England and Wales High Court (Administrative Court) Decisions

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

		CO/9362/2007 Royal Courts of Justice Strand London WC2A 2LL
		Monday, 1st December 2008

1. JUDGE BIDDER: This is an appeal conducted very ably, if I may say so, and I mentioned it on the previous hearing which was part heard but I will say it again, because it has been extremely ably conducted with a very scrupulously, comprehensive bundle by Mr Domblides in person, who though no lawyer could perhaps show many lawyers how properly to conduct a case in these courts. It is an appeal which must be on a question of law pursuant to regulation 32 of the Council Tax (Alteration of List and Appeals) Regulations 1993, which I will refer to as the '93 regulations, against the decision of the Wiltshire Valuation Tribunal of 17th September 2007. The tribunal dismissed his appeal from the respondent, listing officer's refusal to alter the valuation list in relation specifically to Mr Domblides' property, which is 40 Stickleback Road, Calne in Wiltshire. As an examination of some of the lists of properties indicate that is a property in an area where there are a number of streets which bear the names of fish. He initially contended to the listing officer that his property should be placed not in band F, the higher rate band for council tax, but in band E of the valuation list. Both parties presented evidence to the valuation tribunal but the valuation tribunal were not satisfied by the appellant's evidence, which was evidence of indexation of the current value of his new build property, and they dismissed his appeal.
2. I should first set out the framework on which a valuation is made and indeed the framework for the tribunal's decision, and the decision of this court. In setting that out, I am grateful for the careful exposition of the legal framework in the skeleton argument of Miss Leventhal, who appears for the respondent to this appeal. The statute which governs the valuation for council tax purposes is the Local Government Finance Act 1992. Billing authorities are required to collect council tax in respect of dwellings in their area and it is common ground that the appellant's property is a dwelling for the purposes of 1992 Act and is liable for council tax. Section 5 of the Act, to which I have been taken this morning by Miss Leventhal, provides that different amounts of council tax are to be levied in specified proportions in respect of dwellings in different valuation bands. The range of values for band E are those exceeding £88,000 but not exceeding £120,000; band F those exceeding £120,000 but not exceeding £160,000. It is very important to remember that when we are looking at those figures, the bands are intended to represent the value of the specific dwelling under consideration as at the relevant date, which relevant is 1st April of 1991 as specified by section 21 (2) of the Act.
3. By section 21 (1), the commissioners for Her Majesty's Revenue and customs are obliged to carry out such valuations as they consider necessary or expedient for the purposes of facilitating the compilation and maintenance of the valuation lists; that was a delegated function and in fact in England, but not in Wales, only one such initial valuation was conducted by the Valuation Office Agency. A listing officer is then appointed by the commissioners for each billing authority in England, the respondent to this appeal being the relevant one for this area, and his, for indeed it is a man in this case, duty is to compile, and thereafter maintain, the valuation list for the specific authority. The valuations are to be carried out by reference to the appropriate date, that is 1st April 1991, as I say, on certain specified assumptions and in accordance with any principles that are prescribed. The valuation list must show each dwelling in the billing authority's area and which of the valuation bands is applicable to the dwelling. It should be noted, and it is very important for the purpose of this appeal, that the Act does not require the valuation list to place a specified value on the dwelling; that was in distinction to the preceding regime of rating where specific values were placed on individual properties. The new system was meant to be cheaper and easier to work than the previous regime.
4. My attention has been drawn to Lord Justice Schiemann's decision in the case of Atkinson and Others v Lord [1997] RA 413 (CA) which may be convenient for me briefly to mention at this stage on that issue. His decision in the bundle is at page 128, but it is page 423 of the Rate of Appeals Reports for 1997. The headnote indicates that:

"Although the valuer was required always to have regard to the relevant amount and a failure to consider it would amount to making an error of law, he was not invariably required to determine the relevant amount, and in certain circumstances it could suffice if he determined that the relevant amount must lie in a certain range or be above or below a certain figure."

5. In other words, an individual valuation did not have to be carried out. Importantly also, although we are considering a different regulation, under the regulations the principle is the same: the regulation:

"Did not tell the valuer what valuation technique to use, and there was no legal error in the method of valuation in this case and it was not forbidden by the legislator, nor was it a method which failed to achieve the legislator's objective or resulted in any unfair treatment of the taxpayer."

6. It should be pointed out in this case that there is nothing in the regulations which prohibits the specific valuation technique that was adopted by the listing officer in this case; and it is at page 423, right at the end of Lord Justice Schiemann's judgement that that passage in the headnote is extracted.
7. Now by section 24 of the Act, the Secretary of State is empowered to make regulations governing the manner and circumstances in which lists, once compiled, may be altered. As I say there has only been one list compiled, it was compiled in accordance with section 22(2) on 1st April 1993, and that is the basic list to which comparison has been made over the years. The applicable valuation provisions and assumptions, to which I have made brief reference, are contained in the Council Tax (Situation and Valuation of Dwellings) Regulations 1992. Regulation 6(1) provides that the value of any dwelling, for the purposes of a valuation under section 21 of the 1992 Act, that is valuations for the purposes of this; and I quote from the regulation:

"shall be taken to be the amount which, on the assumptions mentioned in paragraph (2) and (3) below, the dwelling might reasonably have been expected to realise if it had been sold in the open market by a willing vendor on 1 April 1991."

