England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		23rd July 2008

1. MR JUSTICE MITTING: By a claim form CO/3527/2007, the claimant seeks permission to apply for judicial review of the decision of the Barnet Magistrates' Court to adjourn certain proceedings to 15th May 2007. The proceedings were proceedings to enforce liability notices in respect of council tax due on a dwelling house at 1 Handley Page, Broadhead Strand, London. The underlying complaint brought by the claimant is that he should not have been charged council tax for the years to which the liability notices relate.
2. After many years of proceedings in the Magistrates' Courts and in the High Court, the claimant eventually brought his challenge to the underlying issue — whether or not he was the person liable to pay the council tax — to the appropriate tribunal, the London North West Valuation Tribunal. Before that Tribunal the London Borough of Barnet contended that he was the person liable to pay council tax because he was a resident with a freehold interest. The Valuation Tribunal rejected that contention, considered evidence about occupation of the premises by others during the relevant period, but concluded, on balance, that while some people may have stayed at the premises, no one was "actually resident at it". Accordingly, applying the hierarchy set out in section 6(2) of the Local Government Finance Act 1992, the Tribunal concluded that the claimant was liable to pay the council tax as "the owner of the dwelling".
3. The claimant disagrees with that conclusion, but he has not so far brought an appeal by the only means by which he can challenge that decision, namely an appeal under Regulation 32(1) of the Council Tax (Alteration of Lists and Appeals) Regulations 1993. Under that Regulation, an appeal lies to the High Court:

"... on a question of law arising out of a decision or order which is given or made by a tribunal ..."

4. Regulation 32(2) provides:

"Subject to paragraph (3) [which is not material], an appeal under paragraph (1) may be dismissed if it is not made within four weeks of the date on which notice is given of the decision or order that is the subject of the appeal."

5. The claimant did not lodge an appeal against the Valuation Tribunal's decision within four weeks of 14th February 2008. However, Regulation 32 does not provide that in that event no appeal may be lodged. All that it provides is that an appeal may be dismissed if it is not made within four weeks of the date on which notice is given of the decision or order of the Tribunal.
6. Accordingly, as Mr Cannon for the London Borough of Barnet accepts, there is an implied power in the court to determine an appeal, even if it is brought outside that period.
7. If it had been obvious that the decision of the Tribunal was unappealable, I would not have entertained an application that I defer considering the application for permission to apply for judicial review of the magistrates' decision in CO/3527/2007. However, it is not obvious to me that the decision of the Valuation Tribunal is not appealable in point of law, not least because the decision was made on a basis which was not advanced by the London Borough of Barnet. I do not in any way prejudge the outcome of any appeal in point of law and nothing that I say is to be taken as indicating that I prejudge it. I make that remark because the claimant has in relation to what other judges have said put a gloss or interpretation upon what they have said which does not seem to me to be in the least justified.
8. The claimant should in my judgment have the opportunity of inviting this court to decide whether or not to entertain an appeal and if it does to decide whether or not to allow it or dismiss it. Accordingly, and to that end, I make the following order:

(1) By 4.00pm on 31st July 2008 the claimant must:

(i) lodge an appeal against the decision of the Valuation Tribunal, with full grounds of appeal;

(ii) set out the reasons why the court should not dismiss his appeal because it was not made within four weeks of the notification of the Tribunal's decision to him.

(2) In the event that no such appeal is lodged by 4.00pm on 31st July 2008, I refuse permission to apply for judicial review in CO/3527/2007.

(3) If an appeal is lodged by 4.00pm on 31st July 2008, the appeal is to be listed together with CO/3527/2007 for an oral hearing before a judge.

(4) At that oral hearing the judge will determine the following questions:

(i) whether to dismiss the appeal because it was not lodged within four weeks;

(ii) if not, to determine the appeal on its merits;

(iii) to determine the application for permission to apply for judicial review in CO/3527/2007.

