Ryan Fisher Vinyl & Carpet Showroom RA/94/2017

Thorntons plc and Clarions Solicitors Limited RA/80/2017 and RA/93/2017

The Upper Tribunal (Lands Chamber) has handed down two decisions recently which have highlighted the Tribunal’s pragmatic approach to potential errors in procedure.

In Ryan Fisher, the appellant did not file evidence by the relevant deadline and did not attend the hearing before the Valuation Tribunal (“VT”). However, the ratepayer had informed the VT that he was on holiday during the period of the hearing and had sought an adjournment on at least two occasions. The VT dismissed the appeal, stating that there were “no exceptional reasons” to excuse the non-compliance.

The Upper Tribunal (“UT”) disagreed with the VT’s approach and stated that the dismissal should only have been ordered upon a more-rounded appraisal of the facts behind the non-compliance and the consequences of such. The VT or UT is not bound by the Civil Procedure Rules (“CPR”) which govern our Courts, but the approach to be taken should be more in line with that advocated by the CPR. It should be expected that even inexperienced litigants should comply with Orders, but if such compliance did not occur, then the Tribunal should consider whether a dismissal is fair and just in the circumstances. This consideration will entail a review of the reasons behind the non-compliance, any attempt to comply, the nature and extent of the failure, and the prejudice that non-compliance has caused.

In Thorntons and Clarion (2 separate appeals dealing with a similar issue), the ratepayer made a proposal to alter the 2010 rating list entry. Agreement was reached on the valuation, the Valuation Office altered the entry and the proposal was treated as having been withdrawn. Over a year later, the ratepayer made a second proposal to challenge the altered list entry. The Valuation Office did not challenge the validity of the second proposal, but the VT of its own motion found it invalid because an earlier proposal on the same grounds had been agreed and actioned. The VT considered that allowing the second proposal would be an abuse of process.

Once again the UT disagreed with the VT. The second proposal was not made “on the same ground” as the first, nor was it “arising from the same event” so could not fall foul of the restrictions enshrined in the Regulations governing these types of appeal. The first proposal was against the compiled list entry, the second against the altered entry. Although it was unattractive for the ratepayer to challenge a previously agreed entry, it was not prohibited for the ratepayer to do so.

The UT also queried why the VT had taken the invalidity issue when it had not been before them. The Valuation Office could have (1) applied to strike out the appeal as it had no reasonable prospect of succeeding or (2) applied for a notice of invalidity in that the valuation had been previously agreed, but chose neither option. When looking at the abuse of process allegation, the Tribunal again looked at case law from the civil courts but there was no foundation for such an allegation. The UT also queried the VT’s decision to dismiss the appeal without giving the ratepayer sufficient time to consider and respond to the VT’s approach.

Key points

  • Parties should endeavour to comply with Tribunal orders upon risk of strike out. If non-compliance is unavoidable, then the onus is on the party to explain the reasons behind this non-compliance and to minimise prejudice.
  • The Tribunals are mindful of the need for justice and fairness in determining appeals and there will hopefully be more of an onus on the VT to avoid procedural curiosities in favour of substantive issues.

****The Welsh Government is currently consulting on ways to minimise business rates avoidance. All occupiers with properties in Wales should be aware that responses should be submitted by 27 June as the consultation tackles both “bogus” and legitimate mitigation strategies****