Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 19

A112/12

Lord Justice Clerk

Lord Malcolm

Lord McGhie

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK,

in the reclaiming motion

PATRICIA POLLEY

Pursuer and Reclaimer;

against

(1) WEST LOTHIAN COUNCIL and (2) THE ACCOUNTANT IN BANKRUPTCY

First and Second Defenders
and Respondents:

Act: Party

Alt: Barne; Simpson & Marwick (First Defenders)

Alt: Ower; Harper Macleod LLP (Second Defender)

20 February 2015

Introduction
[1]        This reclaiming motion arises out of a dispute concerning liability to pay council tax in respect of a property in Kirknewton, West Lothian, during the years 1999 - 2008.  The pursuer seeks reduction of an award of sequestration granted against her at Hamilton Sheriff Court on 22 March 2010, together with reduction of the underlying charge for payment dated 17 December 2009 and the preceding 5 summary warrants granted by the sheriff at Linlithgow relating to council tax in each year from 2004 to 2008.  The pursuer accepts that exceptional circumstances are required to justify the remedy sought.  The issue for determination in the case generally is whether the pursuer has made out a relevant case to that effect on record.  The reclaiming print did not contain the record upon which the Lord Ordinary decided the case, but the court has had regard to that record when examining the Lord Ordinary’s reasoning.

The pursuer’s averments
[2]        The pursuer avers that she bought the property in January 1996.  During the period from 1999 to date, she claims to have had no sole or main residence and therefore no liability to pay any council tax.  It is said that she has never lived in the property, nor has she ever been the liable party in respect of the council tax.  During the relevant period, the property was occupied by a tenant, namely her son, albeit that he was absent for a period, during 1999 to 2002, when he stored his belongings there and continued to pay rent.

[3]        The pursuer claims that no council tax bills were issued to her between 1999 and 2004.  She was unaware of action being taken against her until, on 22 August 2007, sheriff officers served her with summary warrants in respect of the period June 2004 to June 2007.  She responded to this by writing to the sheriff officers stating that she was not liable for the tax and that the property was occupied by a tenant.  This information was passed to the first defenders.  On 15 August 2008, sheriff officers served the pursuer with a further summary warrant. 

[4]        On 5 March 2010, the pursuer was served with a sequestration petition at the instance of the first defenders.  She challenged the jurisdiction of the court.  She presented documentation to demonstrate that she was not the liable person because of her son’s occupation of the property.  Decree of sequestration was awarded in spite of this.  Thereafter, the pursuer raised “further actions” in the sheriff court, in an attempt to “correct the wrongful litigation” taken against her.  It was not until 26 March 2010 that she received copies of the summary warrant applications for June 2004 to June 2008.

[5]        The pursuer avers almost no facts which might be relevant to reduction.  She pleads “entitlement to apply for reduction” on the basis of the statutory provisions on council tax and her lack of opportunity to challenge the first defenders’ claims about her liability prior to the issue of the warrants and charge.  She pleads “exceptional circumstances to support reduction” of the sequestration although it is not said what these might be.

The defenders’ position
[6]        Although the court must, at this stage, proceed on the basis that the pursuer will prove her averments, it is necessary to look at some of the defenders’ averments in order to make some sense of the pursuer’s case in the first place.  If this were not done, her case would be simply incomprehensible and hence irrelevant in law.  

[7]        The first defenders maintain that the pursuer is liable for tax from 1999 onwards.  This followed receipt of a letter from the pursuer dated 19 February 2002 intimating that her son had left the property in 1999.  The first defenders had accordingly issued demand notices (Council Tax (Administration and Enforcement) (Scotland) Regulations 1992) to the pursuer in respect of the years thereafter.  The notices were not appealed (Local Government Finance Act 1992, s 81).  The consequent summary warrants and charge for payment were not challenged in any competent legal process.

[8]        Following the petition for sequestration, the pursuer had appeared at Hamilton Sheriff Court.  Sequestration was awarded on 22 March 2010.  An appeal against that award was dismissed as incompetent.  The pursuer then petitioned for recall of the sequestration.  The petition for recall was dismissed on 13 July 2011 and the related appeal on 16 January 2012.

