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Noble & Ors v. Assessor for Grampian Valuation Joint Board [2003] ScotCS 310 (12 December 2003)

LANDS VALUATION APPEAL COURT, COURT OF SESSION

Lord Justice Clerk

Lord Philip

Lord Clarke

XA44/03

OPINION OF THE LORD JUSTICE CLERK

STATED CASES

in the

APPEALS

JOHN H NOBLE and OTHERS

Appellants;

against

THE ASSESSOR FOR GRAMPIAN VALUATION JOINT BOARD

Respondent:

(Subjects: 17 Hotels in the Valuation District of Moray)

_______

For appellants: Haddow QC; Simpson and Marwick WS

For respondent: Doherty QC; Bennett and Robertson

12 December 2003

Introduction
[1] These are 17 appeals against a decision of the Moray Valuation Appeal Committee dated 13 November 2002 to refuse a continuation of the appellants' appeals and to dismiss them, and a decision of the Committee dated 5 December 2002 not to recall its earlier decision.

[2] These are appeals against entries made in the Valuation Roll for the Moray valuation district in the 2000 Revaluation. All of them relate to hotels. By the date of the appeal hearing in this case, 146 out of 165 hotel appeals in the Grampian valuation area had been settled by negotiation between the assessor and 21 firms of chartered surveyors. Two other cases had been continued. One of these was an Aberdeen case which was continued to enable the professional agent to obtain his client's instructions and in which settlement was expected by both sides. The other related to the Loirston Hotel, Ballater, in which the appellant's agent, Mr Peter Henry FRICS, was unavailable on the date fixed for the hearing.

[3] That left the present cases, in all of which Mr Henry represented the appellants. Apart from Mr Henry's cases, therefore, there had been virtually complete acceptance in the Grampian valuation area of the assessor's approach.

The 1955 regulations
[4] Regulation 8 of the Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995 (SI No. 572) (the 1995 Regulations) provides inter alia that where an appeal has been made to the Committee, the secretary shall issue to each party a notice for the hearing of the appeal by the Committee.

[5] Regulation 9(3)(b) provides inter alia that the committee may at its discretion consider any request for postponement of a hearing made by a party and representations by the other party as to that request and, if it thinks fit, postpone the hearing.

[6] Regulation 10(1) provides inter alia that an appellant shall, not later than 35 days before the date set for the hearing, furnish to the assessor a written statement specifying (a) the grounds of appeal; and (b) if the appeal relates to the valuation entered in the valuation roll, the valuation which the appellant considers should be entered in the roll and the grounds on which that valuation is arrived at. Regulation 10(3)(a) provides inter alia that if an appellant fails timeously to furnish the statement required under paragraph (1), the assessor may apply to the Committee to have the appeal dismissed and the Committee may grant that application if it thinks fit. Regulation 10(4) provides that "the appellant may within 14 days from notification of a decision to dismiss the appeal under paragraph (3) ... represent in writing to the Committee that there was reasonable excuse for the failure which led to the dismissal and the Committee may, if satisfied that there was such excuse, recall the said decision ... " Regulation 10(5) provides that either party to an appeal may, not later than 21 days before the date set for the hearing, furnish to the other a list of the comparisons on which he proposes to found and at the same time make a written request to the other to provide him with a similar list not later than 14 days before that date.

[7] Regulation 15(1) provides that if an appellant fails to appear or be represented at the hearing of his appeal, the Committee may dismiss the appeal. Regulation 15(2) provides, in similar terms to regulation 10(4), that where the Committee dismisses an appeal, it may recall that decision if satisfied, on a representation in writing to that effect, that there was reasonable excuse for the appellant's absence.

The procedural history
[8] On 26 June 2002 notices in all of these cases were sent to Mr Henry intimating that the hearing had been fixed for 30 October 2002. The notices were in standard form. In accordance with generally accepted practice, they were posted by the assessor on behalf of the secretary to the Committee; but they ran in the name of the secretary himself. Mr Henry had received notices sent in this way in previous cases and had taken no exception to them.

[9] By letter to the assessor dated 7 July 2002 Mr Henry said that he understood that there was a possibility that the appeals fixed for 30 October would be continued to a later hearing in view of the fact that "national negotiations on the hotel valuation method" had not been completed, and in the case of Lothian not even started. He requested confirmation of that position. By letter dated 9 July 2002 the assessor replied that he would not support a motion to postpone the hearing of the appeals because he believed that general agreement should be within reach on both a national and local scale before October.

[10] By letter dated 6 August 2002 the assessor notified Mr Henry that because of unforeseen circumstances the date of the hearing had had to be changed to 13 November 2002. He said that the secretary to the Committee had asked him to advise Mr Henry of the new arrangements for the hearing.

