Clark, R (On the Application Of) v Bracknell Forest Borough Council

MR JUSTICE MUNBY: This is an appeal by Dr Dale Clark, brought under regulation 51(1) of the Valuation and Community Charge Tribunal's Regulations 1989 (as amended) from a decision of Berkshire Valuation Tribunal given on 23rd April 2002, dismissing his appeal from the decision of Bracknell Forest Council which had decided to treat him as being liable for Council Tax in respect of a property, 13 Waverley, Bracknell, Berkshire, for the period from 25th July 1995 to 1st March 1999.

Mr Clark has acted in this matter, throughout, as a litigant in person. He is not merely a highly intelligent but also a highly educated man, having not merely an Honours Degree with a Bachelor of Science, but a Doctorate in Philosophy. That is apparent from the papers which he, himself, has lodged in support of this current appeal. He is no stranger to this court, having litigated extensively in recent years, albeit in relation to a wholly different topic and subject matter.

His notice of appeal is hopelessly defective in form. The relief he seeks is that the liability orders obtained against him be quashed. His grounds for appeal are stated as being: "The Tribunal erred in law, procedure and interpretation of fact". That notice of appeal was lodged on 23rd May 2002. When its deficiencies were pointed out to him by the Administrative Court Office, he wrote a letter dated 19th July 2002 setting out four grounds of appeal. He also lodged a large bundle, much of it completely irrelevant to any matter which arises in the present appeal.

The appeal has for some time been listed for hearing today, 1st December 2003. In order to accommodate the appellant's ill health, and at his request, the matter was listed for hearing at 11 am. At approximately 9.30 am, my clerk received a telephone call from him saying that he was too ill to attend the hearing, suggesting the possible establishment of a telephone link as a substitute for his presence, and indicating that he would shortly be faxing through his skeleton argument. That skeleton argument, being the first document to set out his case in any detail at all, was received by me at approximately 9.40 am. He had not bothered to send a copy of it to the respondent who has, therefore, had little time to respond to it. The respondent, as I understand it, did not receive the skeleton until approximately 10 am.

The appellant has not, as such, sought an adjournment. It was wholly impracticable in the circumstances to establish a telephone link when the first suggestion of such a link had been made, as I said, at approximately 9.30 am. The respondent was content to proceed and it seemed to me, in all the circumstances, that the fair and just course for me to adopt was to proceed with the hearing of the appeal, the nature and detail of the appellant's case being, as it seems to me, sufficiently set out in his skeleton argument.

In his skeleton argument the appellant sets out what he describes as the "factual background". That contains a large number of factual allegations, some of which are accepted by the respondent, some of which are not, and many of which raise matters which, whether or not canvassed before the Tribunal, are not the subject of any evidence in proper form lodged with this court. I decline, therefore, simply to proceed, as the appellant would have me, on the footing that the facts are as he asserts them to be. The Tribunal was concerned with evidence not assertion and insofar as this court is concerned with matters of fact at all, this court, likewise, must be concerned with facts established by proper evidence and not with mere assertion.

I have referred to the respondent. The respondent, so selected by the appellant, is, in fact, the Council. The Council contends that it is not the correct respondent and that the correct respondent is, in fact, the Tribunal, albeit, as the respondent rightly asserts, it, as the relevant local authority, has a right to be heard on the appeal and, indeed, has an interest in the outcome. It does not seem to me necessary, in the particular circumstances of this case, to consider any further whether that contention of the respondent is correct, although I suspect very strongly that it is. The point is, in the final analysis, one of technicality, though none the worse for that, but not one that requires to be considered further, given my conclusion that this is an appeal which must, on any basis, fail.

I turn, therefore, to the substance of the appeal. The appellant has, at all material times, been the registered freehold proprietor of the property I have mentioned. That is a fact, being demonstrated by official extracts from Her Majesty's Land Registry. The question of the asserted Council Tax arrears appears first to have been ventilated in about August 1999. Certainly on 25th August 1999 the appellant contacted the Council by telephone, claiming that he had not been living in the property and that, in fact, his parents were the owners of the property. He elaborated that contention in a letter dated 10th October 1999 wherein he asserted that he had "sold the above property in 1995 and no longer [had] any beneficial interest in it."

