UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2015] UKUT 335(LC)

UTLC Case Number: RA/80/2014

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

 

RATING – procedure – appeal to VTE automatically struck out for failure to comply with procedural directions – refusal of application to reinstate – whether a decision from which an appeal lies to Upper Tribunal - whether appeal to be struck out - Rule 8(2)(a), Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 - regs 10(1)/(5), 40 and 42, Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009

 

IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE VALUATION TRIBUNAL FOR ENGLAND

 

BETWEEN

 

WONDER INVESTMENTS LTD

Appellant

and

DAVID JACKSON (VALUATION OFFICER)

Respondent

 

 

Re: 4 East Barnet Road

Barnet

Herts

EN4 8RW

 

 

Martin Rodger QC, Deputy President

 

Decision on written representations

 

 

 

 

© CROWN COPYRIGHT 2015

The following cases are referred to in this decision:

Verkan & Co. Ltd. v Byland Close (Winchmore Hill) Ltd. [1998] 2 E.G.L.R. 139

Sole v Henning (V.O.) [1959] 3 All. E.R. 398

Sinclair Gardens Investments (Kensington) Ltd. v Franks (1998) 76 P. & C.R. 230

Wellcome Trust Ltd. v Romines and another [1999] 3 E.G.L.R. 229

DECISION

1.    On 9 September 2014 the Vice President of the Valuation Tribunal for England dismissed an application by Wonder Investments Limited to reinstate its appeal against a decision of the Valuation Officer, which had been struck out for failure to serve a statement of case.  The ratepayer lodged an appeal against that decision with the Tribunal, but the Valuation Officer has applied to dismiss the appeal under Rule 8(2)(a) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 on the grounds that the Tribunal does not have jurisdiction to consider it.

2.    This decision is concerned only with the Valuation Officer’s application and has been determined without a hearing on the basis of the parties’ written representations.

The facts

3.    The appeal arises in the following way.  On 20 August 2012 the appellant made a proposal to delete a hereditament at 4 East Barnet Road, Barnet from the rating list.  That proposal was not accepted by the Valuation Officer and was remitted to the VTE for consideration as an appeal. 

4.        On 18 February 2014 the VTE gave notice that the hearing of the appeal would take place on 1 May 2014.  The notice of hearing was accompanied by the VTE’s standard directions which required that not later than six weeks prior to the date of the hearing the appellant was to serve a statement of case on the VTE and all other parties to the appeal.  The directions included a clear warning that a failure to comply would result in the proceedings automatically being struck out. That warning is in accordance with regulation 10(1) of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 (“the 2009 Regulations”).

5.        No statement of case was received by the VTE (or by the Valuation Officer) within the period directed and notice was given to the appellant on 24 March 2014 that the proceedings had been struck out.  The notice drew attention to the VTE’s power under regulation 10(5) of the 2009 Regulations to permit appeals to be reinstated.  The appellant was informed that any application for reinstatement should explain the failure to comply with the direction and why the appeal should now be reinstated.  

6.    On 7 April 2014 a Mr Hume, acting on behalf of the appellant, sent an email to the VTE requesting reinstatement of the appeal.  He explained that the appellant’s statement of case and a covering letter dated 10 March 2014 had been submitted to the VTE by post and copied to the Valuation Officer.  He described the statement of case as having been “issued” on 10 March from which I take it that was the date of posting.  Mr Hume attached copies of the covering letter and the statement of case to his e-mail.  The letter was dated 10 March and referred to a statement of case which was said to be enclosed in compliance with the standard directions; the letter also purported to confirm that a copy of the statement of case had been posted to the Valuation Office Agency.  The statement of case itself was dated 10 March 2014.  Its contents complied with the requirements of such a statement and it was signed by Mr Hume. 

7.    The application for reinstatement was considered by the Vice President of the VTE who caused a letter to be written to Mr Hume on 4 August 2013 affording him the opportunity to provide further information.  In particular some explanation was invited of the fact that neither the VOA nor the VTE had received a copy of the statement of case said to have been sent by post.  Mr Hume responded to that letter but provided no further information.

8.    On 9 September 2014 the Vice President issued a decision refusing to reinstate the appeal.  He gave the following reasons:

“(1) Mr Hume’s position in this application is that the statement of case was sent by post on March 10 2014 to both the VTS and the VOA offices.  However, I am satisfied on the evidence that no such statements of case were received by either recipient. 

