The Courts have made clear the importance of claimants selecting the correct route of challenge to the decision of a public authority. In particular judicial review is regarded by the courts as a remedy of last resort such that if other alternative remedies are made available by the statutory scheme they should be pursued instead. This principle can be illustrated by the recent case of R (Vtesse Networks Ltd) v North West Wiltshire Magistrates' Court (in substitution for Kennet District Council) [2009] EWHC 3283 (Admin).

The Background

Vtesse Networks was set in a rating context. Essentially it is for the local Valuation Office Agency (VOA) to set the rateable value of a property. Once the rateable value has been fixed it is then for the local authority to collect the rates. If no payment is made the local authority can seek a liability order in the magistrates' court and then enforce payment. The rating legislation - the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regs 1989 made under the Local Government Finance Act 1988 - provides that a challenge can be made to a liability order through an appeal by way of case stated to the High Court.

Vtesse Networks (VN) sought judicial review of a decision by a district judge sitting in a magistrates' court to make liability orders against the company concerning unpaid domestic rates in respect of its fibre optic network and the judge's refusal to state a case for an appeal to the High Court. VN argued that a liability order should not have been made because the company had been unfairly discriminated against by the VOA in its assessment of the rateable value of VN's fibre optic network in that it was said to have been treated less favourably than its competitor BT and hence the VOA was in breach of European law. It also argued that it was not in rateable occupation at the relevant time and, if not, that the fibre passing through Kennet did not constitute "relevant property" under the material regulations and so the VOA erred in placing the network within Kennet's area. The consequence, on VN's case, was that the liability orders should not have been made in the magistrates' court.

The Judgment

Owen J in the Administrative Court found in favour of the defendant magistrates' court. He reviewed the earlier authorities and stated (para 23) that "the effect of the legislative scheme is that the magistrates are not able to go behind a valuation made by the VOA when exercising their jurisdiction to make a liability order under the 1988 Act". He added that the scheme makes provision for a challenge to a valuation to be made by appeal to the Valuation Tribunal (which had also occurred in the present case). Therefore VN's correct remedy in respect of its European law case was an appeal to the Valuation Tribunal (and from there to the Lands Tribunal) since the Tribunal would have to apply European law when making decisions on valuation questions. Similarly, the argument that the network was included in the wrong billing authority's area could be addressed under the Alteration of Lists and Appeals Regs 2005 by an appeal to the Valuation Tribunal and indeed an appeal had again been lodged in the present case.

Comment

Vtesse Networks demonstrates the importance of someone aggrieved by a public authority's decision following the right route of challenge in accordance with the legislative scheme. Thus, in the non-domestic rating context where there is a valuation question the correct route of challenge to a decision by the VOA is normally by way of an appeal to the Valuation Tribunal and from there to the Lands Tribunal. If, on the other hand, the challenge is to the making of a liability order on grounds other than valuation grounds such matters will fall outside of the jurisdiction of the tribunal system and the correct route of challenge would normally be to the making of a liability order by defending the case in the magistrates' court and then appealing by way of case stated to the High Court.

The approach in Vtesse Networks thus demonstrates how judicial review is to be regarded as a last resort where there is no statutory alternative remedy. The rating legislative scheme provides for valuation issues to be dealt with by way of appeals through the Tribunal system and that is therefore the route a court would expect a claimant to follow rather than to seek redress by way of judicial review. The position in respect of challenging the imposition of liability where the Tribunals do not have jurisdiction, however, is less clear cut and there might be more scope for judicial review. For example, in R (JJB Sports plc) v Telford and Wrekin Borough Council [2008] EWHC 2870 (Admin) which concerned whether or not a demand notice had been served by the local authority "as soon as practicable" as provided for by Reg 5 of the 1989 Regs the Deputy High Court judge (Timothy Brennan QC) pointed out (para 37) that "it may also be possible to envisage a case where the decision of a rating authority to proceed with enforcement may, in the light of its own breaches of the Regulations, and consequent prejudice to the ratepayer, be so unfair as to call for the intervention of the court on judicial review".

Therefore the analysis that the claimant has to make under this statutory scheme which will be faced by possible claimants dealing with other statutory regimes is to identify the appropriate route of challenge - which route will depend on the detail of the relevant statutory scheme. The analysis might in some circumstances also involve at least to a limited extent a consideration of which route might tactically be the best to follow but this should not be at the expense of failing to follow the correct route.