8. Then there is a whole list of assumptions, which we need not trouble with for this appeal, are set out. Just to give examples, the sale of the property must have been a vacant possession, and that the interest that was sold must either have been the freehold or a 99 year lease; there is a whole series of assumptions that are made. Mr Domblides does not criticise the listing valuation officer for ignoring any of those assumptions or not proceedings on any of those assumptions. If those assumptions are made, the dwelling is then placed in one of the valuation bands.
9. I have already referred to Atkinson and others v Lord but it is worth simply quoting that Lord Justice Schiemann indicated in that case:

"(It is worth noting at this stage that, strictly speaking, the valuation officer was not concerned with establishing a spot value for the hereditament, which had been his traditional task in the rating regime, but with what was supposed to be a simpler and cheaper exercise namely placing the property in the right valuation band. Although in this judgement, I shall ... refer to this exercise as valuation, it is not valuation as normally understood.)"

10. When Mr Domblides pointed to the initial correspondence that he had with the listing officer and reference to valuation, he contended before me that when "valuation" is mentioned one would expect a valuation to be precisely what is carried out. It is to be noted that we are talking, although it is perhaps a matter of semantics, about a very different valuation than a specific valuation price being put on a specific property.
11. The regulation for the purposes of alteration to the valuation list under the 1992 Act, of course these lists are going to be changed from time to time, are the Council Tax (Alteration of Lists and Appeals) Regulations 1993. Regulation 4 sets out the limited circumstances in which an alteration of the valuation band as applicable to a dwelling can be made. Regulation 5 makes provision for an interested person to make a proposal for the band alteration of the valuation list, where they are of the opinion that the list is inaccurate. Mr Domblides is such an interested person as defined by Regulation 1, he is the owner of the property in question.
12. By Regulation 5 a proposal can be made within certain time periods and in certain circumstances only if:

"the listing officer has determined as applicable to the dwelling a valuation band other than that which should have been determined as so applicable."

13. There are regulations which prescribe the manner of making the proposals which are to be made to the listing officer.
14. Regulation 8 makes provision for the procedure where a proposal is found to be invalid, but where the listing officer is of the opinion that the proposal is valid, as in this case. If it was considered to be valid but is not well founded, again it is that in this case, and it is neither withdrawn by the interested person nor is an agreement reached as to an alternative alteration (agreement was not reached in this case I say in passing) the disagreement is to be referred to the valuation tribunal by the listing officer as an appeal by the proposer against the listing officer's refusal to alter the list, as that occurred in this case.
15. What should this Court's approach be on an appeal? An appeal must be mounted under Regulation 32 of those 1992 regulations. Regulation 32 (1) specifies that:

"An appeal should lie to the High Court on a question of law arising out of a decision or order which is given or made by a tribunal under these [1993] Regulations."

16. There is no appeal on questions of valuation of fact to the High Court. On an appeal the High Court has the power to:

"confirm, vary, set aside, revoke or remit the decision or order of the tribunal, and may make any order the tribunal could have made."