9. MR KINSLEY: Sorry, my Lord, can you please repeat that?
10. MR JUSTICE MITTING: So that there can be no doubt about what I have ordered, I direct that a transcript of this ruling be prepared at public expense and supplied to both parties.
11. Mr Kinsley, we have your two other judicial reviews, for which you have permission.
12. MR KINSLEY: Thank you, my Lord.
(Further submissions)
13. MR JUSTICE MITTING: In the financial year 2005/2006, the claimant was the person liable to pay council tax on a dwelling house known as 1 Handley Page, London NW9.
14. At some stage the claimant changed his name to his current name, Eze Kinsley. Before 2005 he had been issued with council tax payment books in his previous name. It appears that the council tax book for the first three instalments of council tax due in the year 2005/2006 had been issued in his previous name. He did not make payment of instalments. He asked for a payment book in his current name. One was eventually provided, but it did not include slips for the first three months of the fiscal year: April, May and June. Accordingly, he did not make payment of the first three instalments of council tax: £120.90 due for April and £125 each due for May and June.
15. In due course the council, the London Borough of Barnet, took proceedings in the Barnet Magistrates' Court to enforce the liability for council tax. Pursuant to a statutory scheme which I shall explain in a moment, they demanded payment of the whole sum outstanding for the financial year and not just the instalments which by the date of issue had then become due. The magistrates made what is called a liability order. That order was in the sum of £1,120.90, arrived at by deducting from council tax due for the whole year the sum of £125 already paid for the month of July and adding to it costs of £88: £1,120.90 minus £125 plus £28, total £1,083.90.
16. The claimant protested. He sought to have the liability order set aside. But on 17th October 2005, on the advice of their clerk, the magistrates correctly determined that they had no power to set aside the liability order because the liability order was obtained in civil proceedings and not in criminal proceedings, when section 142 of the Magistrates' Courts Act 1980 could have come to the rescue.
17. The claimant protested to the local authority. They replied in an unhelpful letter of 3rd November 2005 declining to accept payment of council tax by instalments, insisting that the claimant dealt with the bailiffs, Phocol Civil & Commercial Collections Ltd, and stating that although he had not received payment slips for the early months of the financial year, there were other means of making the payment which he could have taken.
18. The claimant issued judicial review proceedings. He has in fact paid seven instalments out of the ten that would otherwise be due, so that his liability is now only £370.90 plus whatever costs are lawfully payable. That sum is made up of the three unpaid instalments.
19. On any view these proceedings are the proverbial sledgehammer to crack a nut. Be that as it may, it is necessary to examine whether or not the liability order was lawfully made.
20. The collection of council tax is dealt with in the Council Tax (Administration and Enforcement) Regulations 1992 (as amended). Regulation 18(1) requires a billing authority, such as this local authority, to serve a notice in writing on every liable person in accordance with Regulations 19 to 21. Regulation 20 provides:

"(1) If the demand notice is issued before or during the relevant year, the notice shall require the making of payments on account of the amount referred to in paragraph (2).

(2) The amount is —

(a) the billing authority's estimate of the chargeable amount, made as respects the relevant year or part, as the case may be, on the assumptions referred to in paragraph (3); ..."

I need not set out the assumptions, which are not relevant for present purposes.

21. Regulation 21 provides that unless an agreement of a kind permitted by the Regulations has been reached or the authority has made a resolution under Part II of Schedule 1 to the Regulations:

"... a notice to which paragraph (1) of regulation 20 applies shall require the amount mentioned in paragraph (2) of that regulation to be paid by instalments in accordance with Part I of Schedule 1 hereto."

22. Thus the scheme of the Regulations thus far requires the local authority to serve a notice demanding the full amount estimated to be payable for the financial year, but which then goes on to set out the instalments which the billing authority requires in accordance with Schedule 1.
23. Schedule 1 provides how the instalments are to be calculated. They are to be monthly (see paragraph 2(2)) and they are calculated by reference to a formula which in effect requires, subject to adjustments and rounding, payment of equal amounts in ten instalments of the total sum payable.
24. Regulation 23 deals with failure to pay by instalments and provides:

"(1) Subject to paragraph (2), where —

(a) a demand notice has been served by a billing authority on a liable person,

(b) instalments in respect of the council tax to which the notice relates are payable in accordance with Part I of Schedule 1 ... and

(c) any such instalment is not paid in accordance with that Schedule ...

the billing authority shall serve a notice ('reminder notice') on the liable person stating —

(i) the instalments required to be paid,

(ii) the effect of paragraph (3) below, and

(iii) where the notice is the second such notice as regards the relevant year, the effect of paragraph (4) below."