(2) Although a copy of the covering letter said to have been sent to the VTS is produced, the fact that two separate letters were not received at different addresses is not at all supportive of the Applicant’s case that these letters were indeed committed to the post, and on balance I am not satisfied that they were.

(3) After my preliminary consideration of this application, Mr Hume was at my request afforded the opportunity on 4 August 2014 to provide further information given that neither statement of case was received.  However, in his response he provided none, observing that the VTE had already asked this question.  If there was any one-off administrative error or technical problem which caused the failure to issue this correspondence, I have not been advised, and it is not for me to speculate as to reasons.

(4) The professional representative has a duty to comply with the Tribunal’s directions.  I am not persuaded that the standard directions were complied with, and have been given a incomplete understanding of how this came to be.  I am not satisfied that there are grounds on which I should grant this application.”

The appeal

9.    On 29 September 2014 Mr Hume, on behalf of the appellant, wrote to this Tribunal requesting that the Vice President’s decision be “reviewed”.  Mr Hume acknowledged that the statement of case dated 10 March 2014 had not been sent by Recorded Delivery but said that its contents “indicate preparation and submission by the required deadline.”  On 3 October 2014 the appellant submitted a notice of appeal against the decision of 9 September and asked that its original statement of case to the VTE should stand as its statement of case for the appeal. 

10.    The Valuation Officer applied on 5 November 2014 for the appeal to be struck out under rule 8(2)(a) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, which gives the Tribunal power to strike out the whole or part of proceedings which it does not have jurisdiction to determine.  In support of the application the VO referred to Regulation 42 of the 2009 Regulations and submitted that because the appellant had not appeared at a hearing, and could not show reasonable cause for its absence, it had no right of appeal.

11.    In response to the application the appellant submitted in a letter dated 27 January 2015 that no solid grounds had been shown for denying it the opportunity to have its appeal considered by the VTE, especially as it had supplied copies of its statement of case as soon as it had become aware that it had not been received.

Discussion

12.     Part 5 of the 2009 Regulations is concerned with correcting, reviewing, setting aside and appealing the decisions of the VTE.  Regulation 40(1)-(2) permit the VTE, on the application of a party or at the direction of its President, to review the whole or part of “a decision which disposes of proceedings on an appeal” and to set it aside if certain conditions are met.  One of those conditions, provided for by regulation 40(5)(c), is where a party or its representative was not present at a hearing relating to the proceedings and the party shows reasonable cause for its or its representative’s absence.

13.    Regulation 42 deals with appeals to the Upper Tribunal, and regulation 43 with appeals to the High Court.  For the purpose of this appeal the relevant provisions of regulation 42 are these:

“Appeals to the Upper Tribunal

42.—(1) An appeal shall lie to the Upper Tribunal in respect of a decision or order given or

made by the VTE on an appeal under the NDR Regulations or an appeal against a completion notice under paragraph 1 of Schedule 4A to the 1988 Act as it applies for the purposes of Part 3 of the 1988 Act.

(2) An appeal under paragraph (1) shall lie at the instance of—

(a) any party who appeared at the hearing or, if the appeal was disposed of by written

representations, who made such representations; or

(b) any person whose application under regulation 40(1) for the review of the decision relied (whether in whole or part) on satisfaction of the condition mentioned in regulation 40(5)(c).

….

(5) The Upper Tribunal may confirm, vary, set aside, revoke or remit the decision or order, and may make any order the VTE could have made.”

14.    Regulation 42(1) describes the type of decision which may be the subject of an appeal to the Upper Tribunal, while regulation 42(2) identifies the persons entitled to bring such an appeal. Under regulation 42(2)(a) two categories are identified as entitled to bring an appeal in respect of a decision or order given or made by the VTE on an appeal under the Non-Domestic Rating (Alteration of Lists and Appeals)(England) Regulations 2009, namely “any party who appeared at the hearing or, if the appeal was disposed of by written representations, who made such representations”. 

15.    Regulation 42(2)(b) confers a separate right of appeal to this Tribunal on any person who applied to the VTE under regulation 40(1) for the review of a decision and whose application relied on satisfaction of the condition mentioned in regulation 40(5)(c) (reasonable cause for non-attendance).

16.    The basis of the VO’s application to strike out the appeal in this case is that the appellant cannot satisfy either of the conditions in Regulation 42(2). 