17. Now, in short, the respondent's submissions are that the appellant has not, in fact, identified an error of law and that his appeal is really, when one analyses it is either mistaken as to applicable law or confuses a disagreement with the factual basis of valuation with an error of law.
18. Now, let me turn to the respective evidence that was put before the tribunal. Mr Domblides, as he has here, represented himself, the listing officer was represented by a representative; I do not think it was the specific listing officer for the authority that appeared before the tribunal. The factual situation was that this property was newly built in 2006 and it entered the valuation list with valuation band F which was shown as attributable to it as of the appropriate date, that is but with effect of 20th December 2006. The appellant was both the first occupier and council taxpayer of the property and he completed a proposal for the alteration of the list. He sent that to the respondent and in that proposal he sought alteration of the list to valuation band E. He gave justification for that proposal; it was carefully investigated. Where he went was to the figures for house prices that are submitted to and published by the Office of the Deputy Prime Minister. If one goes to the website, which I suspect Mr Domblides did, of the Office of the Deputy Prime Minister, one can see year on year different valuations for house prices. He took figures from the National House Price Index published in 2003 for the South West region for new dwellings, and then using the price he paid for the property in 2006, he indexed it back. The calculation can be seen in his letter, and it is a simple proportionate sum, taking the relevant indexes and that calculation, that nobody doubts as being accurate as a calculation, gave a 1991 value of £17,224.53 which was within the band E reference.
19. It is also right, that apart from that fundamental evidence that was put in, he also orally told the tribunal that he had spoken to a number of estate agents, one of whom had been dealing with properties in 1991. That estate agent had indicated to Mr Domblides that in 1991 properties of a similar type had been selling for band E prices. Now, that is not a significant factor in this appeal because Mr Domblides accepts that although that was information that effectively perhaps put him on to a recognition that the listing officer's valuation was not an accurate one, there was no possibility of the tribunal being able to compare his property with those properties. It was a general statement by the estate agent and for that reason it is not surprising that the tribunal did not in fact specifically mention that evidence given by Mr Domblides. He mentioned in argument that he thought that it was because it was hearsay that they have not taken it into account. I am sure that that is not the case; what was the case was that they could not draw any specific comparison from what was very general, indeed more than general, evidence from the estate agent.
20. Now, the respondent having received the proposal from Mr Domblides accepted that it was a valid proposal but determined that it was not a well founded proposal and therefore the disagreement was referred, as I say, to the tribunal as an appeal and the tribunal heard the appeal on 16th August 2007. The respondent at the appeal relied upon four previous decisions of the valuation tribunal and one appeal that was withdrawn which related to what the listing officer contended were comparable properties in the area, also recently built, of similar size and the (inaudible). That evidence was set out in a schedule which can be found at the delightfully numbered page 23.5 and it is there set out. In columnar form, the addresses are set out; and in order to establish that one is looking at comparably sized and roomed, if I can put it in that way, properties, the accommodation is described in skeletal form in the second column: the type of house is described; the sale price is described, though that is perhaps not of great significance to the case; whether the property was freehold; sale date; and the band value. Then in the next column it is indicated whether that banding was confirmed by the valuation tribunal or not, in all cases it was and in another the appeal was withdrawn. I should indicate that the appellant's calculation, the indexing calculation, to which I have referred, can be found in the appellant's bundle at page 2.
21. The respondent not only put forward his evidence for placing the appellant's property in band F, but attacked the basis of the appellant's evidence of indexing. First of all, he referred to a whole series of decisions of the valuation tribunal going back to 1997, but decisions in 2002, 2004, 2005, 2006 and 2007, where the tribunal had, upon hearing evidence, concluded that indexing general surveys of house prices such as Mr Domblides act referred to in evidence, was not an accurate or acceptable way of valuing or placing an individual property in a band; and that can be found at pages 30 and 31. Secondly, two worked examples are given at page 31 which show the illogical effect that looking at what are general indexes can however, in a particular area, and effectively these indexes cannot be relied on to produce accurate open market sale levels. Now, those examples at page 31 do appear to me to be, although it is not my judgment about the weight of this type of evidence that is important but the tribunal's of course, but it appears to me that that was a telling example of how dangerous it was to rely upon indexation. It was entirely rational for the tribunal to take into account, as they did, that evidence in considering Mr Domblides' indexing evidence.
22. The tribunal's decision can be found, as far as the substance of it is concerned, at pages 39 and 40. They indicate what they have looked at, and nobody doubts that the last paragraph on 39 indicates that they had looked at the appropriate statutory or regulatory framework. First of all, I should go on to the account of evidence that they have, they noted that Miss Rimmer, who was the representative of the listing officer:

"put her presentation of evidence before the tribunal. It showed that a number of other houses of similar age, all detached, some three storey, others two storey, had been the subject of valuation tribunal hearings. In each case band F was contested, but all the appeals were dismissed. She contended for band F.

"Mr Domblides pointed out to the tribunal that there was no 1999 sales evidence put before it by the Listing Officer. He had discussions on this point beforehand. He said that by using the government's own index he had calculated the value of his property back to 1991 [that is the reference to the Office of the Deputy Prime Minister's material] and it showed that his property in band E. He accepted that the index was wide ranging covering the whole of southwest England, but it specified new houses. [He, himself, was accepting that that index of looking was very wide ranging and generic.] He contended for band E."

23. The reasons for the tribunal's decision were as follows:

"The tribunal noted that either party in this appeal had put forward any sales evidence in aid of their case. The Listing Officer relied entirely on previous valuation tribunal decisions, although these were not explained fully in tribunal, whilst the appellant relied on a wide range of index.

"In weighing up what it had heard, the tribunal decided that it had not had sufficient evidence from the appellant to upset the band ascribed. The previous valuation tribunal decisions do carry weight, but the evidence of a calculated value based of [based on, I think] such a wide ranging index is, in the tribunal's opinion, of little weight of proof of a value for banding purposes. The burden of proof lies with the appellant to prove his case and the tribunal does not consider that his case was sufficient to do that.

"In view of the above, the tribunal dismissed the appeal."

24. Let me now turn to the grounds of appeal which can be found attached to the Appeal's Notice, or at least they are meant to be the pages which immediately follow the Appeal's Notice in the white bundle prepared by the appellant. The first three grounds are in truth one ground and I will read them into the judgement. First of all, it is contended that:

"(1) The council tax band for a property is determined by law with reference to its value in 1991 [that, of course, is correct]. The basis of valuation for a dwelling is the amount which, subject to certain assumptions, 'it would have sold for on the open market by a willing vendor on 1st April 1991'. Changes to this valuation relating to size, layout, character and locality can only be applied after the basic valuation has been established.

