England and Wales High Court (Administrative Court) Decisions

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

		Leeds Combined Court Centre The Courthouse 1 Oxford Row Leeds, West Yorkshire England LS1 3BG
		13th August 2013

HIS HONOUR JUDGE ROGER KAYE QC:

1. I have before me an application for judicial review, according to the form N461 of:

"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."

2. The dates of the relevant decisions are said to be, again according to the form N461, 6th December 2012 which was the date of the magistrates' decision in question of the 14th October 2012, although what the decision was on that particular last mentioned date is not explained.
3. The claimant is a company called Pall Mall Investments Ltd. There are two defendants to the application, Leeds City Council and Leeds Magistrates' Court. The application was lodged on 5th December 2012. It was initially lodged in London but in accordance with orders made by Hickinbottom J on 13th December 2012 and 7th January 2013 the case was transferred to Leeds.
4. Permission to make the application was granted on the 6th February 2013 by His Honour Judge Behrens on paper in the following terms:

"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."

5. Standard case management directions were also made by the judge on the same occasion and included in the order, including as to filing and serving of a trial bundle, skeleton arguments and a bundle of agreed authorities, together with the specified time limits by which those matters were to be done.
6. The background to this case is briefly as follows. The claimant is the owner or lessee (it is not entirely clear which) off warehouse property Unit 6, Phoenix Way, City Industrial Park, Bradford BD4 8JB, which I shall refer to as "the property".
7. The property was unoccupied and vandalised in 2011, leaving it in a poor and unoccupied condition. According to a chronology supplied only this morning by the first defendant, as a consequence of the vandalism the claimant applied for exemption from business rates which had become due on 1st May 2011.
8. A report was prepared from Fox Lloyd Jones surveyors showing dilapidations. The company applied for exemption from business rates on the grounds of non occupation, also on the grounds of the poor and unsafe condition of the property and, so far as relevant to this case, on ground 2 that the owner was "prohibited by law from occupying [the property] or allowing it to be occupied" within regulations 2(1) and 2(2)(b) of Non-Domestic Rating (Unoccupied Property) Regulations 1989 (1989 SI No 2261).
9. The council refused the claim for exemption and applied to the magistrates in February 2012 for a liability order against the claimant for non-payment of the business rates. On 3rd May the magistrates initially adjourned the application to 12th July, requesting the claimant to serve a skeleton argument opposing liability in 28 days. The claimant caused a report to be prepared by Martin Baxter Associates, which was sent to the council, noting the state of the property and its non-compliance with a number of applicable statutes.
10. By July 2012 the claimant had still not served the skeleton argument ordered by the Leeds Magistrates' Court and the case was adjourned by agreement, again to the 24th July. A still further adjournment was then granted, again at the claimant's request to the 6th September. Finally, 4 months after it had been ordered, the claimant served its skeleton argument on liability on 3rd September 2012, three days before the hearing.
11. The magistrates duly heard the case on 6th September. The single issue was that stated above, i.e. whether the claimant was prohibited by law from occupying the property. It appears that both sides had agreed that was the issue for determination.
12. Both sides made written submissions or presented skeleton arguments. Authority, namely Tower Hamlets LBC v St Katherine by the Tower Ltd [1982] Rating Appeals 261 per McCullough J was referred to. The magistrates made a liability order against the claimant for non-payment of non-domestic rates in the sum of £17,280 plus £60 costs. The claimant apparently immediately indicated to the council and to the justices' clerk that it proposed to appeal by way of Case Stated. The council agreed not to enforce the liability order pending the hearing of the appeal by way of Case Stated.
13. On 27th September 2012 the 21-day deadline for appealing decision of the magistrates under section 111 of the Magistrates' Courts Act 1980 expired. On 4th and 15th October 2012, wholly understandably, the council asked the claimant company for confirmation that a request to state a case had been filed, noting in their e-mail requests to the claimant that the deadline had passed. The claimant did not reply until 25th October 2012 by letter, stating that the demand for rates, which had no doubt in view of the non response of the claimant been made and received by the claimant would be challenged, as the matter was being appealed by way of Case Stated. On 2nd November 2012 the claimant again wrote to the council, stating that as the court had lost their application, they would apply for judicial review. I shall return to this correspondence a little later. The application for judicial review was not in fact lodged until 5th December 2012 as previously indicated.
14. Further, in fact as hinted at in the papers, it now appears that Leeds Magistrates' Court confirmed to the council, later, that in fact no request to the justices to state a case had been made within the prescribed 21 day limit.
15. The claimant company therefore now seeks to challenge the decision of the defendant, Leeds City Council, refusing the exemption for non-domestic business rates in respect of the property and the decision of Leeds District Magistrates' Court on 6th September 2012, granting the liability order to the Leeds City Council.
