Non-domestic rates – Procedure – Appeals – Appeal to Valuation Tribunal for England struck out for failure to comply with directions for service of statement of case – Vice-president of VTE refusing application to reinstate appeal – Approach to be taken by Upper Tribunal on appeal against that decision – Appeal dismissed
The appellant appealed to the Valuation Tribunal for England against the rejection by the respondent valuation officer of a proposal to delete a hereditament in London EN4 from the non-domestic rating list. The VTE gave standard directions which required the appellant to serve a statement of case at least six weeks before the date of the hearing, failing which the proceedings would automatically be struck out. The appeal was later struck out on the grounds of the appellant’s failure to serve a statement of case as directed.
The vice-president of the VTE dismissed the appellant’s application, made under regulation 10(5) of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009, to reinstate the appeal. In doing so, he rejected the appellant’s evidence that a statement of case and a covering letter had been submitted both to the VTE and to the respondent within the time required; neither letter had been received, in the absence of any further explanation from the appellant, the vice-president was not satisfied that the letters had been posted.
That decision was in turn the subject of an appeal to the Upper Tribunal (UT). In a decision on jurisdiction, the UT refused the respondent’s application to strike out the appeal, holding a right of appeal was afforded, under regulation 42(1)(a) of the Non-Domestic Rating (Alteration of Lists and Appeals)(England) Regulations 2009, against a refusal to reinstate an appeal to the VTE which had been struck out on grounds of procedural default: see [2015] UKUT 335 (LC); [2015] PLSCS 190.
The Upper Tribunal then proceeded to hear the substantive appeal against the VTE’s decision. An issue arose as to the proper approach to be taken on an appeal of that nature.
Held: The appeal was dismissed.
The convention in the Lands Tribunal, as the predecessor of the Upper Tribunal (Lands Chamber), was always that appeals in valuation cases proceeded as a complete rehearing, in the sense that the whole dispute was heard afresh with the oral evidence bring heard again and the whole matter reconsidered. The procedure was more akin to a second hearing than an appeal, although an appellate approach was adopted in two important respects: first, the tribunal would generally regarded itself as confined to the issues raised by the appellant in its notice of appeal; and, second, it was for the appellant to satisfy it that the decision appealed against was wrong. The current jurisdiction of the UT was no less broad than the former jurisdiction of the Lands Tribunal: Verkan & Co Ltd v Byland Close (Winchmore Hill) Ltd [1998] 2 EGLR 139 and Johnson (VO) v H&B Foods Ltd [2014] UKUT 458 (LC); [2014] PLSCS 327 applied.
However, the cases in which the Lands Tribunal had 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, had all concerned disputed questions of valuation. By contrast, the instant appeal concerned the exercise by the VTE of its case management discretion. It was notable that the UT was not constrained by any statutory provision requiring it to conduct appeals in a particular manner. Under the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, the UT was free to regulate its own proceedings and had to do so in such a way as to give effect to the overriding objective of the 2010 Rules, which was to enable it to deal with cases fairly and justly. Dealing with a case fairly and justly included dealing with it in ways which were proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties: see r 2(2).
It was 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, and to refrain from interfering with a decision unless incorrect principles had been applied; irrelevant matters taken into account or relevant ones left out of account; or the decision was plainly wrong. There was no good reason why any different principle should be applied in appeals from case management decisions of the VTE. It would be both disrespectful of the autonomy of the lower tribunal, and disproportionate, for any different approach to be taken. Unlike earlier decisions of the local valuation courts which preceded the VTE, the procedural decisions of vice-presidents of the VTE were decisions by professional judges responsible for the management of the VTE’s very substantial case load. It would therefore be wrong, as a general rule, to conduct appeals against case management decisions by way of full rehearing. To do so would be inconsistent with the UT’s overriding objective of dealing with cases fairly and justly, which required that they be considered in a proportionate manner: Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 applied.
Nonetheless, it was appropriate to conduct a rehearing for the purposes of the present appeal since, after receiving the respondent’s submissions, the appellant was entitled to assume that the question of reinstatement would be looked at afresh, and, as neither party had requested an oral hearing or put in any additional evidence, the practical significance of the distinction between a review and a rehearing was diminished. Applying that approach, the appeal should be dismissed. The sole ground of appeal was that the VTE’s direction had been complied with and a statement of case had been submitted by post. The fact that the fact that neither letter had been received cast doubt on that assertion, in the absence of any further explanation by the appellant as to the circumstances of posting. The known facts included the non-arrival of not one but two letters addressed to different organisations at different addresses and said to have been posted on the same date, the absence of any reported difficulty over the delivery of other correspondence, and the fact that neither letter had subsequently been either returned or delivered. The appellant had done nothing to supplement or explain those facts. Accordingly, on the balance of probabilities, the proper conclusion was that the letter said to have been sent to the VTE either was not sent at all or was not properly addressed. Having rejected 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 were no grounds which could justify the reinstatement of the appeal to the VTE.
The appeal was determined on the written representations of the parties.
Sally Dobson, barrister
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