The sequestration
[9]        It is also necessary to look at the sheriff court processes in order to make some reasonable sense of the pursuer’s case.  The petition for sequestration had first called on 8 March 2010, when the pursuer herself appeared.  The total council tax debt was £11,244.19.  A charge for payment had been served on 17 December 2009.  No payment had been made and thus apparent insolvency was established.  The sheriff continued consideration of the petition until 22 March to allow the first defenders to look at the documentation produced by her (supra).  However, at the continued diet, he was satisfied that he was bound, in terms of section 12(3) of the Bankruptcy (Scotland) Act 1985, to award sequestration forthwith.  He took cognisance of the pursuer’s position that, although she owned the property, it was leased to a tenant, but he correctly observed that matters had moved on from there; the issue not being liability but means of enforcement.

[10]      The pursuer’s appeal was refused as incompetent by the sheriff principal on 9 July 2010.  No grounds of appeal had been stated but, as the sheriff principal rightly stated, it is not competent to appeal an award of sequestration.  The appropriate process is a petition for recall (1985 Act, ss 16 and 17), or, as the sheriff principal also observed, reduction of the underlying orders. 

[11]      On 3 February 2011, the pursuer presented a petition for recall.  This was refused by the sheriff (supra), who reasoned that what the pursuer was trying to do was challenge the original award without seeking reduction of the warrants and charge upon which it was based.  The sheriff stated that a recall process was not the correct one in which to pursue such a challenge.

[12]      The sheriff principal agreed and refused an appeal against the sheriff on the basis that a petition for recall did not permit a challenge to the merits of the warrants and charge.

The Lord Ordinary’s decision

[13]      The pleadings had been the subject of extensive adjustment and amendment at first instance.  Amendment of the summons was allowed on two occasions before calling.  Thereafter the cause was continued on the Adjustment Roll on numerous occasions from 11 September 2012 until 12 July 2013.  On 28 August 2013, the cause was finally appointed to the Procedure Roll.  A debate proceeded on 2 May 2014.  On 6 June 2014, the Lord Ordinary dismissed the action.

[14]      The Lord Ordinary, citing Aitken v Aitken [2005] CSOH 105 (Lord Hodge at para [5]), stated that, if a debtor sought to challenge a debt upon which a charge had proceeded, he required to do so by legal process.  The pursuer had not done so, notwithstanding that the charge itself had advised her to seek legal advice if she was not sure what to do.

[15]      Despite a paucity of formal averment, the Lord Ordinary permitted the pursuer to mount a series of challenges on various fronts before rejecting them all in sequence.  The complaint about the peremptory refusal of her appeal was not well‒founded because it was inevitable.  Her appeal was incompetent.  The pursuer had accepted that, for an action of reduction to succeed, she required to prove exceptional circumstances, such as fraud, but there were no pleadings about fraud.  On that basis alone, dismissal had to follow.

[16]      Nevertheless, the Lord Ordinary listened to additional arguments.  The only allegation of fraud was based on the first defenders’ refusal to accept that she was not liable to pay the tax; averments which the Lord Ordinary did not regard as sufficient.  The Lord Ordinary addressed the pursuer’s submission that sequestration was not a valid step, following upon the expiry of a charge based on a summary warrant.  This was rejected under reference to Chaudhry v Advocate General 2013 SLT 548.  Finally, he explained that, although the court did have a discretion on whether to reduce an award of sequestration, that was not based upon section 17 of the 1985 Act. 

[17]      In dismissing the action, the Lord Ordinary had regard to the time which had elapsed since the sequestration (Arthur v SMT Sales and Services Co 1999 SC 109 at 115) and the steps which had been taken by the second defender to evict the pursuer from the property.  As this had now occurred, wholly exceptional circumstances were required for a relevant case of reduction.  It was too late to permit an argument based upon a lack of jurisdiction and there was no plea of prescription; both being matters raised at first instance, although not pursued in the reclaiming motion.