25. Paragraph (3) requires the notice to warn the person on whom it is served that unless within the period of seven days beginning with the day on which the notice is issued the liable person fails to pay instalments, then the unpaid balance of the estimated amount (i.e. the total amount) will become payable on the expiry of a further seven days.
26. Sub-paragraph (4) provides:

"If, after making a payment in accordance with a reminder notice which is the second such notice as regards the relevant year, the liable person fails to pay any subsequent instalment as regards that year on or before the day on which it falls due, the unpaid balance of the estimated amount shall become payable by him on the day following the day of the failure."

Thus the scheme provides that if the person liable pays instalments as and when they are due or pays any arrears on being served with a reminder notice, he is entitled to pay the total sum due by instalments, but if he does not then the whole sum becomes due.

27. When that occurs the billing authority are entitled to apply to a Magistrates' Court for a liability order. Regulation 33(1) provides that:

"... before a billing authority applies for a liability order it shall serve on the person against whom the application is to be made a notice ('final notice'), which is to be in addition to any notice required to be served under Part V, and which is to state every amount in respect of which the authority is to make the application."

28. Regulation 34 requires a local authority to apply for a liability order in a particular way:

"(2) The application is to be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding."

29. Sub-paragraph (6) provides that:

"The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid."

30. Regulation 35(2)(c) provides that:

"(2) A summons issued under regulation 34(2) may be served on a person —

...

(c) by sending it by post to him at his usual or last known place of abode, ..."

