appears from what Mr Oldham says that you would have to apply to the Court of Appeal.

Let us just look at it, Mr Oldham, very briefly.

MR OLDHAM: My Lord, yes. 52.13.

MR JUSTICE SUPPERSTONE: Yes, I have that.

MR OLDHAM: I will just let your Lordship read through that.

(Pause).

MR JUSTICE SUPPERSTONE: Yes, I have read that.

MR OLDHAM: My Lord, there are some notes about that section, which your Lordship perhaps should look at, which are at page 1190.

It is paragraph 52.3.25, which gives a commentary on what is meant by second -- what is meant by first appeals, and therefore what appears are caught by this rule.

The one we are dealing with, my Lord, is paragraph (d) for reasons --

MR JUSTICE SUPPERSTONE: Yes, I have that.

MR OLDHAM: That is because this is not actually an appeal under the Tribunals Enquiries Act. It is under Tribunal regulations which we have already looked at.

MR JUSTICE SUPPERSTONE: Yes.

MR OLDHAM: So what we say is it is caught by this rule.

My Lord, my experience of this is that applications of this sort are not made before the first instance court at all, but to the Court of Appeal, if necessary.

MR JUSTICE SUPPERSTONE: This would seem to support your submission, Mr Oldham.

Mr Bennett, that being so, it is not necessary for us to take this matter any further at this stage, but let me summarise the position for you.

If you do wish in due course to appeal my decision to the Court of Appeal, you have to apply to the Court of Appeal for leave, and that has to be done within a specified time and you must seek advice in relation to that.

If, on the other hand, what Mr Oldham has submitted, which appears to be correct from the book that I have been looking at, is incorrect, then as long as you apply then promptly to this court and to me, you will not be disadvantaged by the fact that you have been told that you should go to the Court of Appeal.

So if you do wish to consider the decision and take it on appeal, my advice to you is to seek legal advice as soon as possible.

MR OLDHAM: My Lord, I am grateful.

MR JUSTICE SUPPERSTONE: Thank you both very much.