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LANDS VALUATION APPEAL COURT, COURT OF SESSION
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Lord Justice Clerk
Lord Clarke
Lord Hodge
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[2008] CSIH 3
XA77/07
OPINION OF THE LORD JUSTICE CLERK
In the Appeal by
BELHAVEN BREWERY COMPANY LIMITED
Appellant;
against
THE ASSESSOR FOR HIGHLAND AND WESTERN ISLES
Respondent:
_______
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Act: Kinroy QC; Simpson & Marwick WS
Alt: Doherty QC; Drummond Miller WS
15 January 2008
Introduction
[1] This
appeal relates to a public house called the Bar Pivo
at 38-40 Academy
Street, Inverness. The subjects were previously
a bank.
The appellant opened them as a public house on 14 March 2003. The assessor
entered them in the Roll with effect from that date at a net annual value (NAV)
of £32,000. That value applied for the
period 14 March 2003 to 31 March 2005. The appellant
appealed against the assessment on the ground of a material change of
circumstances on the basis of an expected downturn in trade; but withdrew the
appeal when the downturn did not occur.
[2] The
2005 revaluation took effect on 1 April 2005. The tone date
for the revaluation was 1 April 2003. In the 2005
revaluation public houses were valued in accordance with the scheme of the Scottish
Assessors' Association for licensed premises (the 2005 scheme). This scheme introduced the concept of the
fair maintainable turnover in the calculation of NAV (cf
Suburban Taverns (Glasgow) Ltd v Ass for Glasgow, 15 January 2008). Since the
premises opened only about two weeks before the tone date, the assessor based
his valuation on turnover figures for the 46 weeks period from 7 March 2003 to 24 January 2004. It brought
out an NAV of £41,000. He carried out a
check calculation based on the average of the turnovers in the years to 31 March 2004 and 31 March 2005. That brought
out an NAV of £40,000. He entered the
subjects in the Roll at an NAV of £41,000.
The appellant appealed against the entry.
[3] Before the Committee, the appellant's
representative, Mr Peter Henry FRICS, submitted that
the turnover figures on which the assessor based his valuation were not
sustainable (cf Suburban
Taverns (Glasgow) Ltd v Ass for Glasgow, supra). He based his
valuation on the turnover figures for the year to 31 March 2006, that is to say the first year of turnover after
the revaluation came into force and the third year after the tone date. The application of the 2005 scheme to these figures
brought out an NAV of £35,200.
[4] The
Committee rejected Mr Henry's use of the 2005-2006
figures; but, having regard to the assessor's check valuation and an
alternative calculation based on the indexing of the figures for the first
year's trading, it allowed the appeal to the extent of substituting an NAV of
£40,000.
[5] Mr
Henry required the Committee to state a case.
He tabled six grounds of appeal. In
May 2007 the solicitors for the appellant lodged the stated case. They neglected to serve copies of the stated
case on the assessor (cf Act of Sederunt
(Valuation Appeal Rules Amendment) 1982 (SI No 1506), rule 10). When the assessor heard by chance that the
appeal had been lodged, the solicitors for the appellant told him by e-mail dated
26 October 2007 that,
after discussions with Mr Henry, it had been decided that the appeal would
proceed. On 11
November 2007 Mr Henry confirmed
this to the assessor.
The abandonment of the
appeal
[6] At the outset of the hearing on 12
December 2007, counsel
for the appellant moved for leave to abandon the appeal. In doing so he offered an undertaking on
behalf of Mr Henry to which I shall refer.
His motion was not opposed by counsel for the assessor.
[7] Counsel told us that the grounds of
appeal were drafted by Mr Henry. No
advice on the grounds of appeal had been sought until shortly before the
hearing. On 7 December
2007 counsel
advised that the appeal should be abandoned.
On 10 December he amplified that advice.
Mr Henry then accepted that the appeal was unstatable.
[8] Counsel for the appellant apologised to
the court and to the assessor on behalf of Mr Henry. He said that Mr Henry accepted that he had
made a serious mistake.
The
background
[9] A person who is not legally qualified may
be allowed to conduct an appeal before a local valuation appeal committee (Valuation
Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regs 1995 (SI No 572), reg 13(1)). This is a useful provision. It can be helpful to a committee if an appeal
is presented by a competent rating surveyor; but problems can arise where an
appeal is conducted by a representative who lacks a proper understanding of
valuation law and practice and who does not take legal advice. In recent years Mr Henry has persistently
abused the privilege of conducting appeals before committees. We have had occasion to comment on his conduct
towards assessors, committees, and secretaries to committees, and on his perverse
challenges to revaluation schemes that have been generally accepted by responsible
rating surveyors (cf Belhaven Brewery Group plc v Glasgow City Ass, 2003 SC 395, at para
[16]; Sinclair v Lothian Ass, [2003] RA 202; Noble v
Ass for Grampian Valuation Joint Board, 2004 SC 383; North
British Trust Hotels Ltd v Ass for Highland and Western Isles, 2005 SLT
419).
[10] Mr Henry has also caused problems for this
court. He has taken numerous appeals
against decisions of committees on mostly irrelevant grounds. At this sitting we have heard two appeals in
which counsel was prepared to argue only two of nine grounds tabled by Mr Henry,
neither of which had any merit (Suburban
Taverns (Glasgow) Ltd v Ass for Glasgow, supra; Belhaven Brewery Co Ltd v Ass for Glasgow, 15 January 2008).