17.    An appeal lies to the Tribunal from the VTE only against “a decision or order”.  The appellant’s appeal to the VTE was struck out automatically under regulation 10(1) of the 2009 Regulations as a result of the appellant’s failure to provide its statement of case within the time directed. The disposal of the appeal in that manner was not the result of a separate decision, but was the automatic consequence of a procedural omission; nor would it appear to have been the result of any separate order.  It is not necessary to consider whether any right of appeal lies to the Tribunal against the striking out of the appeal itself, because the proceedings before the Tribunal are an appeal under regulation 42 against the Vice President’s decision of 9 September 2014 refusing the appellant’s application under Rule 10(5) for the appeal to be reinstated.  That clearly was a decision given on an appeal for the purpose of regulation 42. 

18.    The Vice President’s decision was not made on an application for a review under regulation 40.  Instead, Mr Hume’s e-mail of 7 April 2014 invoked the right under regulation 10(5) to apply for the reinstatement of the appeal following its automatic striking out under regulation 10(1).  I do not think it is appropriate to characterise the decision as a refusal to review a previous decision, because, as I have already explained, the striking out of the appeal was not the result of a decision but rather was the result of a sanction imposed for default in complying with a procedural direction. The entitlement to seek reinstatement of an appeal under regulation 10(5) is not dependent on the satisfaction of the conditions in regulation 40(5) or any other conditions specified by the 2009 Regulations.

19.    On that basis the right to appeal to the Tribunal under regulation 42(2)(b) of the 2009 Regulations is not relevant to this appeal;  this appeal is concerned only with whether the appellant has a right of appeal as a party satisfying the description in regulation 42(2)(a).  To have such a right the appellant must be a party “who appeared at the hearing or, if the appeal was disposed of by written representations, who made such representations”.  The first of those alternatives is obviously not satisfied here, as there was no hearing, but what of the second?  No reference was made to the second limb of regulation 42(2)(a) in the parties’ representations on the application to strike out the appeal.  Even when the Tribunal specifically invited further representations addressing regulation 42(2)(a), nothing of assistance was received from either party.  I make no criticism of the appellant for that, as it acts in this matter without legal representation.  The Valuation Officer’s response to the invitation to make further submissions was disappointing.  It amounted to little more than a further recitation of the facts coupled with a suggestion that the President of the VTE be made a party to the appeal.

20.    The Vice President’s decision of 9 September 2014 was made on the basis of written representations and had regard, in particular, to Mr Hume’s email of 7 April and the documents which accompanied it.  The question which arises, however, is whether the appeal to the VTE can be said to have been “disposed of by written representations”.  At the time of the Vice President’s decision the appeal had already been struck out, and on one view the decision of 9 September disposed only of the application for reinstatement and not of the appeal, which had already been disposed of.  The alternative view would be that, although the appeal had previously been struck out, it could not be said finally to have been disposed of until the application of 7 April for reinstatement had been considered and dismissed.  It remained an appeal for the limited purpose of consideration whether it should be reinstated, so that the Vice President’s decision was given “on an appeal”.  On that view the appeal was disposed of by the Vice President’s decision and a right of appeal would lie to this Tribunal under regulation 42(1).

21.    The consequence of not recognising a decision under regulation 10(5) as one falling within regulation 42 would be that no right of appeal would lie against it at all.  That would be a surprising conclusion.  Moreover, it would be difficult to construe the regulation as conferring a right of appeal where the appellant had been in attendance at the hearing of an application to reinstate, but not where the same application had been determined on written representations.  There could be no rational justification for such a distinction, and I reject it.  The better view, in my judgment, is that an appeal which has been struck out, but which is the subject of an application for reinstatement, remains an appeal for this purpose until it is finally disposed of by the dismissal of that application.

22.    I am therefore satisfied that the appellant satisfies the description in regulation 42(2)(a), as being a person who made written representations on an appeal which was disposed of by such representations, and therefore has the right to appeal to the Tribunal under Regulation 42(1) of the 2009 Regulations.

23.    Having reached the conclusion that a right of appeal does lie to the Tribunal against the Vice President’s decision to strike out the appeal in this case, it remains for consideration how the appeal should now proceed. 