[11] By faxed letter to the assessor dated 10 October 2002 Mr Henry intimated his grounds of appeal, which were in general terms, and his alternative net annual values. He said that his comparisons would follow shortly. He asked the assessor for a note of any comparisons to which he might refer at the hearing. He concluded as follows:

"I confirm that I intend to proceed with these appeals at the hearing on 13 November unless they have been settled by negotiation prior to the hearing date."

In the event, Mr Henry failed to intimate any comparisons.

[12] By letter dated 21 October 2002 the assessor acknowledged receipt of Mr Henry's "belated letter of 10 October 2002" and his proposed valuations. He asked Mr Henry to note that in accordance with regulation 10(1)(b) of the 1995 Regulations he was also required to specify the grounds on which his valuations were arrived at. The assessor requested that that information should be submitted within seven days. Notwithstanding Mr Henry's failure timeously to comply with that regulation, the assessor sent with his letter a statement of the grounds on which the entries in the Roll had been arrived at.

[13] By letter dated 31 October 2002 the assessor again asked Mr Henry to specify the grounds upon which his proposed valuations had been arrived at, this time by return.

[14] By faxed letter dated 4 November 2002 to the secretary to the Committee Mr Henry said that there had been three recent meetings with representatives of the Scottish Assessors' Association (SAA) regarding the hotel valuation method for the 2000 Revaluation; that it appeared that following these discussions there might be some movement on the assessors' valuation method; that a further meeting was planned to try to come to an agreement on the matter, but that that was unlikely to be resolved before 13 November. He therefore asked if the appeals listed for that date could be continued to a later date.

[15] On 6 November 2003 the secretary to the Committee received a letter from the assessor setting out his detailed reasons for opposing Mr Henry's request. On the same date the secretary to the Committee replied to Mr Henry by fax and post as follows:

"I understand that the Assessor opposes any request for a continuation of these cases. Accordingly, you would require to be or [sic] properly represented at the Hearing as cited (the relative Citations having I understand been sent direct to you as Agent for the Appellants), in order that the Committee decide on whether a continuation will be granted or not. In the event of your request being refused you will, of course, appreciate that the Hearing on the Appeals would then proceed."

By faxed letter dated 7 November 2002 Mr Henry replied inter alia as follows:

"In view of the position regarding the national negotiations not being finalised; and with the possibility that the valuation scheme might be changed: I am disappointed that the Assessor is opposing my first continuation request in respect of these hotel subjects.

In similar circumstances in recent weeks; continuations have been agreed in Ayr; Argyll & Bute; and Glasgow. For information; I send you a copy of a letter dated 1 November 2002 from the Argyll & Bute Assistant Secretary, Mr. Alan Urquhart.

I have a professional responsibility to take care of my hotel clients in Moray; and consider that I would be failing in that responsibility to settle or present their appeals before any national agreement had been determined.

In view of the above; you may not be surprised to learn that I do not relish a four hour journey to Elgin on the 13th, and a four hour journey back to Edinburgh, to put the self same points which I put in my letter of 4 November, and above.

In all these circumstances, I write to advise that I do not propose to be present at the hearing on the 13th, and trust that the Committee will exercise its judgement in the matter, and allow my continuation request."

By letter of the same date the secretary to the Committee replied by fax and post as follows:

"The position with regard to these Appeals must remain as stated in my letter of 6th inst. We note that in the copy of the letter which you sent us, it is indicated that the continuation is by agreement of parties, which is absent in the above cases. You will appreciate that if you are not present or represented at the Hearing this may prejudice your request for a continuation."

By faxed letter dated 12 November 2003 to the secretary to the Committee, Mr Henry said inter alia that since public houses and hotels were always valued on percentage or percentage of adjusted turnover, there was no need to specify "valuation grounds." That was the first time that Mr Henry had raised this point. Mr Henry also referred to a further appeal in which the local committee had allowed a continuation, namely the Loirston Hotel appeal to which I have already referred. In citing that continuation Mr Henry was uncandid, as counsel for the appellants accepts, because the reason for that continuation had nothing to do with the SAA negotiations. By faxed letter dated 12 November 2002 to Mr Henry the secretary to the Committee said:

"The Committee are meeting tomorrow to consider your Motion for a continuation and all relative papers will be placed before them. You will be advised of the position in due course."