"(2) At the valuation tribunal the Valuation Officer presented no evidence of value as at 1st April 1991 where as the appellant used the Government index Table 593 Housing Market: mix-adjusted house price index and inflation [that is the material extracted from the Office of the Deputy Prime Minister's side] by new/other dwellings, type of buyer and region, from 1969 onwards to establish a fair selling price given that with a dwelling of new construction there is no previous sales evidence upon which to base this figure and it is therefore reasonable to use statistical data to do so. In addition verbal evidence as to comparable selling prices of similar properties in the area in 1991, gained from visiting local estate agents, was presented. This was not challenged by the Listing Officers representative on the day and no reference is made to it in the written decision on the outcome of the appeal."

25. I have explained why it is now conceded that that must be the case, no one doubts that. In so far as it goes, the perfectly appropriate index was taken, Mr Domblides in his grounds explained why he took the particular index. Then:

"(3) By failing to present a valuation for the property the Valuation officer failed in his duty to comply with the law and having failed to provide any formal valuation had no basis for applying band F or any other band to the property in question."

26. It has been Mr Domblides' oral contention, in line with those in his written grounds, that there was no evidence of valuation properties put before the tribunal by the listing officer.
27. Now, the respondent in relation to that makes it clear, and I have already referred to a passage from Atkinson v Lord which supports this contention, that there is under the council tax regime no requirement for the tribunal to award a specific value to any particular dwelling, but simply to place the dwelling in one of the broad valuation bands. That was also considered, by both the court at first instance and the Court of Appeal, in the case of Stubbs v Hartnell (1996) unreported (HC), which has been referred to, in fact, by both parties to this appeal. The first instance judgement in Stubbs v Hartnell was a decision of Mr Justice Buxton in 1996 and a transcript of that decision is at pages 151 and succeeding pages in the bundle of authorities. At page 161 his Lordship said:

"There is nothing either on the face of their judgement or in what Mr Stubbs has told me that would suggest in any way that that was an unreasonable or an irrational conclusion on the matter of judgement. Bearing in mind that the tribunal is a specialist body, the intervention of this court would in no way be justified. Mr Stubbs has to accept that the power of this court to interfere with a decision on a valuation point by the tribunal is extremely limited and there is nothing in the material before me to suggest that that power would come into play in this case."

28. In other words, it is for the tribunal, a specialist body, to assess the particular evidence put before it and come to its own expert conclusion on the evidence that is put before. That matter went to the Court of Appeal and that decision of the Court of Appeal, decided in 1997, again I appear to have a transcript of that decision, that case involved the valuation of a houseboat that was moored to a piece of land. The evidence is summarised at page 165:

"The Listing Officer contended before the Tribunal that the dwelling was worth at least £115,000 (£65,000 pounds for the land and £50,000 for the houseboat), which valuation he supported with evidence of sales of smaller plots in 1992 and a smaller houseboat in 1995. So far as value is concerned, Mr Stubbs put the value of land at £27,725 and the boat, if relevant (which he contended it was not) at £10,000, the original purchase price."

29. There was specific evidence there, a point that Mr Domblides relies in this particular case, as there was actual evidence there of the valuation by purchase prices of the property in question.
30. At page 169, their Lordship's considered grounds of appeal.

"Under ground 5, he [the appellant] has asserted that no exact valuations were made by the valuation officer [which is the point that I am dealing with in relation to the first three grounds of Mr Domblides' appeal], the Tribunal or Buxton J in respect of property, the argument having been conducted in round figures the conclusion of the Tribunal, after its summary of the evidence, having been stated simply in the words that 'band E is appropriate for Fairway.'"

31. The Court then found:

"Having regard to the terms of the 'Reason for the decision', which recited the rival contentions of the parties as to value, along the lines already summarised, it is plain that the Tribunal accepted the thrust, even if not the detail, of the valuation officer's evidence, at least to the extent of finding that the minimum value of band E, namely £88,000 was exceeded as far as the site was concerned. There was evidence from both sides before the Tribunal in relation to that matter. It is plain that they were entitled to reach such a conclusion and there is nothing in that ground of appeal."

32. So the important matter when one is considering the first three grounds of Mr Domblides' grounds of appeal is that there is clear authority, and indeed it is entirely consistent with the regulatory regime, that what the listing officer and the tribunal are doing is not placing a specific value on an individual property, but placing it, so far as is possible, within a band which is a band of quite wide ranging values as of 1991. Of course there may be borderline, marginal cases where an individual valuation would have to be carried. This was not such a case.
33. Let me turn then to the evidence that was considered by the tribunal and therefore turn to the second criticism by Mr Domblides of the tribunal's decision; that is at number four at A3. He contends that:

"The Valuation Tribunal in accepting previous case outcomes without examining the evidence produced and without any valuation from the Valuation Officer acted in contravention of the law regarding the Council Tax banding of private dwellings.