24.    It has been the practice of the Tribunal in rating appeals, as it was formerly that of the Lands Tribunal, to determine such appeals as re-hearings.  That practice may originally have been a reflection of the composition of the tribunals against whose decisions on matters of valuation the right of appeal lay to the Lands Tribunal.  The same practice was adopted on appeals from leasehold valuation tribunals, although in neither case was the Tribunal compelled to proceed in that way, as was pointed out by the Lands Tribunal (H.H.J. Marder Q.C., President) in Verkan & Co. Ltd. v Byland Close (Winchmore Hill) Ltd. [1998] 2 E.G.L.R. 139 (at p.144E-H):

“Historically, the Lands Tribunal has not acted as a court of review, but has treated every appeal as a hearing de novo, with the parties entitled to call fresh evidence if so advised. This tribunal in determining an appeal has not hitherto been concerned to consider whether the decision appealed against was right or wrong, save perhaps in relation to the costs of the appeal proceedings. However, I am not aware of any statutory provision which binds the tribunal to conduct the appeal in this way, or indeed in any particular way.”

25.    The adoption of that practice did not imply any disrespect for the tribunal whose decision was under appeal and the approach of the Tribunal was to require the appellant to satisfy it that the decision appealed against was wrong (see the judgment of Lord Evershed M.R. in Sole v Henning (V.O.) [1959] 3 All. E.R. 398, in particular at p.399H; and the decisions of the Lands Tribunal in Sinclair Gardens Investments (Kensington) Ltd. v Franks (1998) 76 P. & C.R. 230, at pp.234 and 235, and in Wellcome Trust Ltd. v Romines and another [1999] 3 E.G.L.R. 229, at p.230 to p.233).  That was not simply a matter of comity but was based on competence and expertise of the original tribunal; the President of the Lands Tribunal explained the approach which was taken in Verkan in the passage immediately following the one cited above:

“… In my judgment, where, as in this case, a competent leasehold valuation tribunal (which is assumed to have local market knowledge) has decided matters of fact and value on the opinion evidence of valuers and an inspection of the subject premises, then on a subsequent appeal to the Lands Tribunal, at least where there is no suggestion of any dispute as to matters of law or a valuation principle, the Lands Tribunal should be slow to disturb the decision of the leasehold valuation tribunal unless satisfied that the decision is clearly wrong. This is consistent with the views expressed by Judge Rich Q.C. (sitting as a member of the Lands Tribunal) in the case of Sinclair Gardens Investments (Kensington) Ltd. v Franks …”.

26.    The decision of the Vice President in this case was a decision on the facts.  He did not accept Mr Hume’s assertion that the appellant’s statement of case had been consigned to the post within the time required by the standard directions given on 18 February 2014.  The fact that two copies of the statement of case were said to have been sent to two different addresses, at neither of which it was received, and the fact that no further information was provided to indicate why this might have occurred, would appear fully to justify the Vice President’s conclusion.  The decision was also a decision on a matter of case management, in which appellate tribunals ought to exercise restraint.  If the Tribunal’s powers were limited to a review of the VTE’s decision, there would in my judgment be no question of setting it aside.  It was clearly a conclusion open to the Vice President on the material provided to him. 

27.    The appellant has requested that its statement of case said to have been sent to the VTE should stand as its statement of case for this appeal, but that misunderstands the proper subject matter of the appeal.  It would not be right, it seems to me, to proceed straight away to a hearing of an appeal against the Valuation Officer’s refusal to accept the appellant’s proposal to delete the hereditament at 4 East Barnet Road from the rating list.  For the time being the appeal is solely against the decision of the Vice President not to reinstate the appeal after it had been struck out, and it would be subversive of the proper procedures of the VTE to enable the appellant to by-pass those procedures and have his substantive appeal considered by this Tribunal as if it had never been struck out for procedural default.  Ruling that approach out as unacceptable still leaves open the question whether the Tribunal should approach the appeal as a rehearing or whether the Vice President’s decision should remain undisturbed unless the appellant can make a convincing case that it was wrong.

28.    The parties have not had the opportunity to make submissions on the substance of the appeal, which has so far proceeded only on the application to strike out.  Before considering the appeal further it is appropriate that I give both parties the opportunity to ask for an oral hearing if they so wish, and to make any submissions which they consider appropriate on the approach which the Tribunal should take on an appeal against a refusal by the VTE to exercise its case management powers to reinstate an appeal which has been struck out for default. 

29.    I therefore dismiss the Valuation Officer’s application to strike out the appeal.  If either party wishes to make further submissions on the substance of the appeal, or wishes the Tribunal to hold an oral hearing, they must provide those submissions or make that request within 28 days of the date of this decision.

 

 

 

 

Martin Rodger QC,

Deputy President

12 June 2015