England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		12 February 2013

JUDGE SYCAMORE: This claim arises from clerical errors made by the defendant, the Valuation Officer, on 14 August 2009 and 15 September 2009 in relation to the alteration of effective dates on the 2005 Non-Domestic Rating List ("the 2005 list").

1. It is important to remember that the valuation officers are independent of the local billing authorities. They are appointed by Her Majesty's Revenue and Customs and have a statutory obligation to compile, and then maintain, local non-domestic rating lists for the local billing authority.
2. The errors in this case arose from the inadvertent deletion from the 2005 list by the defendant of a property at Guide Lane, Audenshaw, Tameside, in respect of which the interested party, Brother International Europe Ltd, was liable for payment of non-domestic rates to the claimant. There was a neighbouring property, formerly the premises of HSBC PLC ("HSBC"), also on Guide Lane, Audenshaw, for which the interested party became liable in 2008, having acquired it from HSBC on 18 February 2008.
3. The defendant had adjusted the 2005 list to treat the two properties as one merged entry on the 2005 list. In so doing the defendant made an error, the effect of which was that as of 14 August 2009 the two separate entries for each property were deleted from the 2005 list and a single merged entry was created with effect from 1 April 2005. The defendant notified the claimant of the latter event on 19th August 2009. The list should have been altered to show an effective date for both the deletion of the two separate entries and the creation of a new entry for the merged property of 18 February 2008, the date upon which the interested party acquired the property from HSBC. The defendant accepts this was an error.
4. Subsequently, on 15 September 2009 the defendant, having been made aware by the interested party that the merged date was incorrect, altered the list by issuing a revised schedule, the effect of which was to create a merged date for the two properties of 1 August 2009, but made no alteration to the effective date of the deletion of the two separate entries which remained as 1 April 2005. That alteration and omission were further errors accepted by the defendant. In fact, the alteration should have been to show the effective date of deletion of the two separate entries as 18 February 2008 and the creation of the new merged entry also as 18 February 2008. If that had happened, the effective dates for deletion and creation would have been correct and there would have been no gap between the two.
5. On 16 September 2009 a schedule was generated by the defendant and transmitted to the claimant which reflected the alteration of 15 September 2009.
6. On 1 April 2010 the 2010 Non-Domestic Rating List ("the 2010 list") came into effect. It was agreed by the parties that from that date no proposals could be made to alter relevant entries in the 2005 list, and that from 1st April 2011 the defendant could no longer make alterations of his own accord capable of having retrospective effect.
7. In January 2012 CVS Business Rates Specialists ("CVS"), purportedly acting for the interested party, made a claim for a refund of rates paid by the interested party between 1 April 2005 and 1 August 2009. The value of the refund claim was £355,036.74. On 12 March 2012 the claimant wrote by way of formal complaint to the defendant. The defendant replied to that letter on 11 April 2012 explaining the error and that the defendant was not able to make further alterations to the 2005 list.
8. On 3 July 2012 the claim form in these proceedings was filed, joining Brother International Europe Ltd as interested party. On 26 July 2012 the defendant wrote to the court indicating that it would not be filing an acknowledgement of service and that it was maintaining a neutral position at that stage. On the same date Brother UK Ltd wrote to both the court and the parties indicating that CVS had acted outside its authority in intimating a refund claim and that the interested party wished to withdraw from the proceedings.
9. Permission was granted on the papers on 23 August 2012 by His Honour Judge Waksman QC, sitting as a Judge of the High Court; I will return to this presently.
10. On 30 August 2012 the interested party wrote to the court and to the other parties, notifying its withdrawal as an interested party and confirming its intention not to pursue the claim for a refund of rates from the claimant. On 18 September 2012 the claimant indicated that it nevertheless wished to pursue the claim.
11. The judicial review claim form described the decision to be judicially review in the following terms:

"Refusal to amend 2005 Ratings List to rectify inadvertent deletion of Brother International Europe Ltd's hereditament from the rating list."

The date of the decision was given as 11 April 2012, that being the date of the defendant's reply to the claimant's letter of 12 March 2012.

12. In granting permission, the judge made the following observations:

"1. Permission is not resisted nor could it be. A plain error on the part of the Defendant has led to an artificial rates 'gap' leading the Interested Party to seek a substantial refund from the Claimant to which in substance it is not entitled.