The appeal hearing
[16] On 13 November 2002 the Committee met at Elgin to hear these appeals. The assessor was represented by his depute, Mr Ian H Milton, MRICS. Mr Henry did not appear. Mr Milton gave evidence on oath. He spoke to the correspondence with Mr Henry. He described the background to the appeals and to the general progress of the Revaluation so far as it affected hotels. He described how the SAA produced recommendations for valuation in various subject areas at each revaluation in consultation with representatives of ratepayers in those areas. He argued that, despite the SAA recommendations, the Grampian assessor's values, based on firm rental evidence, had secured almost complete acceptance by the professional agents. He concluded that in these circumstances the national discussions had no impact so far as Grampian was concerned. Mr Martin also pointed out that while Mr Henry himself had been involved in the discussions with the SAA working party on licensed premises in relation to public houses, he had continued to challenge the assessors' scheme of valuation for public houses after those discussions were concluded.

[17] Mr Martin then commented on Mr Henry's failure to appear and on its disruptive effects, and particularly on its impact on the timetable for the remaining revaluation appeals in Grampian. He referred to regulation 15 (supra) and to the lack of any basis of a case to answer, and moved for dismissal of the appeals under regulation 10(3) if dismissal under regulation 15 should not be acceptable.

[18] The Committee refused to continue the appeals and dismissed them. Its reasons were, in brief, that no reasonable excuse had been given for Mr Henry's non-appearance; that the appellants had, without reasonable excuse, failed to comply with regulation 10(3) (supra); and that the fact that 147 of the 165 appeals listed for similar subjects in the Grampian valuation region had been resolved by negotiation indicated to it that the general approach of the assessor to the valuation of similar subjects was fair and reasonable. By letter dated 15 November 2002 the secretary to the Committee intimated the Committee's decision and its reasons.

The request to the Committee to recall its decision of 13 November
[19] By letter dated 19 November 2002 to the secretary to the Committee Mr Henry requested the Committee, in terms of regulation 15(2) of the 1995 Regulations, to recall its decision on the basis that there was reasonable excuse for his absence. He said that this was the first continuation request in these cases and that other Committees had granted continuations in similar cases. He referred inter alia to the valuation method for the 2000 Revaluation and to the unresolved discussions with the SAA; to the continuations of other similar appeals in other valuation areas; and to there being no need in terms of regulation 10 to specify valuation grounds. In this letter Mr Henry for the first time raised the point that the notices issued for the original diet of 30 October were invalid as being contrary to regulation 8 of the 1995 Regulations, having been issued by the assessor and not by the secretary to the Committee. By letter dated 29 November 2002, the assessor replied to this letter in detail.

[20] On 3 December 2002 Mr Henry replied to the assessor by fax and by post repeating points that he had already made. On 5 December 2002 the Committee refused Mr Henry's request. Its reasons were that no further material facts or submissions had been adduced on behalf of the appellants in relation to regulation 15(2) or otherwise and that no reasonable grounds had been established for recall of the decision of 13 November. The Committee also considered that no breach of regulation 8 had been established, the secretary having effectively caused the issue of the citations. So far as the Committee was aware, that procedure was universally adopted for all valuation appeals in Scotland. Mr Henry had accepted it in other appeals in which he had been engaged. The Committee considered that in any event no prejudice had been caused to the appellants or to Mr Henry in the appeals in question. By letter dated 6 December 2002 the secretary to the Committee intimated the Committee's decision and its reasons.

The present appeals
[21] The grounds of appeal are as follows:

"1. The Committee having erred in law in their consideration of the appellants' request for continuation in that

(a) they took into account the absence of appearance on behalf of

the appellants in reaching their decision;

(b) they took into account the stated failure of the appellants to

comply with Reg. 10(3) of the Procedure Regulations; and

national negotiations with the Scottish Assessors' Association on the scheme for the revaluation of hotel subjects;

this appeal against the committee's refusal of that request and subsequent decisions intimated by letters dated 15 November 2002 and 6 December 2002 should be allowed and the appeals remitted to the valuation appeal committee to proceed as accords.

2. Separatim, the committee having erred in law in refusing the application under Reg. 15(2) in that they failed to take into account as a material consideration the reasonableness of the request by the appellants for a continuation, this appeal against the decision intimated by letter dated 6 December 2002 should be allowed and the appeals remitted to the valuation appeal committee to proceed as accords."

Submissions for the appellants
[22] Counsel for the appellants submitted that the error in the Committee's refusal of a continuation lay in the first two reasons given by it. Those reasons could justify the dismissal of the appeals, but neither properly related to the question of a continuation. Counsel accepted however that the third reason was relevant to that question. The Committee had then erred in law in refusing the appeals, not because the reasons were irrelevant to that question, but because the Committee ought not to have been in the position where the question even arose. It came to that question only because of its antecedent error in refusing a continuation. The decision to refuse to recall the decision was also an error of law. It had been reasonable to request a continuation in view of the national negotiations. The Committee had failed to consider that question. It had only asked itself whether Mr Henry had adduced any new facts or submissions.