31. Mr Peter Head, the Senior Recovery Officer for the London Borough of Barnet, has made a statement dated 7th March 2006 in which, with appropriate exhibits, he explained what happened. The explanation and exhibits demonstrate the following.
32. On 15th July 2005 James Massey, an employee of the local authority, served 6,107 council tax reminder notices, pursuant to Regulation 23 of the Regulations on 6,107 identified individuals. The individuals are listed in a computer printed schedule. The claimant appears in the list at an address which he had notified the council as his last known place of abode, 9B Varley Parade, The Hyde, London NW9. The schedule makes it clear that it was indeed this year's demand for council tax that was being referred to, because it specifies the sums that were due in the first three months of the year: £120.90, £125 and £125. A complaint was made to the Barnet Magistrates' Court dated 12th August 2005. It too had appended to it a schedule in which the claimant appears at the same address, 9B Varley Parade. The property in respect of which the liability order was being sought was identified as 1 Handley Page, Broadhead Strand, London NW9 and the amount due for 2005/2006 £1,120.90 plus costs.
33. The Magistrates' Court made a liability order, along with many others, on 5th September 2005. Again the orders which they made were identified in a computer printed schedule. The schedule includes the name of the claimant at the two addresses mentioned, and the year is as previously stated with a somewhat higher amount for costs.
34. That evidence, together with Mr Head's explanation as to what happened, satisfies me that the reminder notice was duly served on the claimant and that the summons for a liability notice was also properly served. There is in addition in that respect appended to the documents a certificate by John Langley, an employee of the council, that he served 6,120 council tax summonses, countersigned by an official of the Royal Mail. It is not wholly clear whether that includes by reference the schedule to which I have referred, but given the other documents to which I have referred it is plain, in my view beyond argument, that the summons for the liability notice was duly served and that the liability order was accordingly properly made.
35. The claimant complains that he received no summons, as he complained to the Magistrates' Courts. It is not necessary for present purposes for me to make any decision upon that question. What the Regulations require is that the summons is served. I am satisfied that it was and, in accordance with the usual practice in this court on judicial review proceedings, am content to accept the evidence of Mr Head, supplemented by the documents to which I have referred, as demonstrating what occurred. Only in circumstances where it is apparent that there are real grounds for doubting the truth of what is said can and should a judge in this court exercising this jurisdiction go behind what a responsible official says in a witness statement, the truth of which he has verified.
36. Accordingly, and for reasons which I have been constrained to explain at length, this judicial review claim cannot succeed. I reject it. The upshot is that the claim is dismissed.
37. MR KINSLEY: My Lord, you did not deal with the issue of the value. You quite rightly accepted that what is owed is £375.
38. MR JUSTICE MITTING: £370.90 plus whatever is due by way of costs.
39. MR KINSLEY: Yes, my Lord. The costs, my Lord, doesn't get to 1,000. Perhaps the other side — you can get the agreement from the other side as to what is actually due.
40. MR JUSTICE MITTING: From what I have been told I have no doubt that credit will be given to you for the sums which you have actually paid. In that respect, could I hand you back your payment book, which is the original document which proves what you have paid.
41. MR KINSLEY: Thank you, my Lord. Just my Lord I have, please, because of previous dealing with the respondent, can we please ascertain how much exactly it is in this court, my Lord. It will only take a moment for their counsel --
42. MR JUSTICE MITTING: I have got one more claim to hear. If while hearing that the amount can be calculated by Mr Head, I am sure he will do so.
43. MR CANNON: My Lord, we will try and make enquiries. I am reminded by Mr Head that at the moment there is an embargo injunction on us from pursuing that debt, and I think as part of your Lordship's order that might need to be lifted.
44. MR JUSTICE MITTING: Any interim orders fall on the dismissal of the claim.
45. MR CANNON: Indeed.
46. MR JUSTICE MITTING: For the avoidance of doubt, I direct that all interim orders lapse on the determination of the claim.
47. MR CANNON: I am grateful.
48. MR KINSLEY: My Lord, I am not enquiring about the decision you made or challenging, because the decision you made has always been, you know, what I've accepted from the very beginning, so it hasn't made any difference, my Lord.
49. MR JUSTICE MITTING: We have another claim to deal with. I am afraid we are not to get to deal with that unless I can get on with it now.
50. MR KINSLEY: Can I just please, just one note on the order, for the other side, to send me the means to pay. It is still the same issue and nothing more. He has already accepted that it was wrong for them not to do that in the first place. Nothing has changed from the decision today.
51. MR CANNON: My Lord, Mr Head will write to Mr Kinsley, probably tomorrow, with the up-to-date figure, giving him credit for the payments he has made and giving him the means to pay.
52. MR JUSTICE MITTING: Thank you. That I think meets your requirements.
53. MR KINSLEY: Yes, my Lord. But how much money can — I need this court to ascertain that. Because it is something different, when Mr Head write to me and put on — sums amount of money that doesn't add up, then I wouldn't have anybody else to go to. I wouldn't have any avenue to complain. So I think it is probably something like your Lordship rightly said, while we are dealing with the next matter for Mr Head to ascertain how much is owed so we can agree the figure.
54. MR JUSTICE MITTING: All I can tell is how much is due by way of council tax. I have said what that sum is, it is £370.90, I cannot decide, because I do not know, how much is due by way of additional costs of fees that have been incurred.
55. MR KINSLEY: My Lord, sorry, it is there in the document. It is there in the liability order, the order that they're seeking.
56. MR JUSTICE MITTING: I do not know what other additional costs and fees may lawfully have been incurred and I am not going to decide an issue without knowing what the facts are. Let us get on to the next claim, which is 2510/2008.
57. MR KINSLEY: Yes, my Lord. But my Lord, the court does need to put me under so much difficulty, because what if in a couple of days I receive a letter from --
58. MR JUSTICE MITTING: I am dealing with what might happen in the future. I have determined your claim. That is an end of it. I cannot do any more. I have one more claim to determine. Please proceed with that.
(Further submissions)
59. MR JUSTICE MITTING: In this judicial review the claimant challenges the decision of a District Judge sitting at Barnet Magistrates' Court granting an application for liability orders in respect of non-domestic rates for the years 2005/2006, 2006/2007 and 2007/2008 in respect of premises described in the demand and in the judgment as "shop and premises at 9 Varley Parade, London NW9". Liability orders were made in the sums of £1,055, £1,082.50 and £1,110 plus costs.
60. 9 Varley Parade is in a parade of shops. It now comprises a shop at the front, occupied by the claimant pursuant now to a direct lease with the head landlords, and an office at the rear of the shop to which access is gained by a door from the front at the side, and a yard from which a minicab business is run to the back of the office. The two sets of business premises, the shop occupied by the claimant and the office and yard, are now physically separate.
61. The issue which the District Judge had to decide was whether or not to make a liability order in respect of the hereditament shown on the rating list as "shop and premises, 9 Varley Parade, The Hyde, London NW9 6RR."
62. The claimant claimed that the shop which he occupied had been known throughout the period of his occupancy as 9B Varley Parade, and that consequently a demand for rates in respect of a shop and premises at 9 Varley Parade, The Hyde, did not relate to any premises for whose rates he was liable.
63. The office and the yard were occupied by Mr Bunsie. He had in fact, as a matter of history, sublet the shop to the claimant. By an arrangement made in 2007 Mr Bunsie surrendered that part of his lease which comprised the shop, and the claimant took a direct lease from the head landlords of the shop.
64. The claimant maintains, on the basis of a photocopy of a handwritten document dated 12th May 1999, that he paid £450 per month in advance inclusive of business rates to Mr Bunsie. As far as the local authority are concerned, that was of course a matter of private arrangement between the two and did not alter the liability (if any) of the claimant to pay business rates on the shop.
65. The District Judge, having set out the description of the premises in broadly the same terms I have, stated in his judgment that:

"... well before the financial years in question, the local authority recognised both the Record Shop and the mini cab office as separate entities for rating purposes and they were separately assessed as a result."

In that passage the District Judge appears to have treated the shop occupied by the claimant as the record shop and the minicab office as the office behind the shop, to which entrance was gained from the front by the side of the shop.

66. The claimant contends, if I have understood his submission correctly, that the record shop was not in fact his own shop, but was a shop included in what is now the office premises. He submits that there was no evidence upon which the District Judge could properly have made that finding. Alternatively, that the finding was so clearly erroneous as to amount to an irrationality or error of law, and so is capable of being quashed by me.
67. The claimant accepts that the District Judge had two pieces of evidence to permit him to reach a conclusion about the separate rating of the shop and the minicab office. First, he had the oral evidence of Mr Head, a senior officer of the London Borough of Barnet, that the office and the shop occupied by the claimant were separately rated. There has been produced to me an extract from the rating list for the year including 2005/2006, in which the following entries appear:

"Shop and premises 9 Varley Parade, The Hyde, NW9 6RR ratable value £2,500

Offices and premises R/O [clearly a reference to rear of] 9 Varley Parade, The Hyde, London NW9 6RR, the ratable value of which is £2,850."

68. In addition, the claimant put before the District Judge the new lease taken by him directly in 2007, which showed his shop and the office and yard distinctly drawn.
69. On the premise found by the District Judge that the shop and office and yard were separately rated, then, as the District Judge stated in his blunt conclusion:

"The reality is blindingly obvious; there is only one shop at 9 Varley Parade and therefore no possible confusion with other premises."