16. In so far as the latter decision is challenged the application for judicial review was, strictly speaking, in time, according to CPR 54.5(1)(b) by one day. In so far as the non-stated date of the decision of the council was concerned, on any basis this must have preceded the decision of the magistrates as indeed the council's helpful chronology confirms. Accordingly, that application was out of time with regards that decision. Notwithstanding the learned judge's decision to grant permission to make the application, he did not extend the time under CPR 54 but directed that the magistrates need not take any further part on the other hand.
17. Notwithstanding that, I have material before me, which enables me to deal with this case both procedurally and on the merits. I am, if I may say so, greatly assisted by the skeleton argument, recently filed by Mr Reed, on behalf of the Leeds City Council. It too was late but that the reasons for that are wholly understandable, given, as Mr Reed has told me, there has been little, if any communication with the claimant, no trial bundles, no skeletons argument, no authorities, no explanation whatsoever has been provided by the claimant to the defendant council.
18. The basis of the challenge to the decision of the Leeds Magistrates' Court and essentially therefore of course the basis of the challenge to the decision of the council refusing to grant the claimant an exemption from non-domestic rates was that both the decisions were wrong in law.
19. Before dealing with that I must deal with the procedural history of this matter. Procedurally the manner in which the claimant has handled the claim appears frankly to be inept. As a company it has chosen to act in person. It is perfectly entitled to do so but that does not entitle the claimant to any special privilege, exception or exemption. Indeed matters, for reasons I will explain in a moment, appear to have been handled by an in-house lawyer. But the pre-action protocol was not complied with in relation to the city council. No copy of the liability order was supplied to the court. No copy of the Magistrates' Court Register was supplied to the court with the papers. No copy of the relevant legal material was supplied by the claimant to the court with the application. The date of the local authority's decision refusing the exemption was not stated. The requirements of CPR Part 39.6 and PD 39A, paragraph 5 regarding companies representing themselves was not complied with, despite this being explicitly drawn to the attention of the claimant by an order of this court, dated 19th July 2013. None of the standard case management directions were complied with by the claimant, as previously indicated, in that no trial bundle has been filed or served on the defendants, no skeleton arguments have been filed or served on the defendants, no agreed bundle of authorities has been filed or even prepared and, as I previously indicated, still less any attempt to agree one made.
20. The substantive hearing was fixed for today, the 13th August 2013, and notified to the parties on the 12th June 2013. In fact the parties had already been notified on 27th March 2013 of entry into the Warned List. The ensuing listing chronology as noted by the court is revealing as to the organisational chaos that seems to exist so far as the claimant company is concerned. Following notification of entry into the Warned List in April 2013 the listing officer commenced efforts to fix the substantive hearing by liaison with in-house representatives for the claimant and with council's chambers on behalf of the defendant. The defendant, for these purposes being Leeds City Council, the Magistrates' Court following the order of His Honour Judge Behrens, taking no further step in the proceedings, although they did file a helpful summary grounds of defence and witness statement explaining the decision of the Magistrates' Court.
21. Two attempts were made in April to obtain availability of the claimant's representative. On each occasion the listing officer was informed by an employee, describing him himself possibly as "secretary" or something along those lines, that the in-house advocate himself would be required to provide a availability information and that that individual would return the call to the court office. No such return calls were received on either occasion. On 20th May 2013 the listing officer made a further and final attempt to obtain the claimant's availability. The listing officer was again informed that someone would return his call with dates of availability. No such return call was received.
22. On 11th June the substantive hearing was fixed on the availability of the defendant's counsel as being the only response the listing officer had received, the claimant's response being totally absent. Already the court was becoming concerned that the matter was becoming protracted, given this was a matter proceeding in the Administrative Court. Indeed several original potential dates for the hearing, by now, were becoming no longer suitable for the defendant due to the time that had elapsed since the listing was first proposed.
23. On 12th June, as indicated, the listing notification was sent to the parties. On 16th July, the very day the trial bundle should have been lodged, the claimants instead filed an application for an adjournment of the hearing, maintaining that it had been agreed with the city council.
24. The grounds on which the adjournment application, dated 11th July, were sought were as follows, in relation to paragraph 3 of the application notice which asked the question:

"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."