"[He says] The only criteria for banding a property is the price it would have brought on the open market."

34. Now, the first point that I make is one that I have already referred to the case of Atkinson v Lord. This method adopted by the tribunal was not one that was prohibited by the regulations, which leave it to the specialist tribunal to determine what type of evidence it considers appropriate to do the exercising of placing a particular property in the band. Secondly, it is the case that over time valuation tribunals' decisions will shift from a consideration of individual sale prices, as they were in 1991, and will develop a body of case law which establishes that certain types of properties fall within bands. Thus, in relying on the later decisions, the tribunal is not relying on specific valuations; though it was specific valuations that underlay the subsequent decisions of the tribunal. This ressembles the accepted method of valuation known as relying on the, "tone of the list" and this is an appropriate valuation method that is supported by a reference to Ryde on Rating. Chapter 6 of this is set out in an extract in the bundle of legal authorities. The introduction at paragraph 481 is relied on and I quote:

"While it may be doubted whether reference to the assessments of comparable hereditaments is truly a method of 'valuation' [that was the initial complaint of Mr Domblides to which I have already referred] it is of necessity widely used as a means of ascertaining the rateable value of an hereditament where better evidence is lacking or in order to supplement other evidence."

35. The tone of the list is referred to at paragraph 483:

"The assessments of comparable hereditaments have become an important source of evidence. This was especially so under the 1973 valuation list (now called rating list) which remained in force for some seventeen years due to postponements of the requirement to prepare a new list. The term 'tone of the list' probably derives from the side note to the General Rate Act 1967, section 20. [This should obviously be recognised when dealing with the preceding system but the principle is perfectly applicable to this.] Since all rateable values in the rating list must be assessed at a common valuation date, the 'tone of the list' for a particular category of hereditament is the general level of value for that type of hereditament at that date. Assessments under appeal will carry less weight than assessments which are settled in the absence of the appeal or following determination of an appeal. [I stress the last phrase, these in the List Officer's list were following, four of them, determination appeals.] The weight to be attached to comparable assessments increases over time."

36. It is very important to note that the further away one gets from the 1991 list the more appropriate it becomes for the valuation tribunal or the listing officer to have regard, particularly in the interests of consistency, to the decisions of the tribunal. Mr Domblides in opening the case to me stressed the policy of the Act to ensure consistency of approach to different properties within a specific area. He is undoubtedly right in making the submission that the broad policy of the Act was to achieve that consistency. However what I do not accept is his submission to me that it is inappropriate for the tribunal or the List Officer to take account of previous appeals of the valuation tribunal in assessing whether a particular property is similar to those in previous appeals and thus falls within a certain band rather than another. In my judgement it is clear that it is permissible, certainly not prohibited, by the regulations and in my judgement permissible for the tribunal in assessing what type of evidence it considers to be appropriate, to take into account previous appeals of the tribunal itself; and indeed the further one gets from the appropriate date the more weight should, in my judgement, be given by the tribunal or listing officer to those appeals. Thus, in my judgement, ground 4 of Mr Domblides' grounds is an unsustainable one.
37. As far as ground 5 is concerned, he says:

"The Valuation Tribunal Decision stated that it lies with the Appellant to prove his case in relation to valuation however with no evidence of value being produced by the Valuation Officer and a robust case based on the Governments own statistical data and information gained from local estate agents in the immediate area being produced by the Appellant (which was not challenged by the Listing Officer at the Appeal Hearing) I believe the decision was wrong in law."

