QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
THE ADMINISTRATIVE COURT
1 Oxford Row
Leeds, West Yorkshire
B e f o r e :
(Sitting as a Judge of the High Court)
|PALL MALL INVESTMENTS LTD||Claimant|
|LEEDS CITY COUNCIL||Defendant|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr S Reed (instructed by Leeds City Council) appeared on behalf of the Defendant
Crown Copyright ©
HIS HONOUR JUDGE ROGER KAYE QC:
"Refusal by the Leeds City Council to grant an exemption of non-domestic business rates, refusal by the justices at the Leeds Magistrates' Court to consider the defence."
"1. The summary grounds filed by the first defendant raise two points.
(i) whether the claimant ought to have proceeded by way of Case Stated and is now precluded from proceeding by way of judicial review.
(ii) whether on the true construction of section 2(1)(b) of the Non-Domestic Rating (Unoccupied Property) Regulations 1989 the magistrates were entitled to hold that the claimant was not exempt from rates in respect of Unit 6. In my view both questions raise seriously arguable points.
2. The second defendant has helpfully set out the materials before the magistrates and the reasons for their decision. I should not myself think that they need take any further part in the application."
"What order are you asking the court to make and why?"
The claimant inserted as follows:
"That the hearing listed for the 13th August 2013 be adjourned. This application is by consent. The reasons are that the company secretary of the applicant is the advocate and will be on annual leave. Accordingly pre list to any date in October avoiding Fridays. As this company is owned by Orthodox Jews the month of September coincides with various Jewish festivals which happen to fall during the working week as opposed to weekends, including New Year, Yom Kippur and the festival of Tabernacles and accordingly no work may be carried out. However the following dates are available in September, 10th, 11th, 16th and 17th September. In the circumstances we humbly request an adjournment which has been agreed by consent."
"1. Although the application was by consent and the proposed adjournment agreed by consent, it must be recognised that there is a public interest element in all cases of judicial review. The court is not there just for the convenience of particular parties but also has other litigants to consider.
2. These proceedings also commenced on 5th December 2012 and have lasted over 6 months. No good reason for adjournment is given.
3. The applicant does not appear to have complied with CPR 39.6 and the relevant Practice Direction PD 39A (see para 5). While the CPR envisage and make provision for a company to represent itself, this is not an indulgence still less unlimited.
4. If there is to be further delay owing to the personal circumstances of the owners and the company secretary there is still more than sufficient time to prepare the case, especially if outside council and solicitors are engaged. Indeed in the circumstances there is no reason nor explanation why the case could not be handled by outside council and solicitors.
5. The matter is not assisted by the use of confusing company names. The judicial review claim is by Pall Mall Investments Ltd, the present application for adjournment is made by Pall Mall Investments (London) Ltd, which appears to be a wholly separate company and not a party to the judicial review proceedings."
"A defendant in proceedings before the Magistrates' Court will usually have either a right of appeal to the Crown Court [the authority is Magistrates' Court Act 1980, section 108] which will conduct a hearing de novo or an appeal to the High Court by way of Case Stated. [The authority for that proposition is section 111 as previously mentioned.] Those rights of appeal will usually be regarded as an adequate alternative remedy to a claim for judicial review of a decision of the Magistrates' Court."
There are a number of authorities stated in support of that proposition, for example R (on the application of) A v Leeds Magistrates' Court  EWHC 554 (Admin), at paragraphs 29 to 37, per Stanley Burton J and R (on the application of) Brighton and Hove City Council v Brighton and Hove Justices  EWHC 1800 (Admin), paragraphs 22 to 25, by the same judge.
"The court may be prepared to entertain claims for judicial review that raise allegations of procedural unfairness or bias on the part of magistrates."
Again, there are a number of authorities given for that proposition including R v Hereford Magistrates' Court ex parte Rowlands  1 QB 110, a decision of the Divisional Court.
"I nonetheless have no doubt that the appropriate procedure to challenge the decision of the justices of 28 May 2003 was by appeal by way of case stated. This is the normal procedure for challenging errors of law by justices. It has a number of advantages, not the least of which is that the discipline of a case stated normally ensures that the High Court has before it a statement by the justices of the issues they had to decide, the evidence before them, their findings of fact and the reasons for their decision. If the case stated is defective (because, for example, the justices' statement of their findings of fact is ambiguous), it may be remitted to them for amendment... The powers of this court on judicial review are more limited: it can quash the lower court's order and order it to make another order only if that other order is the only one properly open to it."