Submissions
The pursuer

[18]      The pursuer submitted that the Lord Ordinary had failed to take account of failures by the first defenders to follow the statutory procedures for the assessment and enforcement of council tax up to and including the obtaining of summary warrants (Council Tax (Administration and Enforcement) (Scotland) Regulations 1992, reg 17(4)(b)(i); Local Government Finance Act 1992, Sch 8, para 2(2); the 1992 Act, s 81(8)).  The first defenders had failed to make proper enquiries about whether the pursuer lived in the property.  She was held liable without any evidence that she did (1992 Act, s 75(2)(a)). 

[19]      The first defenders had not been entitled to assess the pursuer’s liability where they had already issued demand notices to the tenant.  Their failure to make proper enquiries had caused them to send demand notices to her at the property, where she would be unlikely to receive them, and to seek summary warrants against her, which were not justified by the underlying assessments.  It had been unreasonable, oppressive and an abuse of statutory powers to apply for a summary warrant in respect of assessments, of which the pursuer was unlikely to be aware.  She had intimated to the first defenders, via sheriff officers, that she did not live in the property.  In oral argument, the pursuer submitted that she had been unaware of the statutory procedure for objecting to the demand notices.  She had, however, by communicating with the sheriff officers, objected in writing as required (1992 Act, s 81(4)).  The first defenders had failed to respond.

[20]      The first defenders’ alleged failure to make proper enquiry into the pursuer’s liability, at the stage of applying for summary warrants, was sufficiently serious to justify the court granting reduction of the warrants, charge and sequestration.  The Lord Ordinary had erred in following Chaudhry v The Advocate General for Scotland (supra), to the effect that summary warrants could form the basis of a petition for sequestration.  Such an interpretation had been acknowledged as inconsistent with the intentions of Parliament. 

[21]      The Lord Ordinary had erred in holding that matters had gone too far to allow reduction of the sequestration.  Nothing had occurred which could not readily be reversed.  The property was the sole asset in the sequestrated estate.  It remained under the control of the second defender.  It had not been marketed for sale.  No third parties had any interest in it.  Following the hearing before the Lord Ordinary, on 5 August 2014 the second defender had abandoned her interest in the property.  The heritable creditors retained their security and would not be prejudiced by reduction of the sequestration.

[22]      Following the sequestration, the pursuer had been advised by the sheriff clerk at Hamilton to appeal to the sheriff principal, which appeal was dismissed as incompetent.  Thereafter, on attending the offices of this court, she had been advised to seek recall of sequestration in the sheriff court, which application was refused.  In such unusual and exceptional circumstances, the pursuer was entitled to reduction (Barlow v City Plumbing Supplies Holdings [2009] CSOH 5, Lord Hardie at para [19]). 

First defenders
[23]      The first defenders set out the hierarchical regime of council tax liability in the 1992 Act and Regulations (supra).  Regulation 17 provided for “demand notices” to be served and regulation 20 required payment of any estimate, subject to adjustment (reg 23).  The first defenders maintained that the pursuer was due to pay the sums.  The owner would be liable if there were no occupying tenant.  The first defenders were entitled to recover the tax by diligence authorised by summary warrant.  In terms of the Bankruptcy and Diligence etc (Scotland) Act 2007, such a warrant was a decree or document of debt for the purposes of the Debtors (Scotland) Act 1987.  Summary warrants were granted ex parte.  In terms of section 209 of the 2007 Act, a charge for payment was required before diligence. 

[24]      In oral argument, it was submitted that writing to sheriff officers was not sufficient to constitute a notice to instigate the statutory appeal procedure (1992 Act, s 81).  The pursuer had not relied on this argument in her pleadings or before the Lord Ordinary.  In any event, she had failed to pursue matters, as required by the statutory provision, to the valuation appeal committee in the absence of a response to the purported notice.  Where she had failed to do so, and had subsequently exercised the opportunity to seek recall of sequestration, it was difficult to conceive of circumstances short of fraud that could justify reduction.  The pursuer had had various opportunities to have her liability determined in the appropriate forum.  She could also have sought a continuation of the sequestration proceedings in order, for example, to raise proceedings for suspension.

[25]      Reduction was only available in the event of exceptional circumstances (Adair v Colville & Sons 1926 SC (HL) 51).  It was not available where recall had been sought.  It was not competent to reduce the charge and the warrants, once sequestration had been granted (Wilson v Bank of Scotland 1987 SLT 117).  If a party wished to challenge the debt, that should have been done before the expiry of the days of the charge (Aitken v Aitken (supra)).