2. An e-mail has been received from a different Brother company, namely Brother UK Limited an e-mail dated 26 July asking that the Interested Party be removed. That is not appropriate at this stage because there is no application from the Interested Party itself (if Brother UK Limited claims to have its authority it will need to show this). However it appears that what is being said is that the Interested Party may be instructed not to pursue its claim for a refund in which case these proceedings will probably not be necessary. Hence the stay for 28 days for the parties to discuss matters."

13. As I have already observed, a few days later, on 30 August 2012, the interested party confirmed its intention not to pursue a refund of rates from the claimant, saying:

"Contrary to the statement made in the observations, Brother International Europe Ltd has never had nor has it any future intention of making any claim to Tameside Borough Council for a refund of Rates to which it is not entitled…."

14. As I have observed, the decision in respect of which the claimant sought permission was that of 11 April 2012. As proceedings were issued on 3 July 2012, on its face the claim was commenced within three months of the decision. The parties agreed that the defendant was not permitted to alter the 2005 list, and as such the refusal of 11 April 2012 was lawful and not susceptible to challenge. The claimant conceded in its skeleton argument that "... the Defendant rightly points out that its powers under the statute would not permit it to amend the list now ..." That concession was not known to the judge when granting permission. That permission is thus now rendered otiose.
15. The claim which the claimant sought to advance before me was in a very different form to that for which permission had been granted. The relief sought appeared in the claimant's skeleton argument in the following terms:

"... a declaration in the present case to the effect that the deletion of Brother's property from the list was in breach the Defendant's statutory duty and of no effect..."

16. In discussion with counsel, I made it clear that the permission granted did not cover the case which the claimant sought to advance. I agreed to deal with the matter effectively as a "rolled-up" hearing and to deal with the question of permission, and if granted to proceed to deal with the substantive issues. It was agreed that the claimant would lodge an amended claim form over the short adjournment dealing with the case which was now sought to be advanced. That was done and the decision in respect of which permission was sought was described in the following terms:

"The unlawful and inadvertent deletion of Brother International Europe Ltd's hereditament from the rating list for the period 1st April 2005 to 1st August 2009 taking place due to errors committed by the defendant on or about 14th August 2009 and 15th September 2009."

17. It was part of the claimant's case that the claimant was unaware of the amendments made in September 2009 and that this was a good reason for extending the time limit, which on any view was clearly long passed. I remind myself that in proceedings for judicial review the relevant date is the date when the grounds arose, not the date of the claimant's knowledge, although the claimant's state of knowledge may be relevant when the court is considering the proviso in the second part of part 53 rule 4:

"... unless the court considers that there is good reason for extending the period within which the application shall be made."

18. It seems to me that the principal issues for consideration in determining whether permission should be granted are in relation to whether there is any public interest in allowing this matter to proceed when it is on its face manifestly out of time, and whether, if so, to what extent this is attributable to the claimant's failure to check the paperwork sent to it by the defendant in September 2009. Secondly, there is a statutory scheme provided to correct this sort of error. Third, it is unclear what the effect of the relief which is now sought by the claimant, the grant of a declaration, would be as if such a declaration was granted, the 2005 list would still be wrong. Fourth, the extent to which the claim can now be said to be academic, given that the interested party has made it clear that it no longer intends to pursue the claim for a refund of rates.
19. Much of the argument before me focused on whether the claimant was or should have been aware of the errors from the information before it. It was pointed out that CVS only had access to publicly available information in identifying the error, but they did not have access to any information that was unavailable to the claimant. The claimant's case was that it did not become aware of the deletion for the period between 2005 and 2009 until January 2012 when it was contacted by CVS. It is clear from the documents produced that the schedules provided demonstrate that the defendant did communicate that information to the claimant. As Mr Pearce of the defendant said in his second witness statement:

"Irrespective of the cause of the error, all billing authorities receive schedules notifying them of list alterations carried out by their valuation officers in the same form as those received by Tameside MBC. Proper examination of those schedules by personnel at the billing authority should have identified the mistakes."

It was suggested that incompatibility of computer systems may have had a bearing upon the claimant's ability or otherwise to interpret and act upon the information provided by the defendant. Notwithstanding this, it is clear, for example, that having received the schedule on 16 September 2009, the claimant did react to the receipt of that information by updating the separate property reference in its own property notebook and made specific reference to the schedule generated on 16 September 2009 by the defendant by quoting the defendant's schedule reference number, which was 214. It should have been apparent from schedule 214 that the second errors, those of 15th September 2009, had been made. Indeed, the claimant's own screen shot, which was copied in the trial bundle, indicates the gap in the 2005 list:

"23.09.2009	Date of merger revised to 1/8/09 as per SCH214	David Thomasson
21.08.2009	Prop (taken out of ratings) wef 1.4.05 as a result of merge with A061000301 to create K061000311 as per SH210"	Serena Powell

As I observed earlier, the interested party had noticed the first errors, those of 14 August 2009, and had contacted the defendant to correct them. As I have pointed out, CVS had identified the second errors and contacted the claimant to request a refund of rates on behalf of the interested party.

