United Kingdom Upper Tribunal (Lands Chamber)

UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2015] UKUT 649 (LC)

UTLC Case Number: RA/80/2014

                                                                             

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

 

RATING - procedure - appeal against refusal of VTE to reinstate appeal automatically struck out for failure to comply with procedural directions - approach to be taken by Tribunal - appeal dismissed

 

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

 

 

 

 




The following cases are referred to in this decision:

Johnson (VO) v H & B Foods Ltd [2013] UKUT 539 (LC)

Society of Medical Officers of Health v Hope (VO) [1960] AC 551

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

Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427




DECISION

1.        By a decision given on 12 June 2015 ([2015] UKUT 335 (LC)) the Tribunal dismissed an application by the Valuation Officer to strike out this appeal by Wonder Investments Ltd.  I will refer to that decision as the jurisdiction decision.  It now falls to me to decide the appeal itself. 

2.        The appeal is against a decision of the Vice President of the Valuation Tribunal for England made on 9 September 2014 by which she dismissed an application by the appellant to reinstate its appeal against a refusal by the Valuation Officer to delete a hereditament at 4 East Barnet Road, Barnet from the rating list.  The appeal to the VTE had been struck out automatically because the appellant failed to comply with a direction to serve a statement of case, and the Vice President was not satisfied that grounds had been shown which would justify its reinstatement.  In the jurisdiction decision I decided, contrary to the Valuation Officer’s submission, that by regulation 42 of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 (“the 2009 Regulations”) a right of appeal was afforded against a refusal to reinstate an appeal to the VTE which had been struck out on grounds of procedural default.   

3.        The facts relevant to the determination of the appeal were described in the jurisdiction decision.  In short, notice of hearing of the appeal against the Valuation Officer’s refusal to delete the appeal hereditament from the rating list was given by the VTE and the appellant was directed to submit its statement of case not later than six weeks prior to the date of the hearing.  The VTE warned that if a statement of case was not received in time the appeal would be struck out automatically.  No statement of case was received by the VTE (or by the Valuation Officer) within the period directed, so notice was given to the appellant that the proceedings had been struck out.  The appellant then requested reinstatement of the appeal on the grounds that the appellant’s statement of case and a covering letter had been submitted to the VTE by post within the time required and a copy had been sent to the Valuation Officer.  No such letters were received by the VTE or the Valuation Officer and, in the absence of any further explanation from the appellant, the Vice President was not satisfied that they had been posted, and therefore refused to reinstate the appeal. 

4.        After making the jurisdiction decision, and because the parties had not made submissions on the substance of the appeal, I gave them the opportunity to make any further submissions which they consider appropriate.  In particular I invited observations on the approach which the Tribunal should take on an appeal against the exercise by the VTE of its case management powers.  I also offered both parties the opportunity to request an oral hearing of the appeal.

5.        Mr Hume wrote to the Tribunal on 23 July on behalf of the appellant expressing frustration that the Valuation Officer would not engage in meaningful discussions on the substance of the company’s appeal against the refusal to alter the entry for the appeal hereditament in the rating list; that frustration is misplaced as, despite the jurisdiction decision, the merits of the VTE’s decision to strike out the appeal have not yet been considered by the Tribunal and the appeal to the VTE remains struck out.  Mr Hume also made some observations about changes of circumstances in the immediate neighbourhood of the appeal hereditament; those observations are not relevant to the appeal to this Tribunal.  As I explained in the jurisdiction decision the appeal to this Tribunal is concerned solely with the decision of the VTE not to reinstate the appeal to it, after it had been struck out for the appellant’s failure to serve a statement of case.   

6.        The Valuation Officer made submissions, drafted by counsel, in which he suggested that the correct approach to any appeal from the VTE was for the Tribunal to undertake a rehearing at which new evidence could be submitted.  The rehearing should not totally disregard the VTE’s decision and there should be a burden on the appellant to satisfy the Tribunal that the decision was wrong, as the Tribunal (Sir Keith Lindblom, President, and Mr AJ Trott) had explained in Johnson (VO) v H & B Foods Ltd [2013] UKUT 539 (LC) at paragraph 64.  The significance of the VTE’s decision would diminish, the Valuation Officer submitted, if the appellant provided evidence which had not previously been considered and which explained the appellant’s failure to comply with the VTE’s direction to submit its statement of case not later than six weeks before the date of the original hearing.  

