Rating — Procedure of Lands Tribunal — Whether Lands Tribunal can be required to state a case for the decision of the Court of Appeal on an interlocutory matter — Interpretation of section 3(4) of Lands Tribunal Act 1949 — Meaning of ‘decision’ — Refusal of tribunal in a rating appeal to order discovery of documents relating to takings of public houses in the City of London — Tribunal member’s ruling that he had no power to state a case on this question — Following an application for judicial review, Judge Newey, sitting as a High Court judge, directed the tribunal to state a case, which was done — Held by Court of Appeal that the Lands Tribunal cannot be required to state a case on an interlocutory point — Proviso to section 3(4) of the 1949 Act refers to final decisions only — Other machinery is available to deal with interlocutory matters, namely, application to a High Court judge under section 3(6)(c) of the Act and rule 38 of the Lands Tribunal Rules or an application to the Registrar of the Lands Tribunal under rules 40 and 45 — Appeals against Judge Newey’s direction allowed
These were
proceedings by way of appeal from a decision given by Judge Newey QC, sitting
as a judge of the High Court, following leave given to apply for judicial
review. Judge Newey ordered that the Lands Tribunal should state and sign a
case for the decision of the Court of Appeal on the ruling given by J H Emlyn Jones
FRICS that the tribunal had no power to state a case on the tribunal’s refusal
to order discovery. In the first appeal the appellants were Watneys of London
Ltd and three other brewery companies (Chef & Brewer Ltd, Truman Ltd and
Goodhews Ltd) and the respondents were the City Corporation. In the second
appeal the appellant was Richard Burrows (valuation officer) and the
respondents were the City Corporation and the four brewery companies. The
decision of the Lands Tribunal was reported at (1981) 258 EG 561, [1981] 1 EGLR
191.
In the first
appeal David Widdicombe QC and Miss Susan Hamilton (instructed by C Cullum
Smith and Crossman, Block & Keith) appeared on behalf of the appellants;
Bernard Marder QC and Jeremy Sullivan (instructed by the Comptroller and City
Solicitor) represented the respondents. In the second appeal Alan Fletcher
(instructed by the Solicitor of Inland Revenue) appeared on behalf of the
appellant; Bernard Marder QC and Jeremy Sullivan (instructed by the Comptroller
and City Solicitor) represented the first respondents (the City Corporation);
David Widdicombe QC and Miss Susan Hamilton (instructed by C Cullum Smith and
Crossman, Block & Keith) represented the remaining four respondents (the
brewery companies).
Giving
judgment, LORD DENNING MR said: There are three public houses in the City of
London. One is the ‘Sir Christopher Wren’ in Cathedral Place: another is ‘The
Cock Tavern’ in Fleet Street: and the third is ‘The Magogs’ in Russia Row. A
question has arisen as to what the rateable value of those public houses should
be. The valuation officer inserted his figures in the valuation list. But the
Corporation of the City of London were dissatisfied with them. So the matter
went on appeal to the Lands Tribunal.
In the course
of the proceedings the Corporation of the City of London said that the
valuation was too low. They submitted that the rateable value ought to be
assessed on a new basis. In aid of this submission the Corporation of the City
of London want to see the profit and loss accounts and other details of the
business of these three public houses. They want discovery of the documents
relating to the takings in those houses.
Before the
appeals were heard by the Lands Tribunal, there were pre-trial applications. No
application was made for discovery then. But it was raised at the beginning of
the appeals. Mr Emlyn Jones, the member of the Lands Tribunal who was hearing
the appeals, refused to order discovery at that stage. He also expressed the
opinion that he had no power to state a case and refused a stay of the
proceedings.
The
corporation then went straight to the Divisional Court and asked for leave to
apply for judicial review. They asked for an order that the Lands Tribunal
should state and sign a case for the decision of the Court of Appeal. They said
that the Lands Tribunal were bound to state a case.
His Honour
Judge Newey accepted the corporation’s submission and directed that a case
should be stated by the Lands Tribunal on the matter. A case has now been
stated. But there is a preliminary point to be decided. Was the judge right in
ordering the Lands Tribunal to state a case?
It is submitted to us that the Lands Tribunal cannot be required to
state a case on an interlocutory point such as discovery of documents. It can only
be required to state a case on a final award.