25. It will be noted specifically at this stage that no mention of the company secretary being the advocate had been made earlier other than as I have indicated, and no mention particularly had been made that he would be on annual leave, notwithstanding the attempts to obtain availability of the claimant's representative for the hearing. As the previous history indeed reveals, this was not the first time in the history of this matter that adjournments had been requested.
26. On 19th July the papers were placed before me. I refused the application for the adjournment, making the following observations:

"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."

27. In relation to the first of those matters it will be recalled that already and very rapidly the dates of potential availability were filling up owing to the court fixing dates for other litigants to have their cases heard.
28. Despite that order and observations nothing at all has been done to comply with the case management directions previously given, nor to comply with CPR 39.6. No explanation of the confusion of company names has been given. No letter to the court, stating what the claimant proposed to do has been given. No communication at all has been received from the claimant.
29. Indeed, this morning whilst the defendant city council has appeared, represented by counsel and supplied, as I have said, a succinct and helpful skeleton argument, at the last minute, due to force of circumstances, as indicated, the claimant has not even deigned to appear or give or offer any explanation.
30. From the acknowledgements of service provided by the defendants it appears there were two defences to the claim. First, that the company could have appealed by way of Case Stated within 21 days of the Magistrates' Court decision under section 111 of the 1980 Act I have previously mentioned, which I accept, but did not. In the circumstances the claimant should not now be permitted to seek a remedy by way of judicial review. Second, given the state of the property the claimant's case at its highest was and is on the evidence provided that occupation might be or is capable of being prohibited by law. It had not been demonstrated, it is submitted on behalf of the defendants, that occupation must be prohibited by law.
31. As to the first of these grounds the company was plainly aware of the 21-day rule. On 16th October 2012 the city council raised a charge of over £14,000 for non-domestic business rates against the company for the period April to October 2012, having had no response to its e-mails as previously mentioned. The company's response by letter dated 25th October 2012, response that is to the emails which as I said had specifically drawn attention to the expiration of the period for submitting a request for a Case Stated, was as mentioned, to say that the matter has been heard before the Leeds Magistrates' Court and "is being appealed by way of Case Stated". Notwithstanding that, the company wrote to the Leeds City Council again on 2nd November 2012, stating that the Leeds Magistrates' Court had lost their application and that "the quickest and most efficient way to deal" with the matter would be by judicial review. They did not reveal their non-compliance with the provisions relating to requests for Cases Stated. Notwithstanding that they indicated that judicial review was at least the "quickest" way to deal with the matter, the claim was not lodged until the 5th December 2012, hardly "promptly" as required by CPR 54.1(a).
32. There is no doubt that decisions of Magistrates' Court are amenable to judicial review. Textbooks indicate that generally applications for judicial review, where there is a right of appeal to the Crown Court by way of rehearing or by way of Case Stated will generally not be permitted, particularly where the dispute is one of law. For example, a recent text book by the editors John Auburn and others Judicial Review - Principles and Procedure (2013), states at paragraph 26.106:

"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 [2004] 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 [2004] EWHC 1800 (Admin), paragraphs 22 to 25, by the same judge.

33. In the first case there was a challenge to the making of an interim anti-social behaviour order made without notice and in which context the court identified four alternative remedies that were more suitable than a claim for judicial review.
34. In the latter case the claimant was notwithstanding allowed to proceed by way of judicial review even though the court took the view an appeal by way of Case Stated would have been more appropriate. That was because permission to apply for judicial review had already been granted because no acknowledgement service raising the availability of an adequate alternative remedy had been filed. The matter reached a substantive hearing and there was no prejudice to the defendant. However, the editors conclude in the paragraph quoted:

"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 [1998] 1 QB 110, a decision of the Divisional Court.