7.         Regulation 42 of the 2009 Regulations deals with appeals from the VTE to the Upper Tribunal.  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.

…

(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.”

8.        The convention in the Lands Tribunal, the predecessor of the Upper Tribunal (Lands Chamber), was always that appeals in valuation cases (whether from the VTE on rating matters, or from leasehold valuation tribunals in enfranchisement appeals) proceeded as a complete rehearing, in the sense that the whole dispute was heard afresh (although the appellant, whether ratepayer or valuation officer, opened the appeal). The oral evidence would be heard again and the whole matter was reconsidered, as happened in criminal appeals to the Crown Court, or, formerly, in appeals in the civil courts from decisions of High Court Masters or County Court Registrars or District Judges.  In some senses this is hardly an appeal at all, but is a second hearing, but in two important respects a clearly appellate approach was adopted: first, the Lands Tribunal generally regarded itself as confined to the issues raised by the appellant in its notice of appeal; and, secondly, it expected the party appealing against a decision of the lower tribunal to satisfy it that the decision appealed against was wrong.  

9.        This approach is exemplified by the decision of the Lands Tribunal (HHJ Marder Q.C., President) in Verkan & Co Ltd v Byland Close (Winchmore Hill) Ltd  [1998] 2 EGLR 139, an appeal against the decision of a leasehold valuation tribunal on a claim for collective enfranchisement under the Leasehold Reform, Housing and Urban Development Act 1993.  The Lands Tribunal said this about its approach to such appeals (at p.144E-H):

“In practical terms, this case is a rerun of the cases presented before the leasehold valuation tribunal, with the same witnesses giving virtually the same evidence. 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.

 

The relevant statutory provision … merely creates a right of appeal from the decision of the leasehold valuation tribunal to this tribunal.  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.”

10.    The relevant jurisprudence was considered by the Tribunal in Johnson (VO) v H & B Foods at paragraphs 64 to 69, and it is not necessary to reconsider it in any detail for the purpose of this appeal.  As the Tribunal then concluded, the jurisdiction of the Upper Tribunal is no less broad than was the jurisdiction of the Lands Tribunal.

11.    Against that background it is appropriate to draw attention to three particular features of this appeal. 

12.    First, this appeal concerns the exercise by the VTE of its case management discretion; a refusal to reinstate an appeal struck out on the grounds of procedural default is one of the means by which a tribunal polices compliance with its own procedural orders and directions.  As far as I am aware, this is the first occasion on which the Tribunal has had to consider the approach which it is appropriate for it to take when hearing such an appeal. 

13.    Secondly, the cases in which the Lands Tribunal explained and refined its practice of determining appeals on the basis of a rehearing, rather than a review of the decision of the lower tribunal, which practice was restated by the Tribunal in Johnson (VO) v H & B Foods, all concerned disputed questions of valuation (the issue in Johnson itself was whether the parties were entitled to resile from an agreement on valuation issues which had been reached before the VTE’s decision). 

14.    Thirdly, and perhaps most importantly, as the Lands Tribunal noted in Verkan, the Tribunal is not constrained by any statutory provision requiring it to conduct appeals in a particular manner.  On the contrary, since its absorption into the Upper Tribunal, and the adoption of the Tribunal Procedure (Upper Tribunal)(Lands Chamber) Rules 2010 (“the 2010 Rules”), the Tribunal  is free to regulate its own proceedings and must do so in such a way as to give effect to the overriding objective of those Rules, which is to enable it to deal with cases fairly and justly.  As rule 2(2) spells out, dealing with a case fairly and justly includes dealing with it in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties.

15.    It is normal for an appellate court or tribunal to exercise particular restraint when considering appeals against the case management decisions of a lower court or tribunal.  In Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427, at [33], Lawrence Collins LJ expressed the proper approach in these familiar terms:

“… an appellate court should not interfere with case management decisions by a judge who has applied the correct principles and who has taken into account matters which should be taken into account and left out of account matters which are irrelevant, unless the court is satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”

Exactly the same approach is taken by the Tribunal when considering applications for permission to appeal, and appeals, against case management decisions of the First-tier Tribunal (Property Chamber).  It would be both disrespectful of the autonomy of the first-tier tribunal and disproportionate for any different approach to be taken.  I can see no good reason why, in appeals from case management decisions of the VTE, any different principle should be applied.  The Valuation Officer, in his submissions, did not suggest any reason.