This point
depends on the true interpretation of section 3(4) of the Lands Tribunal Act
1949, which provides:
A decision of
the Lands Tribunal shall be final:
Provided that
any person aggrieved by the decision as being erroneous in point of law may,
within such time as may be limited by rules of court, require the tribunal to
state and sign a case for the decision of the court . . .
The
Corporation of the City of London say that the word ‘decision’ in that subsection
includes not only a final decision but an interlocutory decision. But on the
other side it is said: ‘No; it refers only to a final decision of the Lands
Tribunal and not an interlocutory decision’.
My own view is
that the Lands Tribunal can state a case only on a final decision, not on an
interlocutory matter. The principal reason is because there is ample other
machinery available for interlocutory matters.
One way is by
applying to a High Court judge. This is provided for by section 3(6)(c) and
rule 38 of the Lands Tribunal Rules. It brings in section 12(6) of the
Arbitration Act 1950, which says:
The High Court
shall have . . . the same power of making orders in respect of . . . (b)
discovery of documents and interrogatories . . . as it has for the purpose of
and in relation to an action or matter in the High Court:
Provided that
nothing in this subsection shall be taken to prejudice any power which may be
vested in an arbitrator or umpire of making orders with respect of any of the
matters aforesaid.
It seems to me
that the rules of the Lands Tribunal, by incorporating section 12(6) of the
1950 Act, show that the High Court has power to make an order for discovery of
documents in relation to proceedings which are going on in the Lands Tribunal.
But that power is without prejudice to any power which the Lands Tribunal itself
may have of making orders.
Another way is
by applying to the registrar of the Lands Tribunal. Rule 40 gives the registrar
power to order discovery. It says:
A party to
proceedings shall deliver to the registrar on his request any document or other
information which the Tribunal may require and which it is in the power of that
party to deliver and shall afford to every other party to the proceedings an
opportunity to inspect those documents (or copies of them) and to take copies:
Provided that
nothing in this rule shall be deemed to require any information to be disclosed
contrary to the public interest.
This is
followed by rule 45, which tells how interlocutory applications are to be made.
It says:
(1) Except where these Rules otherwise provide,
an application for directions of an interlocutory nature in connection with any
proceedings shall, unless otherwise ordered by the President, be made to the
registrar . . .
(7) The registrar may, and shall if so required
by the applicant or by a party objecting to an application under this rule,
refer the application to the President for decision.
(8) A party aggrieved by a decision of the
registrar on an application under this rule may appeal to the President by
giving notice in writing to the registrar and to every other party within seven
days after service on him of notice of the decision or within such further time
as may be allowed by the registrar, but an appeal from a decision of the
registrar shall not act as a stay of proceedings unless so ordered by the
President.
Thus there are
two ways available for getting discovery. One way is to make an application to
the registrar and thence to the president. The other way is to apply to the
High Court. It has an overriding power, if an application is made to it, to
order discovery of documents.
So machinery
is provided by the rules: first by applying to the tribunal: and then, if the
application is refused, by applying to the High Court judge. That seems to me a
good and effective machinery for obtaining discovery. It follows that section
3(4) need never be invoked for interlocutory applications. It should be limited
to final decisions of the Lands Tribunal.
We were
referred to one or two other matters in the case. I will put on one side the
Tribunals and Inquiries Act 1971 because that has its own provisions in section
13 for dealing with decisions of tribunals including interlocutory orders. The
Lands Tribunal and the valuation courts are specifically excluded from section
13.
Then we were
referred to two cases. First, Norwich Rating Authority v Norwich
Assessment Committee [1941] 2 KB 326, in which on different wording it was
held that the decision could be the subject of an appeal by way of case stated.
There were no rules such as we have here. Secondly, Oswestry Corporation
v Hudd (Valuation Officer) [1966] 1 WLR 363, which is parallel to our
present case. It was held in that case that ‘decision’ applied only to a final
decision.
I would go
simply on the Lands Tribunal Act and the rules made thereunder. It seems to me
that the rules make ample provision for justice to be done in interlocutory
applications to the Lands Tribunal — or, alternatively, to the High Court: and
section 3(4) can very properly be confined to final decisions.