Submissions for the respondent
[23] Counsel for the assessor submitted that all three decisions were within the rightful discretion of the Committee. The reasons given for the decisions of 13 November were valid reasons for both decisions. Mr Henry's absence and his failure to comply with the procedural regulations were proper reasons for refusal of the continuation. If the refusal of the continuation was valid, the dismissal of the appeals was inevitable. In refusing to recall those decisions the Committee was within its discretion in holding that there had been no reasonable excuse for Mr Henry's absence.

Decision
[24] I sympathise with the Committee and its secretary to whom these cases have caused such trouble and inconvenience. The Committee extended every consideration to the appellants. The secretary to the Committee dealt with Mr Henry's correspondence with courtesy and patience. He took the trouble to warn Mr Henry, if warning were needed, of the risks that he would run if he failed to appear. In my view, the Committee cannot be faulted in any of its decisions. All three decisions were, by reason of paragraphs 9(3), 10(3), 15(1) and 15(2) respectively, wholly within the Committee's discretion. These appeals are presented on the basis that the Committee's exercise of that discretion in each case constituted an error of law.

I can see no error of law in any of the decisions. The Committee was entitled to look at the whole circumstances of the case. Its reasons in each case were relevant, clearly expressed, and well-founded.

The decisions of 13 November 2002

The refusal of a continuation

[25] It was within the discretion of the Committee not merely to grant or refuse the motion; but to refuse even to entertain it (reg. 9(3)(b)). In the event, the Committee gave the motion anxious consideration. It took evidence on oath from the depute assessor in order to elicit the whole background and his reasons for opposing the motion. Only then did the Committee decide to refuse the motion.

[26] The Committee gave one set of reasons for both decisions. That was appropriate in the circumstances. All three reasons were as valid for one decision as for the other. Not only were the first and second reasons relevant to the decision to refuse a continuation; but either would have been a sufficient reason for refusal in itself.

[27] The plain truth is that Mr Henry chose to absent himself from the hearing in the knowledge of the risk that that involved. His insistence that these appeals should be dealt with only after the conclusion of the "national negotiations" set him apart from every other professional agent involved in hotel appeals in Grampian. His determination to have a continuation, plainly in order to keep his options open, resulted in his truculent letter of 7 November in which he attempted to put a pistol to the Committee's head, with the disproportionate risk that all the appeals might be dismissed.

[28] In any event, I fail to see how the appeals can succeed on this point since the Committee's third reason was, as counsel for the appellant expressly conceded, a valid reason for refusal of the motion.

Dismissal of the appeals
[29] The submission for the appellants on this point depends on our holding that the refusal of the continuation was invalid. In view of my conclusion on that question, I consider that the appellants must fail on this question. My own view is that after the refusal of the continuation, the dismissal of the appeals for want of insistence was the only decision that the Committee could reasonably have taken.

The decision of 5 December 2003
[30] In my opinion, the submission for the appellants is fallacious. The issue for the Committee was not whether the request for a continuation had been reasonable. It was whether Mr Henry had shown a reasonable excuse for his absence on 13 November (reg. 15(2)). There was no dispute as to the reason for his absence. It was his deliberate refusal to attend. Mr Henry made no attempt to establish that that was a reasonable excuse. His only new point was that the original notices were invalid. That came far too late in the day and was unstatable anyhow.

Expenses
[31] Since we were agreed that these appeals should be refused, we intimated that decision to the parties at the end of the hearing. Counsel for the assessor then moved for expenses. He submitted that the root cause of these appeals was the refusal of Mr Henry to attend the hearing before the Committee; and that the appellants had insisted in appeals to this court that had no reasonable prospects of success.

[32] Counsel for the appellants submitted that the court should award expenses only in exceptional circumstances. The appeals had been maintained on his advice. The grounds of appeal had been arguable.

[33] The motion for expenses raised the question whether expenses should be awarded against the appellants or against Mr Henry personally; but counsel for the appellants forestalled a decision on that question by undertaking that if an award should be made against the appellants, Mr Henry would meet the liability himself. On that understanding, counsel for the assessor moved for expenses against the appellants only.

[34] It is not the practice of this court to make awards of expenses; but the court has the power to do so and will exercise that power on an exceptional occasion to mark its disapproval of the conduct of a party's case (Barry v Ass for Edinburgh, 1968 SC 12; cf Ass for Greenock v Wilson, 1919 SC 474). This is such an occasion.