[26]      The merits of the pursuer’s liability for council tax had not been properly before the court at the Procedure Roll debate.  The issue remained the relevancy of the pursuer’s averments.  There were no averments of exceptional circumstances. 

The second defender
[27]      Despite lodging separate answers and a note of argument, the second defender advanced substantially the same propositions as the first defenders and adopted their oral submissions.  The only additional factors relied upon related to the circumstances surrounding the pursuer’s sequestration.  The second defender had been granted decree for possession of the property in the sheriff court at Livingston.  An eviction had been arranged, albeit that the pursuer had sought, and been refused, interim interdict.  An appeal by the pursuer to the sheriff principal remained extant. 

[28]      The second defender had not “abandoned” the property.  The property was in “negative equity” and the secured creditor had instigated calling up proceedings.  There being no benefit to the sequestrated estate in doing otherwise, the second defender had taken the practical step of delivering the keys to the solicitors acting on behalf of the heritable creditor. 

Decision
[29]      The court’s task is to consider the decision of the Lord Ordinary on the pleadings that were before him and as they remained unamended at the Summar Roll hearing.  The content of the minute of amendment proffered by the pursuer at a late stage, which a differently constituted Division refused to be received on 5 February 2015, is irrelevant to any consideration of the merits of the reclaiming motion.

[30]      There is no reason to interfere with the careful and detailed reasoning of the Lord Ordinary.  The remedy of reduction to set aside a sheriff court decree does not exist as of right.  It is not a remedy which is granted when other methods of review are prescribed and these have either been utilised unsuccessfully or the pursuer has failed to take advantage of them (Adair v Colville & Sons 1926 SC (HL) 51, Viscount Dunedin at 56).

[31]      The pursuer had the opportunity of appealing the alleged liability to a valuation appeal committee in terms of s 81 of the 1992 Act (The Council Tax (Alteration of Lists and Appeals) (Scotland) Regulations 1993, reg 22).  Despite her new claim that her communication to the sheriff officers constituted the appropriate notice (1992 Act, s 81(4)), it is clear that it did not.  Even if it had, it was not followed by any appeal.  Had the pursuer wished to challenge the liability, she could have done so but manifestly failed to do so.  She could also have sought suspension of the warrants and charge, pending any appeal.  She did not do this either.  That being so, there was no basis for challenging the sequestration as apparent insolvency had been established (Wilson v Bank of Scotland 1987 SLT 117). 

[32]      In the absence of averments of exceptional circumstances, reduction is not open to the pursuer.  Put simply, no such circumstances are pled.  In that and the other matters raised by the pursuer viva voce, and not in her averments, the court is content to adopt the Lord Ordinary’s reasoning.  The first defenders have simply followed the statutory procedures, having formed the view that the pursuer was liable as owner (1992 Act, s 75(2)(f)(iii)) despite her protestations to the contrary based on her son’s alleged liability as occupying tenant. 

[33]      The Lord Ordinary did not fail to take into account any of the pursuer’s submissions concerning the first defenders’ actings.  He did not consider them to be material in the case which he required to determine. 

[34]      No matter what the merits of the pursuer’s liability to pay tax may have been, it is now too late to challenge the underlying procedures which led to the inevitable award of sequestration following upon a failure to pay the sums competently demanded in the charge.  Attempting to shift any blame for not taking the proper legal action to challenge the first defenders’ assessments cannot avail the pursuer in this regard.

[35]      The reclaiming motion must be refused.

Expenses
[36]      The defenders sought expenses in the cause against the pursuer.  The court was not satisfied that separate representation for each defender was reasonable, given the absence of any conflict of interest.  The court is mindful of the need for economy, particularly in cases against unrepresented litigants.  It was not suggested that any facts addressed by the second defender could not have been made known to the court by counsel and agents acting for both defenders.  Where defenders advance substantially the same position, and no contrary position had been anticipated, it would be inequitable for the pursuer to bear the expenses of two parties.  Accordingly, the expenses of process are awarded in favour of the first defenders only.  No expenses are found due to or by the pursuer and the second defender.