16.    In the jurisdiction decision I suggested that the practice of the Tribunal of determining rating appeals by way of a complete rehearing 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 membership of the Local Valuation Courts constituted by the Local Government Act 1948, which were the predecessors of the VTE, was drawn from lay panels whose conclusions were treated as decisions on the facts which were incapable of setting any precedent (see, for example, Society of Medical Officers of Health v Hope (VO) [1960] AC 551, 567-568).  There can be no similar justification for treating with caution the procedural decisions of Vice-Presidents of the VTE, who are professional judges responsible for the management of the VTE’s very substantial case load.

17.     I have been invited by the Valuation Officer, in his submissions, to approach this appeal as a rehearing of the appellant’s application to reinstate its appeal and allow it to proceed to a determination by the VTE.  For the reasons which I have indicated I doubt that that approach is the proper one for the Tribunal to take.  If it were to be followed generally in relation to case management decisions of the VTE it is likely that it would be inconsistent with the Tribunal’s overriding objective of dealing with cases fairly and justly, which requires that they be considered in a proportionate manner. It would also be an anomalous and, in my view, unjustified interference by an appellate tribunal with the procedural autonomy of the VTE, particularly when it is remembered that there is currently no requirement to obtain permission to appeal.       

18.    Nevertheless, having expressed those misgivings about the approach advocated by the Valuation Officer, I propose to follow it for the purpose of this appeal.  After receiving the Valuation Officer’s submissions the appellant was entitled to assume that the question of reinstatement would be looked at afresh, and as neither party has requested an oral hearing or put in any additional evidence the practical significance of the distinction between a review and a rehearing is diminished.  I will therefore consider for myself whether the appellant has demonstrated grounds on which it would be proper to order the reinstatement of its appeal, rather than considering whether the decision of the VTE was one which the Vice-President was entitled to reach on the material presented to her.

19.    The sole basis of the appellant’s application to reinstate its appeal after it had been struck out, as explained in an e-mail by Mr Hume sent on 7 April 2014, was that the VTE’s direction had been complied with and a statement of case had been submitted by post on 10 March 2014 both to the VTE and to the Valuation Officer.  Mr Hume’s account does not descend to any relevant detail (he does not, for example, say that he was responsible for preparing and posting the letters with their enclosures) and the fact that neither letter was received immediately casts doubt on it.  It was because of that doubt that the VTE gave the appellant the opportunity to provide additional information, but nothing of relevance was provided, nor has anything subsequently been provided.  The absence of any further explanation of the circumstances in which the letters are said to have been despatched, by whom they are said to have been prepared for posting, who is said to have delivered them to Royal Mail and how that was done, gives further weight to alternative hypotheses, including that the covering letter of 10 March 2014 and the statement of case bearing the same date were not properly addressed, or that (despite the date they bear) they were prepared, addressed and submitted to the VTE for the first time after the appellant was notified that the appeal had been struck out. 

20.    The appellant could have made inquiries of Royal Mail to establish whether other users of the postal service in its locality had experienced similar difficulties, but it did not do so.  It has had the opportunity to state whether it has experienced other problems with post despatched from its offices to other addressees, but it has not suggested that it has.  It has not taken the opportunity afforded by the Tribunal of requesting an oral hearing at which the facts could have been explored.  I am therefore left to determine the relevant facts on the balance of probabilities.  The known facts are: first, the non-arrival of two letters addressed to different organisations at different addresses and said to have been posted on the same date (but without any detail having been provided); second, the absence of any reported difficulty over the delivery of other correspondence; and third the fact that neither letter has subsequently been either returned or delivered.  The appellant has done nothing to supplement or explain those facts, and the conclusion I draw from them is that the letter said to have been sent to the VTE either was not sent at all or was not properly addressed. On either basis responsibility for the appellant’s non-compliance with the VTE’s procedural direction lies solely with the appellant.   

21.    As I do not accept the appellant’s case that it did what it could to comply with the VTE’s direction to submit a statement of case by a specified date, there are no grounds on which I could justify reinstating the appeal to the VTE.  I therefore dismiss the appeal.  

 

 

 

Martin Rodger QC,

Deputy President

26 November 2015