Menu
The decision of the Upper Tribunal (Lands Chamber) in The Appeal of Ryan Fisher Carpet and Vinyl Showroom (2018) UKUT 0153 (LC) is the latest in a line of disputes concerning the procedural approach adopted by the Valuation Tribunal for England (VTE) in dealing with business rates appeals.
In this case the ratepayer, representing themselves, had made an appeal against a notice from the Valuation Officer increasing the assessment of their premises. The Valuation Officer considered the appeal to be invalid and issued an invalidity notice. The ratepayer appealed against that notice and the appeal was referred to the VTE for determination. The VTE listed the appeal for hearing on 21 September 2017 and issued its standard directions with the notice of hearing, requiring the parties to exchange evidence in advance of the hearing and provide copies of the documents exchanged to the VTE at least two weeks before the hearing. The appellant contacted the VTE more than two weeks before the hearing date to explain that he would be away on holiday on the proposed hearing date and to request that the hearing be postponed and an alternative date arranged. The VTE responded to say that it considered the postponement request to be “premature”.
Nearer the hearing date, the appellant contacted the VTE again to renew his request for a postponement of the hearing as he would be away on holiday on the hearing date. The VTE responded to say that the postponement request had been declined because he had failed to submit an evidence bundle. In response to this the appellant submitted a detailed letter and other documents, together with an apology for being unable to attend due to absence on holiday. The appellant did not attend the hearing and, in his absence, the appeal was dismissed because “In the panel’s view, there were no exceptional reasons provided for the appellant’s failure to follow the direction”. The appellant appealed to the Upper Tribunal (Lands Chamber) against this decision.
The Upper Tribunal reviewed its guidance on the proper approach to be taken by the VTE to compliance with its own practice directions from the Simpsons Malt Ltd case and concluded that “it was unlawful for the VTE to adopt a policy of dismissing all appeals where there had been non-compliance with a procedural direction unless exceptional reasons could be relied on to excuse the breach”. The proper approach, where there had been a breach of directions and relief is sought from sanctions in respect of that breach is to apply the systematic approach now used by the civil courts, explained by the Court of Appeal in Denton v TH White Ltd [2014] 1 WLR 3926, and by the Supreme Court in BPP Holdings v Commissioners for Her Majesty’s Revenue and Customs [2017] 1 WLR 2945.
The Upper Tribunal concluded that the VTE had applied an impermissible test of allowing postponement requests only where “exceptional reasons” applied, and of dismissing appeals where evidence bundles had not been submitted within the required timescale unless there were, again, “exceptional reasons” to justify non-compliance. As these policies were not permissible ones, the appeal must be allowed and the matter remitted to the VTE for further consideration. The Upper Tribunal was also critical of the Valuation Officer’s “ambiguous response” to the ratepayer’s appeal and reinforced its comments from Simpsons Malt Ltd that Valuation Officers “will be expected to adopt a more principled approach from the outset” in matters such as this.
Our sympathies go out to the ratepayer who, representing himself, has endured months of procedural wrangling with the Valuation Officer and with the Valuation Tribunal for England over the alleged invalidity of his appeal. After all this, he now has his appeal remitted to the VTE to consider whether the rateable value of his property is correct. Surely, it would have been much simpler for all parties to have considered this, which is after all the substantive issue, from the outset.
Looking at the wider picture, we now have a line of cases from Simpsons Malt, through the appeals of Thorntons plc and Clarion Solicitors Limited, to this one, all of them concerned with procedural issues in rating appeals before the VTE. The common thread in all these cases is that compliance with rules is not to be regarded as an end in itself and should never be allowed to assume a greater importance than doing justice in each case. It is very much to be hoped that all those involved will embrace that proposition and revert to examining first what is the correct outcome in each case, rather than focusing on means of disposing of appeals through procedural points and without considering that issue.