38. In this court he again, rightly as recognising the specific approach that had to be taken by this court, contended that the decision that I would have to determine is that the decision of the tribunal was perverse on the basis of the evidence. If one accepts, first of all, that the tribunal were entitled to accept the criticism by the listing officer of the indexation material; and secondly, as I have already found, were entitled in law to utilise the previous appeal decisions of the tribunal then it was a matter of weight for the expert valuation tribunal to determine which of those types of evidence to prefer. They were entitled to determine, without specific valuation of the individual property, that the schedule presented by the List Officer was the more reliable evidence; that was a matter of judgement for the tribunal, it cannot be described in my judgement as being perverse.
39. Thus, in my judgement again, paragraph 5, the main ground of appeal of Mr Domblides', cannot be sustained. In truth this appeal discloses no error of law by the tribunal. In that event, it is inevitable, it seems to me, that I should dismiss this appeal and I do. Thank you.
40. JUDGE BIDDER: Yes.
41. MISS LEVENTHAL: My Lord in light of your Lordship's judgement, we would ask that the order that your Lordship should make is, as your Lordship already has, to dismiss the appeal and to confirm the decision of the Wiltshire Valuation Tribunal of 17th September 2007.
42. JUDGE BIDDER: I dismiss the appeal and I confirm the decision of the Wiltshire Valuation Tribunal of 17th September 2007 and that is the summary of my order.
43. MISS LEVENTHAL: My Lord, I am grateful.
44. There is also an application on behalf of (inaudible) for the respondent's cost of defending this appeal; and my Lord Mr Domblides does have a copy of the schedule of cost. I do not believe --
45. JUDGE BIDDER: We strictly have been over two days, I can, of course, in all cases make a summary assessment of costs. I do not have to order that it should be assessed by means of a detailed assessment. It is not necessarily the case that I should order a detailed assessment whether as a litigant in person, though he perhaps will not be so familiar with the method of summary assessment as I certainly am and probably you are, that is not necessarily a reason why I should not.
46. First of all, let us deal with the principle of the matter first, let us deal with that and I will hear Mr Domblides on the principle. First of all, you say costs ought to follow the event and Mr Domblides has lost and therefore in principle he ought to pay the respondent's cost of the appeal.
47. MISS LEVENTHAL: Indeed and my Lord to add to that point as Mr Domblides will confirm, he was told of our intention to seek costs and the costs that will ensue in the correspondence from a very early stage.
48. JUDGE BIDDER: Yes, well, I have no doubt that he was told that in order to persuade him to abandon the appeal, but there is nothing wrong with that. In other words, he was told that there would be an application for costs should he loose. There are no offers or no suggestions that this matter should go to mediation or anything like that that I need to take into account in determining my principle decision understand CPR 44, are there?
49. MISS LEVENTHAL: There are not any offers, as it were, but there was a letter by those instructing me to Mr Domblides as early as December 2007 explaining why we considered that the appeal raised no error of law and that if Mr Domblides took the view that he (inaudible), at that stage --
50. JUDGE BIDDER: Yes, well he disagreed with you.
51. MISS LEVENTHAL: No, the important point is my Lord.
52. JUDGE BIDDER: Sorry, I beg your pardon I should not have (inaudible).
53. MISS LEVENTHAL: Forgive me, if Mr Domblides withdrew his appeal at that stage. It was at that stage that those instructing me would not seek to pursue costs again him and that was as early as December 2007.
54. JUDGE BIDDER: Yes, was that after you had filed a response to the grounds of appeal?
55. MISS LEVENTHAL: My Lord, may I just take --
56. JUDGE BIDDER: I mean what cost had you occurred at that that stage? If you had not incurred any costs at that stage it was a bit of an empty gesture, was it not?
57. MISS LEVENTHAL: Well, my Lord, I think that your Lordship is correct in the sense that we had not at that stage of the letter filed a respondent's notice so, of course, the costs would have been relatively minor.
58. JUDGE BIDDER: Yes.
59. MISS LEVENTHAL: There would nevertheless --
60. JUDGE BIDDER: But you had letters and there was a (inaudible).
61. MISS LEVENTHAL: We had.
62. JUDGE BIDDER: Anyway, you put him on notice.
63. MISS LEVENTHAL: And that is the only addition.
64. JUDGE BIDDER: Well, I will hear from Mr Domblides.
65. MISS LEVENTHAL: My Lord, thank you.
66. JUDGE BIDDER: On principle, Mr Domblides, let us forget about the amount at the moment, but on principle why should I not order that you, who have lost the appeal, should pay the cost of the appeal; that is a normal order that I would make. I would make it against a litigant in person, and I frequently do, of course equally, I make orders in favour of litigants in person when they do win; but normally that is the order one makes.
67. MR DOMBLIDES: My Lord, from the onset of this case I genuinely felt that there was no clear guidance on what should be done which would give indication to an ordinary member of the public, like myself, as to how the evidence should be produced, what was relevant, what could or could not be --
68. JUDGE BIDDER: In other words, you say that there is a public interest in bringing the appeal.
69. MR DOMBLIDES: Indeed, and I made that clear in a letter to the opposition and I offered to pay my own cost --
70. JUDGE BIDDER: Well, there is a method in cases which have a very specific public interest element, there is a method of obtaining a protective cost order under the rules and that method was not adopted in this case.
71. MISS LEVENTHAL: I was not aware of that.
72. JUDGE BIDDER: It requires really a considerable public interest element being taken by effectively a body on taking it on an almost charitable basis; that is not this case.