"3. The conviction in question was now a long time ago. In fact, it was on 9 September 2004. The decision was taken that an application for judicial review was appropriate rather than an appeal by way of case stated, the basis of the judicial review being that the court had misdirected itself in deciding that there was a burden of proof imposed upon the claimant to establish that she had reasonable justification for not ensuring the attendance of her son at school.
4. It was argued, and has since been argued, that that was a wrong approach. The argument goes further because it is submitted too that the decision that eventually was reached by the Justices was one which was irrational and in addition not only was there a misdirection as to the burden of proof but also as to the meaning of 'reasonable justification' in subsection (1A).
5. All those matters could, and in my view should have been raised by way of case stated. The normal route for an attack alleging error of law against a decision of Justices is case stated. The time limit for case stated is 28 days as opposed to the three months which is the maximum permitted for judicial review. It would generally speaking be wrong for that the time limit to be avoided by seeking judicial review in a situation where a case stated was in fact the appropriate remedy.
6. However, I recognise that there are some conflicting authorities, which do not make it necessarily easy to decide whether judicial review or case stated is appropriate in the circumstances of a given case. Judicial review is obviously more appropriate where, for example, there is an issue of fact which may have to be raised and decided and which the Justices cannot have decided for themselves.
7. Those rather cryptic observations are intended to relate to a situation where it is alleged that there has been unfairness in the way that the Justices conducted the case, obviously where for example it is suggested that there was bias in the manner in which they conducted themselves, or the defendant in question was prevented from properly putting his or her case, or the Clerk to the Justices interfered in a way in which he should not have interfered.
8. There are cases in the books of judicial review which cover that sort of situation. Generally speaking, where it is alleged that Justices have misdirected themselves or got the law wrong in their approach to a decision, case stated is the appropriate way of dealing with it. Generally speaking a failure to go by way of case stated in such a situation is likely to result in a refusal of permission for judicial review on the basis that it is the wrong way of dealing with it. However, I do not propose to refuse this application on the basis that it ought to have been by way of case stated, not least because permission was granted by Sir Richard Tucker as long ago as October of 2004."
"We take note of the content of the Tower Hamlets London Borough Council v St Katherine by the Tower Ltd QBD and also note this was covered by section 34(4) of the London Building Act 1939, which does not apply outside London. We note there is no legal precedent regarding the State of a property and prohibition to its occupation, even though penalties may be incurred under relevant legislation. The report by Martin Baxter does not change this. We note that over the period during which rates have not been paid on unit 6 Phoenix Way, no prohibition to occupation has been in place. The Act of Parliament in which introduced that unoccupied properties could incur rates did this in order to discourage owners from leaving premises unoccupied for long periods. Allowing properties to fall into disrepair in order to exempt them from rates is contrary to the intention of the Act. This argument is recognised in the Tower Hamlet case by reference to Bridge J giving judgment in Easy Work Homes Ltd v Redbridge London Borough Council 1970 RA 2277.223:
'The most attractive way in which it seems to me the argument of counsel for the rate payers is put is to invite the court to look at the mischief at which this statute was plainly aimed. Counsel submits that the object of the new provisions in effect was to penalise property owners who, to the detriment of the community, for the purposes of capital gain or otherwise keep their properties unoccupied for long periods when they might be providing useful accommodation which is so much needed. But it seems to me that consideration is to a large extent counter balanced by the counter argument advanced by counsel for the rating authority, but if the statute is to be construed so as to exclude liability under these provisions, in respect of property which for the time being is incapable of occupation, it would open to the door to widespread abuse, either it would be open to any property owner anxious to keep his property unoccupied for a substantial period of time simply to remove say, the sanitary fittings and part of the plumbing in order to be able to say the property was for the time being incapable of occupation.'
We accept that Unit 6 Phoenix Way is in poor condition but consider that if the property were to be let out then the necessary repairs will be part of a contract between the lessee and lessor. We are persuaded by the argument that an unoccupied property need not be kept in the state required for occupation but also think its poor state does not exempt the owner from rates for an unoccupied property. We therefore make a liability order with £60 costs."