35. In the Brighton and Hove Case, which I have mentioned Stanley Burton J, at the paragraphs I have indicated, was clearly of the view that challenges to a decision as being wrong in law ought to be by way of Case Stated. As he said at paragraph 23:

"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."

36. In R (on the application of) P v Liverpool City Magistrates [2006] EWHC 887 (Admin), an appeal was launched by way of judicial review against a conviction of a mother for in substance failing to ensure her child attended school contrary to section 444(1)(a) of the Education Act 1996. The conviction was quashed. But Collins J said this at paragraphs 3 to 8 of the judgment:

"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."

37. In my judgment, this application is wholly without merit.
38. The application for judicial review, as it seems to me, in the absence of any explanation from the claimant and on material provided to the court, was simply a way to get round that which the company had apparently failed to achieve in the first place, namely a competent appeal by way of Case Stated against the decision of Leeds Magistrates' Court. As I say, no full or proper explanation of the history of the matter was or has been given by the claimant company and its failure to seek appeal by way of Case Stated. In any event the entire history of the claimants dealing with this matter is one of repeated delay and inefficiency, even the application for judicial review was not made promptly. Any misfortune therefore is entirely the responsibility of the claimant. It could, for example, have challenged by judicial review the initial refusal of the council as long ago as 2011 but failed to do so and was manifestly out of time to do so by the time it launched its application in December 2012.
39. As to the second defence the justices provided the following reasons for their decision:

"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."

40. The city council, both in its summary grounds of defence and in its skeleton argument before me has rightly reminded the court that the hearing passed off on legal argument. Indeed, there was only the single issue before the court. There was no issue of fact. This case had none of the merits that the Brighton and Hove case and the Liverpool case both gave for the court exercising the discretion it undoubtedly has to allow the matter to proceed by way of judicial review. Although, as I say, this is a case where His Honour Judge Behrens granted permission for judicial review, the non-compliance with the case management directions given by the judge as long ago as February, and the persistent failure to co-operate with the court procedures, subsequently tend to lead one to infer that this may well have been a means by which the claimant thought that it could defer its increasing and aggregating liability to pay rates to the city council.
41. Mr Simon Reed, in his succinct and very helpful skeleton argument, has set out, in my judgment entirely correctly, the reasons in slightly more detail why the Leeds Magistrates' Court was correct in its decision. I hope he will not think me discourteous if I do not go through those reasons in any detail in an already over long judgment simply to say that, in my judgment, the decision of the Magistrates' Court, for the reasons given, was entirely correct. The matter is not difficult, even though I have not heard argument from the claimant. As with all the cases of judicial review, there is at least sufficient material from the initial application and most particularly from the acknowledgements of service lodged by and on behalf of both the defendants in this case to enable the court to have a clear picture as to the issue of law between the parties.
42. Both these defences, in my judgment, are therefore for the reasons given sufficient to defeat this claim for judicial review. Nothing I have said should be taken as suggesting respectfully any kind of disagreement with anything that Stanley Burnton J or Collins J had said in the cases to which I have referred. The only difference in this case, as I have said, is that on the facts of the case, it was and is, in my judgment, now that there has been an opportunity to consider the matter in more detail rather than by way of paper review, the case is revealed to be one inappropriate for judicial review in substance.
43. There is not a shred of suggestion that the Magistrates' Court dealt with the case unfairly or improperly, merely that they reached the wrong decision in law on a factual basis as to which there was no dispute. The question turned on the phrase "is prohibited by law" in regulation 2(2)(b) of the 1989 regulations to which I referred earlier.
44. This makes it totally apposite for the case to have been appeal by way of Case Stated, which the claimant failed properly to pursue. In any event, as I have said, the case for judicial review was also not brought promptly albeit it was, as regards the decision of the magistrates just in time. The proceedings have now been going on for over 8 months and relate to periods going back to 2012, if not previous to that. The proceedings are old, stale and there is nothing in them, in my judgment, that renders the case for the claimant as so compelling as having regard to the overriding objective to deal with cases justly compels me to think that the justice in this case requires the case to continue indefinitely or until the claimant decides to appear.
45. For all these reasons the application will be dismissed.