73. MR DOMBLIDES: No, I accept that, my Lord. I did make the offer and had I won I would have taken it up then and that would have been that. In the event that you make the order against me, my Lord, then I shall have no option but to pay.
74. JUDGE BIDDER: Well, on a matter of principle it seems to me right that I should order that the appellant should pay the respondent's costs of the appeal. This is a clear case of the successful party to this appeal being the respondent and there are no specific factors in favour of the appellant that in my judgement take it outside the normal rule.
75. Now, Mr Domblides, let us just pause now for a moment. If I can just look at the question of whether it is a summary assessment of cost or whether it is a detailed assessment. A summary assessment is done by me on the basis of a schedule of costs, a detailed assessment is sent to a district judge or rather a master, I take it, to assess the costs in detail. This case has actually spread over more than one day and I do not think I am obliged to carry out a summary assessment but I shall always look to consider whether a summary assessment is appropriate to save the parties the cost of the assessment. However, even if I were to make a detailed assessment, I would say that the cost should be subject to a detailed assessment if not agreed. It is always open to you to agree with the appellant as to the cost. I am going to hear from Miss Leventhal, if I may, about the basis of the assessment.
76. MISS LEVENTHAL: My Lord, we do not seek to press your Lordship either way. What I would say, however, is that although the case has gone over two days, it effectively has been done within a day of the court's time.
77. JUDGE BIDDER: It took about four and a half hours rather than the three hours and that was perhaps was due to the fact that Mr Domblides sought to take a point that was not in his grounds.
78. MISS LEVENTHAL: To that degree it is well within one whole day of the court's time. It may be that that will be a factor that your Lordship should take into account in considering that the summary assessment might be appropriate. There is also the argument that your Lordship, having heard the appeal and being well aware of the matter that Mr Domblides' has referenced, it may be that Mr Domblides, as it were, may consider that it is more appropriate for your Lordship to assess the costs, but we do not press, I do not think, your Lordship either way.
79. JUDGE BIDDER: Well, I am not making any special orders in relation to issues in this case. I mean if I were they would be against Mr Domblides because on the discrete issue which took up some time in relation to whether the grounds could be varied, he lost; so really he lost on all counts here.
80. MISS LEVENTHAL: Yes.
81. JUDGE BIDDER: So it seems to me that there are two reasons, I think, why I am reluctant to embark on a summary assessment. One is that it is a litigant in person and I think he will not be quite so familiar with taking apart a schedule of cost. Secondly, I have to say that this type of appeal is slightly unfamiliar to me to consider the preparation for it. I am very familiar with generally the preparation of civil cases, including appeals, but this has particular factors which perhaps a master would be more familiar with; and I have to say, it might be more in Mr Domblides' benefit that he comes before a master who may look more critically at the individual cost. In any event it is open to him, Mr Domblides, to agree the cost when he has had an opportunity to look at them.
82. Mr Domblides, have you received a schedule of cost?
83. MR DOMBLIDES: I have a schedule from Miss Leventhal --
84. JUDGE BIDDER: When did you get it?
85. MR DOMBLIDES: Several days ago.
86. JUDGE BIDDER: Several days ago.
87. MR DOMBLIDES: Which I agreed but I am not aware if there is any additional costs.
88. MISS LEVENTHAL: No. I mean Mr Domblides is correct, we did serve him with a schedule as early as we could and I think he had an opportunity to consider it and indeed discuss it with those instructing.
89. JUDGE BIDDER: Yes.
90. MISS LEVENTHAL: We do not seek to increase the cost schedule, although further time has been spent, we would not seek to increase it any further bearing in mind --
91. JUDGE BIDDER: Well, if that is the case and he had an opportunity to look at it maybe it would save time --
92. MR DOMBLIDES: I have no reason to question any of the figures on there.
93. JUDGE BIDDER: Then, I think that I will see it.
94. What I was concerned about is that these often turn up 24 hours beforehand and he would not have had an opportunity really to think about it.
95. MISS LEVENTHAL: Indeed, my Lord.
96. JUDGE BIDDER: This is obviously a significant matter and I do not think the grade of lawyer can be criticised here, so that is £200 an hour. Is that within the appropriate band, the practice band in the practice direction?
97. MISS LEVENTHAL: My Lord, I do not immediately know the answer to that question.
98. JUDGE BIDDER: I do not have a White Book immediately to hand. I just want to know that it is within the permissible band. I have no criticism of the grading used but what I am concerned about is that I should know what band it is, if it is Cardiff I would know, but as it is not, I do not. I am not simply taking Mr Domblides' courteous acceptance of it for granted.
99. MISS LEVENTHAL: No.
100. JUDGE BIDDER: I would like to know.
101. MISS LEVENTHAL: Indeed.
102. JUDGE BIDDER: While you doing that, I am going to look at the hours. You can carry on.
103. MISS LEVENTHAL: My Lord, it may be that the easiest way to find the bands is to have the form 260 which is the specific schedule statement of costs. I do not have a copy of the forms with me, my Lord, I do not know if you have the copy in court.
104. JUDGE BIDDER: Surprisingly, there is not a White Book here.
105. MISS LEVENTHAL: I have to say that given that the time charge is £200 per hour, it would surprise me very much if that were outside of the relevant band.
106. JUDGE BIDDER: It would me too. All right, I am content with that. I would like to look at a couple of points if I may.