70. That was a conclusion which, on the evidence which he had, the District Judge was entitled to come to. He was entitled to accept Mr Head's oral evidence, supported as in fact it was by the rating list, that there were two premises separately included in the rating list, and that the premises occupied by the claimant were the premises described in the rating list as "shop and premises". It is irrelevant that in private documents — and, if it be the case, in entries in the Land Register — that the shop and premises described as being at 9 Varley Parade in the rating list are known as 9B Varley Parade. As the District Judge correctly observed, there is only one shop within this building and yard, and it is that occupied by the claimant. The District Judge was satisfied that the claimant occupied the shop and accordingly, on his findings as to the area of the building occupied by him, was liable for business rates on the shop.
71. A challenge by judicial review to the decision of a lower court lies only on a limited number of grounds: unlawfulness; want of jurisdiction; irrationality; failure to take into account material that should have be taken into account; taking into account material which should not have been taken into account; and procedural unfairness. The only possible challenge to this decision was irrationality or want of evidence. The decision on the evidence that the District Judge heard is clearly not irrational and there was no want of evidence, for reasons which I have given.
72. This claim accordingly cannot succeed. I dismiss it.
73. MR KINSLEY: My Lord, there are very serious issues from your decision today, because you (inaudible) accepted that the record shop is actually on the other side, that there was an error in what the District Judge come to — the area I occupied and the area the other side has occupied. So my Lord that's (inaudible) in multiple occupation. There is still a problem here.
74. MR JUSTICE MITTING: I have made my decision, rightly or wrongly. As far as I am concerned, that is an end of the matter. I now have to deal with any consequential matters.
75. MR CANNON: My Lord, two points, both on costs — well, three I suppose. The main claim, if I can call it that, the 2007 judicial review, I make no points about that. You have adjourned it and I do not need to say anything about costs at this stage on that. That leaves two, both of which have been dismissed. Both of those have been dismissed in effect substantively. They both got permission, the second one I think only as a matter of procedural ease, so as to get the matter heard today along with the others. Your Lordship will be familiar with the provisions in the case of Mount Cook.
76. MR JUSTICE MITTING: You have succeeded in substantive judicial review proceedings.
77. MR CANNON: My Lord, yes.
78. MR JUSTICE MITTING: The usual rule is that the loser pays.
79. MR CANNON: Indeed. The reason I preface it in that way is this. The two statements of costs I have in my hands, which have been served on Mr Kinsley, only deal with everything up to today's oral hearing, because my fee for today's hearing is a composite fee, concerning --
80. MR JUSTICE MITTING: I am afraid that time does not permit an examination of schedules of costs. I am only prepared to deal with your application in principle.
81. MR CANNON: In which case, my Lord, I ask the defendant pays costs of both of those — sorry, the claimant pays the costs of both of those applications.
82. MR JUSTICE MITTING: Yes.
83. Mr Kinsley?
84. MR KINSLEY: Yes, my Lord. Even though you found against me on the two matters, I am sure the court will be reasonable in dealing with the matter of costs. We have actually — on the first matter, we have actually had an acceptance by the other side that they did not act properly, my Lord. Of course, even though this court dismissed the first claim, 566, it still changed nothing. They have not won on that. All I owe them was £375, which was what I've always accepted to pay.
85. So, my Lord, it doesn't even bear thinking about, that this court will reward them in that, because, my Lord, there is also something that this court has to bear in mind. It's not just about me. (Inaudible) other people there who might not actually come and stand their ground and challenge this unreasonable behaviour, and they accepted it was unreasonable behaviour because the request to send a piece of paper to make payment, this, as we've gone through time and time again, was not the case which I say I'm not going to pay. It wasn't a case which I say, "I don't owe you that money or I don't have the money." It was simply a case to say, "Do what you ought to have done before." Of course I have issue in terms of the way, you know, some evidence were accepted, whether they ought to have or not. But of course I am accepting, you know, that you have made this ruling and without any doubt that I ask, my Lord, to seriously consider, if you are attempting to award the other side costs. Because they have costs already anyway, in terms of the costs which they got from magistrates, and then of course this matter took very little time dealing with. I mean, the 566 matter took a very little time. There was no hearing, you know, like in other matters. And again, my Lord, when this application was made, even though you found against me, there are various other orders there made by other judges, (inaudible). They didn't see this case as hopeless. In fact, my Lord, there are two --
86. MR JUSTICE MITTING: You have permission for both cases, but you have lost.
87. MR KINSLEY: Yes.
88. MR JUSTICE MITTING: I am not going to certify that they are wholly without merit because you were given permission.
89. MR KINSLEY: Yes, my Lord.
90. MR JUSTICE MITTING: But the usual rule in litigation is that the loser pays.
91. MR KINSLEY: But, my Lord, in making decision as to costs, as you rightly identify, this is a very unusual case. This case, my Lord, before the substantive hearing, before I made that payment, I wrote to the other side, this is not disputed, to say, "I want to pay". And my Lord you've already seen the letters there, if you want me to refer you to it again. I want to pay. All they have won today is £375, which I've always admitted that I am liable and want to pay, my Lord. So nothing have changed. In that respect, my Lord, they cannot rightly be awarded costs up to that, because they have won nothing other than what I offer them in the first place.