[35] Mr Henry's discourtesy towards the Committee and the questions of professional responsibility that his conduct raises are not of immediate relevance to the assessor's motion, which relates to the proceedings before this court. But these proceedings must be seen in the light of the proceedings before the Committee.

[36] I agree with counsel for the assessor that the root cause of these appeals was the decision of Mr Henry to absent himself from the hearing on 13 November. That decision is unique in my experience. It is significant that counsel for the appellants did not assert that Mr Henry took the decision with the express authority of his clients. He suggested that the decision was within the scope of Mr Henry's general mandate to conduct their appeals. I fail to see how Mr Henry could be entitled to take such a decision upon himself when it carried the grave and obvious risk that the appeals would be dismissed. It was a reckless decision that led to the presentation of two hopeless applications to the Committee.

[37] These appeals were hopeless and should have been seen to be hopeless from the outset. They have put the assessor to needless expense.

[38] The appellants should therefore be found liable to the assessor in the expenses of these appeals. The account of expenses, when lodged, should be remitted to the auditor to tax and to report.

Noble & Ors v. Assessor for Grampian Valuation Joint Board [2003] ScotCS 310 (12 December 2003)

LANDS VALUATION APPEAL COURT, COURT OF SESSION
Lord Justice Clerk Lord Philip Lord Clarke	XA44/03 OPINION OF LORD PHILIP in STATED CASES in the APPEALS of JOHN H. NOBLE and OTHERS Appellants; against THE ASSESSOR FOR GRAMPIAN VALUATION JOINT BOARD Respondent: (Subjects: 17 Hotels in the Valuation District of Moray) _______

For appellants: Haddow QC; Simpson and Marwick WS

For respondent: Doherty QC; Bennett and Robertson

12 December 2003

[39] I agree that these appeals are without foundation and should be dismissed for the reasons given by your Lordship in the chair.

[40] The Committee had an unfettered discretion to grant or refuse the motion for continuation of the appeals. The reasons for their decision to refuse the motion were (i) the appellants' absence from the hearing of 13 November 2002 and the lack of a reasonable excuse for it; (ii) the appellants' failure to furnish the Assessor with a statement of the grounds on which the valuation for which he contended was arrived at, in terms of Regulation 10(3) of the Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts)(Scotland) Regulations 1995; and (iii) that the fact that 146 of the 165 hotel appeals had been resolved by negotiation indicated that the Assessor's approach to valuation was fair and reasonable.

[41] Reasons (i) and (ii) related to the way in which the appeals had been conducted on behalf of the appellants, and in particular to their failures to comply with procedural requirements. The appellants' conduct of the appeals was a matter to which the Committee were clearly entitled to have regard in deciding whether they should be afforded the indulgence of a continuation. The appellants' attack on reasons (i) and (ii) is therefore without merit.

[42] It was conceded that reason (iii) was relevant to the question as to whether a continuation should be granted. The settlement of such a large number of appeals, despite the absence of a national agreement on the method of valuation for hotels, was a powerful indicator that there was no justification for a continuation to await the outcome of discussions which might not, and indeed, did not, lead to agreement on the matter. In any event the concession, which could not have reasonably been withheld, was fatal to these appeals.

[43] Since the appellants' argument in relation to the refusal of a continuation of the appeals fails, so also must the argument relating to the dismissal of the appeals.

[44] I also agree, for the reasons stated by your Lordship, that the expenses of these appeals should be awarded against the appellants.

Noble & Ors v. Assessor for Grampian Valuation Joint Board [2003] ScotCS 310 (12 December 2003)

LANDS VALUATION APPEAL COURT, COURT OF SESSION
Lord Justice Clerk Lord Philip Lord Clarke	XA44/03 OPINION OF LORD CLARKE in STATED CASES in the APPEALS of JOHN H. NOBLE and OTHERS Appellants; against THE ASSESSOR FOR GRAMPIAN VALUATION JOINT BOARD Respondent: (Subjects: 17 Hotels in the Valuation District of Moray) _______

For appellants: Haddow QC; Simpson and Marwick WS

For respondent: Doherty QC; Bennett and Robertson

12 December 2003

[45] I agree, for the reasons given by your Lordship in the chair, that these appeals are entirely without merit and fall to be dismissed.

[46] The Committee's decision of 13 November 2002 to refuse the application for a continuation was an entirely reasonable exercise of their discretion in the circumstances, arrived at for quite understandable and legitimate reasons. I agree with your Lordship in the chair that after the Committee's refusal of the continuation, the dismissal of the appeals for want of insistence was the only decision that the Committee could reasonably have taken in the circumstances.

[47] As to expenses of the appeals, I agree that these should be awarded to the respondent.