107. MISS LEVENTHAL: Yes.
108. JUDGE BIDDER: First of all, attendances on counsel, 2 hours and 12 minutes. What specifically does it refer to?
109. MISS LEVENTHAL: Well, my Lord, my understanding, having been the counsel upon whom attendance was had, was that there was an initial situation whereby those instructing me were notified only of the appeal when it had entered the warned list; so there was an initial question of should we be a serving respondent's notice, what would be an appropriate way forward? Then attendances on counsel in relation to instructions on the skeleton argument, dealing with the skeleton argument --
110. JUDGE BIDDER: So they had to effectively prepare the instructions, they had to contact you and that took up the solicitor's time.
111. MISS LEVENTHAL: Certainly initially, I can say that there were not detailed written instructions, we had a discussion about the respondent's notice. Then, at the second stage, there were discussions in relation to the preparation of the skeleton argument because, my Lord as you will understand, this is a specialist area of law.
112. JUDGE BIDDER: Why is there such a long period claimed for attendances on court, 2 hours and 42 minutes?
113. MISS LEVENTHAL: My Lord, may I just take instruction on that point briefly.
114. JUDGE BIDDER: Please.
115. MISS LEVENTHAL: My Lord, I have been reminded, of course, that because we were notified of the appeal having been entered into the warned list, it was necessary to speak immediately to the court to find out what the documents were and where the papers had come from. Indeed, I am told that the first copies we got of the appeal and the documentary evidence was actually from the court, so that explains a need to attend upon the court and that took time.
116. JUDGE BIDDER: Well, that takes up the 42 minutes. What about the two hours?
117. MISS LEVENTHAL: My Lord, my understanding is that there were then further discussions with the court in relation to --
118. JUDGE BIDDER: I know that you have to keep in touch with the court as to what documentation should be appropriate and when listing should take place, I appreciate all that.
119. MISS LEVENTHAL: An additional matter does relate to the, "court and others". It was necessary to attend upon the valuation tribunal.
120. JUDGE BIDDER: I see.
121. MISS LEVENTHAL: They had been properly served --
122. JUDGE BIDDER: I understand that, yes. You had to see whether they were joining the appeal as well.
123. MISS LEVENTHAL: Indeed my Lord.
124. JUDGE BIDDER: Right, then there is a 14 hours and 30 minutes, "attendance of the documents". The bundle, as I understand, is Mr Domblides' bundles but, of course, you have to consider it.
125. MISS LEVENTHAL: That is correct.
126. JUDGE BIDDER: You have to read through it, make sure that there is no appropriate -- I know there was a degree of correspondence about that because we looked it up on the last occasion. Whose bundle is this?
127. MISS LEVENTHAL: The legal authorities bundle as prepared by those instructing me so that will account for some proportion of that. Indeed, as your Lordship has identified, it was necessary to ensure that we provided the court with full representations, as it were, of the legal position given we were dealing with a litigant in person. In terms of the bundle that Mr Domblides prepared we obviously very much congratulate him on his bundle itself, however, as you will have noticed from the correspondence there were matters that there were documents being entered into the bundle that we did not know about et cetera and there was a series of correspondence. It was necessary at ever stage to ensure we checked the documentary evidence that was put in and that we had to keep, as it were, reviewing the material to ensure that we were on the same page on the matters of what was admissible in the bundle and what was not. So there was some considerable input by those instructing me.
128. JUDGE BIDDER: I am sure there was but I have to say I have dealt with certainly more complicated cases with a lot more documents, or at least comparable documents, where nothing like 14 hours and 20 minutes have been expended. I am going to adjust that. My judgement is that a reasonable amount of time on the documents in this case, in so far as I can make a summary assessment, would be 12 hours. I am therefore going to put £2,400 in the right hand column.
129. Now, "other work not covered above," now that hides a multitude of sins.
130. MISS LEVENTHAL: Yes.
131. JUDGE BIDDER: What are we talking about? I do not like seeing, "other work not covered above".
132. MISS LEVENTHAL: My Lord, I shall just ask the question if I may.
133. JUDGE BIDDER: All right.
134. MISS LEVENTHAL: Thank you. My Lord, there is not anything specific to draw to your attention as to what was dealt with. It was dealt with as a matter of the criteria for what can be covered by miscellaneous or by other documents that is as far as I take that point. Clearly the attendances covered as above --
135. JUDGE BIDDER: I am not doubting that.
136. MISS LEVENTHAL: -- and it relates to that.
137. JUDGE BIDDER: That is a separate item, I am not criticising that at all. I am going to allow three hours. If you cannot specify it, I am not going to start allowing it. Let us just look then; I am happy with the rest. I am going to give Mr Domblides another go at this.
138. Yes, I think you have already reduced your claim fee to a round figure of £9,000 and I have to take that into account because it would be more on your specified fee.
139. JUDGE BIDDER: Right, this is meant to be a summary, it is not meant to be an absolutely detailed assessment. I am minded to say £8,100 as the figure for costs in this case; but I will give Mr Domblides an opportunity if he wants to persuade me to raise that figure or lower it.
140. MR DOMBLIDES: I certainly would not presume to ask your Lordship to raise it.
141. JUDGE BIDDER: Thank you very much.
142. All right, Mr Domblides then, I order that the appellant pays the respondent's costs of this appeal summarily assessed in the sum of £8,100.
143. MISS LEVENTHAL: My Lord, thank you very much.
144. JUDGE BIDDER: Thank you very much indeed.