92. And of course I also wrote to them to avoid unnecessary waste of costs. They also admit that they made mistakes and of course, my Lord, I don't think there's anybody in this room actually listening to this case that would not say, shame on the respondent, the first respondent, in the way they actually pursued this matter. Any reasonable person would have expected them to send a payment slip, for a man who wants to pay.
93. So, my Lord, I will leave that issue on that. It will be really unacceptable by any standard for this court to go and make an order of costs in relation to case 566, by any standard.
94. Now the other matter will be the issue of business rate at 9 Varley Parade. My Lord, there are, of course, issues which I have with this order and I will have to sit down and think about it. But, my Lord, the decision you've made today — of course I will accept that this is a decision you've made — has put me under a very difficult position, where I am going to, wrongly, be paying council business rates which I shouldn't pay, paying for my own part and paying for the part of the other. But that's the decision of the court and I accept it.
95. But again, my Lord, when this application was made initially, and before it was made, I wrote to the other side to identify the status. And if this matter come back to the court, I believe the next time I will come I will of course have a document from the Valuation Office, which then show that, yes, look, now they have done it, because like I submitted to you, my Lord, they have not divided this property, although you did not accept that. But I hope next time I will be able to do that.
96. My Lord, of course when the initial application was made the permission was granted and, my Lord, it was granted without oral evidence, just looking at the paper, clearly show Honourable Mr Justice Plender that there is substantial issue, you know. There are issues that needed to be considered by a court hearing, my Lord, by — you mentioned earlier on, so this is not a case without merit. In fact the other side was of course restrained from enforcing the liability order.
97. This matter I think to award costs to the other side on this matter, again, it will be — it will be to reward them. This is a very unusual case. It's a very unusual case. A property that has been divided, internally has been divided but for rating purposes it has not been divided. The court believe that it has been separated and valued separately. It has not been. I have been in this position before, my Lord, and when I — before this I actually started this application, I raised this issue with you. I have been in a position where I was saying to you that this is not the case and maybe you had — and you did have doubt, but later on I have come back, like today I did come back to you to say that all these matters that you had doubts on this previous matter, I dealt with them, just like I said that I would. I will go to the Valuation Office and get a letter.
98. My Lord, can we at least, can I please actually beg you to suspend the issue of costs in this case and to suspend issue of enforcement in this case, until at least my enquiry from the Valuation Office; is this something that I can ask this court to do? Because in this economic climate, to actually impose on me to pay money which I know later on there is a possibility, there is a possibility that I will get the letter which will immediately confirm that this — I should not have been made liable, again that it put me in a very difficult position because you have already made a decision, and I am asking myself what do I do then, when I get this order? Is there any possibility that I can ask this court to suspend the enforcement, because this is not a matter that has dragged on for many years. It's a new matter that's just been heard. Can I please ask you to consider that, for deferring the issue of payment and deferring the issue of costs until we see again in relation to my enquiry with the Valuation Tribunal; can we? If you can --
99. MR JUSTICE MITTING: I have heard what you have said. The order that I have made is an end of this judicial review proceedings. It necessarily results in the discharge of any stays on lower courts' orders that may have been made. I have asked you to make your submissions on costs. I have heard them. Is there anything else you want to say?
100. MR KINSLEY: Yes, my Lord. Will you — the issue on costs, my Lord, that's what I want you to — can you please tell me, before you make the decision, is there a possibility that you can, for one moment, put a lid on it, give me a very little time to make the enquiry and to get the document which this court has not got?
101. MR JUSTICE MITTING: No, I have made my decision. The judicial review is at an end. Rightly or wrongly I have decided you have lost. In those circumstances I am invited to make an order for costs. The usual order for costs when someone loses is that they have to pay. You have made your submissions, I am going to make my decision.
102. MR KINSLEY: My Lord, if you — just final point, just final point, please. Of course the usual rule is the loser pays the winner, but there is also — the court also have power, under its general power to achieving the overriding interest — objective, and my Lord of course I have earlier on referred you to the rule. The parties — the court of course has to take into consideration, I have as an individual paid these proceedings privately all through and through. The other side has unlimited amount of public money and the issue which I have asked this court to look into is not a lost cause. That will be my final submission in relation to costs. I want you, please, my Lord, to take that into consideration.
103. MR JUSTICE MITTING: Thank you.
104. MR KINSLEY: There is nothing (inaudible) which you will award on the other side that will make any impact, but the amount of money which you award against me will make a serious impact, especially in this state of economic climate.
105. MR JUSTICE MITTING: Thank you. I am afraid that this is a case in which the claimant, having lost both sets of proceedings, must pay the defendant's costs, to be the subject of a detailed assessment if not agreed. My reasons for that are simply that the claimant has lost both sets of claims. It is not a relevant factor that it may cause him financial difficulty to meet the order.
106. I decline to stay or impose any inhibition upon the enforcement of the liability orders which the District Judge has made and which I have declined to quash.
107. Thank you.