For these
reasons I am afraid I take a different view from Judge Newey. I would allow the
appeals. There is no jurisdiction to state a case from the interlocutory order.
Agreeing,
OLIVER LJ said: The question turns entirely upon the correct construction of
the word ‘decision’ in section 3(4) of the Lands Tribunal Act 1949. It simply
provides: ‘A decision of the Lands Tribunal shall be final’. It then goes on to
provide for a person aggrieved a right to have a case stated on a point of law
for the court — not just an option but a right. And subsection (11) makes it
clear that the court referred to in subsection (4) is the Court of Appeal. So
one has here for a start a provision which confers a right upon the litigant to
have a point of law referred by way of case stated to the Court of Appeal. In
my judgment, the natural construction of that would be, as a pure matter of
commonsense, that it related only to the final decision of the court.
That seems to
me to be borne out by a consideration of the Act as a whole. Section 1(3) sets
out the various matters which are referred to the Lands Tribunal for decision —
a series of what are described as ‘questions’ or ‘disputes’. Section 4(1)
provides:
His Majesty
may by Order in Council direct that questions which are required or authorised
by any Act . . . or instrument made under any such Act, to be determined by any
statutory tribunal shall or may be determined instead by the Lands Tribunal if
it appears to His Majesty — (a) that the questions are appropriate for the
Lands Tribunal
and so on.
Subsection (4)
of that section provides:
Without
prejudice to the generality of the last foregoing subsection, the provisions
thereby authorised to be contained in an Order in Council shall include
provisions for the following purposes, that is to say — (a) making decisions of
the Lands Tribunal in the exercise of the jurisdiction transferred enforceable
in the same way as those of the statutory tribunal from which the jurisdiction
is transferred.
Clearly there,
I think, ‘decisions’ is used in the sense of a final decision. Then in
subsection (6) of section 3 one finds again that the rules which may be made
under the subsection may make provision as to the form in which the decision of
the tribunal is to be given. It seems to be singularly inappropriate to interlocutory
decisions on matters such as discovery and so forth.
It makes, as
Mr Fletcher has said, perfectly good sense to give an absolute right to a
litigant to have a case stated in the Court of Appeal in the case of a final
decision; but it does not seem to me to make any sense at all to give a similar
right — a right which is not conferred in any other court — to go straight to
the Court of Appeal without leave in the case of an interlocutory decision. One
would require some persuading that that is the effect of the section even if,
contrary to the view I take, the word ‘decision’ is not prima facie
applicable to a final decision.
As Mr Fletcher
has submitted, Parliament envisaged that the Lands Tribunal procedure should be
in essence a modified form of the arbitration procedure which is provided by
the Arbitration Act because subsection 6(c) of section 3 enables rules to be
made and ‘apply in relation to the Tribunal any of the provisions of the
Arbitration Acts, 1889 to 1934’ — updating them to the relevant time for this
appeal, the provisions of the 1950 Act.
It would, one
would have thought, have been a sensible thing that there should be either in
the tribunal or in the litigant before the tribunal the right, subject to the
control of the High Court, to have a case stated in the same way as before an
arbitrator. Rather curiously perhaps, the provisions for consultative cases
have not been applied by the rules, which do not, in fact, incorporate in the
provisions which are to be applied to the Lands Tribunal the provisions of
section 21 of the Arbitration Act 1950. But, as Mr Fletcher submitted, it is
not right to construe the Act — or what is the true meaning of the Act — by
reference to the rules which have subsequently been made under it by the rule-making
body. The fact is that the Act here contemplated a method which is that a
perfectly sensible right of challenge should be conferred in the case of
interlocutory decisions, and indeed the rule-making power has incorporated the
current jurisdiction of the High Court under the Arbitration Act by applying to
the Lands Tribunal the provisions of section 12(6) of that Act.
Construed in
the way in which my Lord has construed the relevant section, that is, section
3(4), with which with respect I concur, it seems to me that one gets a
perfectly sensible meaning out of the Act; and it would, in my judgment, be a
misconstruction to treat the word ‘decision’ in subsection (4) of section 3 as
applying to the sort of interlocutory ruling which is in question in this case.
For those
reasons, therefore, and for the reasons which my Lord has given, I too agree
that the appeal should be allowed.
WATKINS LJ: I
agree, and there is nothing I can usefully add.