20. In my judgment, given the public interest in protecting public bodies from stale claims and the fact that the claimant should have been aware of the errors and their impact, and also bearing in mind that the interested party has indicated that it is not pursuing a refund of the business rates, I am not satisfied that the claimant has demonstrated that there is a good reason to extend time - in this case almost three years at the time of issue - to bring a claim for judicial review and I refuse permission on that basis.

Although it is not strictly necessary for the purposes of the permission stage, I nevertheless proceed to make some observations in respect of the three remaining principal points which I identified earlier.

21. The Non-Domestic Rating (Alteration of Lists and Appeals)(England) Regulations 2005 and 2009 describe a statutory scheme with strict time limits which enable billing authorities such as the claimant to make proposals to correct errors such as the second errors which occurred in this case. The effect of the strict time limit, as I have already observed, is that from 1 April 2010 no proposals could be made to alter the relevant entries in the 2005 list, and from 1 April 2011 the defendant could no longer make alterations of his own accord capable of having retrospective effect.
22. Thus, had the claimant identified the error prior to the 2005 list closing, it could have either made a formal proposal within the strict time limit, which would have led to the defendant's acceptance and consequent correction of the list, or it could have notified the defendant, who could have made an alteration to correct the error. It was common ground that by the time the claimant contacted the defendant it was too late for any such alteration to be effective.
23. Given that judicial review is regarded as a remedy of last resort, I also take the view that had the claim been in time, permission would in any event have been refused on this basis as the claimant had available and should have pursued the alternative remedy provided by statute. It is simply not open to the claimant to seek to go outside the remedy which Parliament has provided.
24. I also consider the question of the extent to which the court could, had permission been granted, provide a remedy to the claimant. It is unnecessary in the determination of the permission application, but I observe that simply quashing the second errors would leave the first errors in place, thus recording the merger as having taken place from 1 April 2005, three years before the interested party took over as occupier. If the first errors were also quashed, then the merger would no longer be recorded on the list. Although the claimant produced a draft order, I have difficulty in determining, should permission have been granted, how the court could have done more than simply quash the errors, which, for the reasons I have explained already, would result in a complete removal from liability to rates. It is unclear to me how there could be a direction to make the correct entry on the 2005 list with retrospective effect when such a step would be outwith the scope of the 2005 and 2009 regulations.
25. Finally, as I have already indicated, the interested party has made it clear that it no longer intends to pursue a claim for repayment of rates. I consider the question of the extent to which the claim can be said to be academic. Again, had it been necessary, I would have refused permission on this basis as well. Significantly, the interested party has withdrawn the claim intimated on its behalf by CVS, who the interested party says, was acting outside its authority. It was envisaged when the original permission was granted that the proceedings would probably not be necessary should the interested party decide not to pursue a claim for refund of rates. In the event that is what has happened. The claimant suggests that there can be no guarantee that the interested party could not revive its claim at some later stage within the limitation period, but acknowledges that such a claim may be unlikely to succeed where it has previously been disavowed. I agree, and so to that extent the claim is academic. Furthermore, says the claimant, the problem identified in this case is far from uncommon and has resulted in this claimant and other local authorities paying out sums of public money by way of refund. In those circumstances, the claimant submitted, there was a public interest in the matter proceeding and being adjudicated upon for the benefit of the claimant and other billing authorities. The fact of the matter is that the claimant is no longer at risk of being required to repay a significant sum of money to the interested party in these proceedings. That is what this application for judicial review was about. I have already indicated that I am not persuaded that there is any appreciable risk of the claimant having to make such a repayment to the interested party in the future. There is no basis for saying that to allow this matter to proceed would be in the public interest. The claim is concerned with the specific circumstances relating to the claimant and the interested party. Whether another billing authority chooses to launch a challenge in similar circumstances on another occasion is a matter of speculation.
26. As I indicated, I have treated this matter as a rolled-up hearing. The claim which the claimant sought to advance before me is of a very different nature to that in respect of which permission was originally granted. It was manifestly out of time and there is no public interest in allowing the claimant to bring such a late claim. In those circumstances permission is refused.