[11] In Noble
v Ass for Grampian Valuation Joint Board (supra) we found the appellants liable to the assessor in the
expenses of a number of hopeless appeals that Mr Henry ought not to have brought. We did so on an undertaking by Mr Henry that
he would meet those expenses himself.
[12] In North
British Trust Hotels Ltd v Ass for Highland and
Western Isles (supra) several hopeless appeals were abandoned
on the morning of the hearing. Mr Henry
had taken the appeals without legal advice and had sought counsel's advice only
a few days before the hearing. We
awarded expenses to the assessor against the appellants, but one of our number
gave notice of the possibility that in a similar situation the court might
award expenses against the appellant's representative personally (at para [13]).
[13] We hoped that our
decision in North British Trust Hotels
Ltd v Ass for Highland and Western Isles (supra) would ensure that
there would be no repetition of such conduct. Now it has happened again.
[14] Counsel for the appellant gave an
undertaking that "Mr Henry would never again take an appeal to this court
without taking legal advice at the earliest opportunity." He accepted that Mr Henry should be found
personally liable to the assessor in expenses on a solicitor and client basis.
Conclusions
[15] Mr Henry's conduct in this and other cases has constituted an
abuse of process. His undertaking will spare
this court the waste of administrative and judicial time and resources that occurs
in situations like this. It is an
undertaking in foro. If Mr Henry were to be in breach of it, he
would be in contempt of court (Graham v
Robert Younger Ltd, 1955 SC 28). I
would add that in any case in which a rating surveyor may instruct solicitors
to lodge an appeal to this court, those solicitors are not relieved of their
own duty to consider whether the appeal may properly be brought.
[16] But Mr Henry's undertaking will not affect the waste of the
time of assessors, committee members and clerks that is caused by the hopeless appeals
that he takes to local committees and the pointless cases that he requires them
to state. It may be that he hopes that in
such cases assessors will concede reductions in NAV for the sake of peace. If so, that is a futile strategy. When a hopeless appeal is taken to a
committee, the assessor does not have the option that would be available to a
private litigant of compromising to save time, trouble and expense. If the assessor is satisfied that his
valuation is sound, it is his duty to defend it. If he were not to do so, or were to
compromise the case for the sake of peace, he would be in breach of his duty of
fairness to other ratepayers (Lands Valuation (Scotland) Act 1854 (the 1854
Act), s 13).
[17] Appeals to local committees involve assessors and committees in
considerable trouble and expense. The
process of drafting a stated case and dealing with the tiresome revisals that Mr Henry usually proposes adds
unreasonably to the burdens of the clerk.
I remind committees and their clerks that regulation 13(2) of the 1995
Regulations (supra) provides that if
in any particular case the committee is satisfied that there are good and
sufficient reasons for doing so, it may refuse to permit a person to assist or
represent a party at the hearing.
[18] Since the abolition of domestic rating, most appeals to committees
are taken by commercial organisations on the advice of professional valuers. There is no
sanction if such appeals are taken irresponsibly. Under section 13 of the 1854 Act, a local
committee has the power to award expenses where a complaint by a ratepayer has
been made without reasonable or probable cause.
It is unfortunate, in my view, that committees do not have the same
power in relation to appeals.
Disposal
[19] I propose to your
Lordships that we should grant leave to the appellant to abandon the appeal and
find Mr Henry personally liable to the assessor in the expenses of the appeal
on an agent and client basis.
|
LANDS VALUATION
APPEAL COURT, COURT OF
SESSION
|
Lord Justice Clerk
Lord Clarke
Lord Hodge
|
[2008] CSIH 3
XA77/07
OPINION OF LORD CLARKE
in the
APPEAL
by
BELHAVEN BREWERY COMPANY
LIMITED
Appellant;
against
THE ASSESSOR FOR HIGHLAND
AND WESTERN ISLES
Respondent:
_______
|
Act: Kinroy QC; Simpson & Marwick WS
Alt: Doherty QC; Drummond Miller WS
15 January 2008
[20] I agree with your Lordship in the chair as to how this appeal
should be disposed of and there is nothing I wish to add.
|
LANDS VALUATION
APPEAL COURT, COURT OF
SESSION
|
Lord Justice Clerk
Lord Clarke
Lord Hodge
|
[2008] CSIH 3
XA77/07
OPINION OF LORD HODGE
in the
APPEAL
by
BELHAVEN BREWERY COMPANY
LIMITED
Appellant;
against
THE ASSESSOR FOR HIGHLAND
AND WESTERN ISLES
Respondent:
_______
|
Act: Kinroy QC; Simpson & Marwick WS
Alt: Doherty QC; Drummond Miller WS
15 January 2008
[21] I have read
and agree with the opinion of your Lordship in the chair. I agree that the
appeal should be refused. Having regard
to what this Court said in North British
Trust Hotels Ltd v Ass for Highland and Western Isles 2005 SLT 419 it is very unfortunate that Mr Henry has until now
insisted in this unstateable appeal. The undertaking which counsel has proffered
and the award of expenses against Mr Henry personally are
the proper means of disposing of the appeal and addressing the problem which it
has exposed.