This was the first time that the appellant had mentioned either of these matters to the Council. The Council's response was to write, pointing out to him that the Land Registry still showed him as the owner of the property and asserting that he was liable for Council Tax. The local authority says that it sent him -- although he disputes, I think, that he ever received it -- a letter inviting him, if he was entitled to a single person discount, to fill in the appropriate form and return it making that claim. The fact is that no such form was ever submitted by the appellant to the Council.

The process of enforcement continued, culminating in the making by the East Berkshire Magistrates' Court, on 3rd October 2001, of a liability order. That prompted the appellant's appeal to the Tribunal by a letter dated 12th November 2001, whereupon the Council reviewed the matter again but, by letter dated 8th January 2002, notified the appellant that, in its view, he was still liable for the tax. The hearing before the Tribunal took place on 25th February 2002. Its decision, as I have said, was issued on 23rd April 2002 and in the event the Tribunal upheld the Council's decision. The appellant has since pursued the appeal which I have mentioned, being the statutory appeal which the legislation permits him to make.

I do not propose to go through the relevant legislation in any detail. Section 6 of the Local Government Finance Act 1992 is the key provision, determining who is liable to pay Council Tax, and Section 11 provides for the discounts that may be given in certain circumstances. The effect of these provisions is that a single person residing in the property is entitled to a 25 per cent discount, whereas if the property is vacant, the person otherwise liable is entitled to a discount of 50 per cent.

I turn to the appellant's grounds of appeal, as set out in his letter dated 19th July 2002. His first ground of appeal is stated as being that: "The Tribunal erred in not realising that the granting of a discount and/or exemption under the Local Government Finance (LGF) Act 1992 is not discretionary or subject to any time limit."

Mr Falkowski who appears on behalf of the respondent, and for whose very detailed skeleton argument and oral submissions I am very grateful, submits, correctly in my judgment, that this ground of appeal is misconceived. I do not take up time reading the relevant passages from the Tribunal's decision but the fact is, as Mr Falkowski submits, that the Tribunal did not state, nor proceed upon the basis, that the granting of a discount or exemption was either discretionary or subject to a time limit.

The Tribunal correctly identified two possible discounts that might apply. The first is an exemption applicable where property is undergoing major repair so as to render it habitable. The Tribunal said:

As that extract indicates, Mr Falkowski is entirely correct when he submits that, in relation to that first possible exemption, the issue was decided not on the basis of a discretion or time limit but on the simple fact that there was a complete absence of any evidence, other than the mere assertion of Dr Clark. The other discount which the Tribunal had to consider was the single person discount. Again, Mr Falkowski convincingly demonstrates that the Tribunal's decision in relation to this exemption was not based, as the appellant would have it, on discretion or time limit but was appropriately based on a review of the evidence.

Mr Falkowski submits, and I agree, that the Tribunal correctly referred to the conditions necessary if either of those exemptions was to apply, and correctly considered the evidence in determining whether those conditions were or, as the Tribunal found, were not met. The Tribunal's approach was, in my judgment, correct. There is, as Mr Falkowski submits, no substance in that ground of appeal.

The second ground of appeal, as set out in the appellant's letter dated 19th July 2002, was: "The Tribunal did not consider my application for a 50 per cent discount and a class C exemption". That, Mr Falkowski correctly submits, is simply not so. It is quite plain from the Tribunal's own written decision that it considered the appellant's assertion that he was entitled to a discount on the basis that the property was vacant. Indeed, as Mr Falkowski points out, one finds included in the decision of the Tribunal the statement: "He contended that, as the property was empty, a discount should apply".

It is perfectly apparent that the Tribunal was, as Mr Falkowski submits, clearly aware of this and that it had expressly considered the appellant's argument that he was entitled to a discount on the basis of the property being empty. It concluded:

The third ground of appeal, as set out in the letter dated 19th July 2002, is: "The Tribunal misdirected itself regarding the state of the evidence and the standard of proof required." In my judgment there is simply no basis upon which the appellant can sensibly contend that the Tribunal misdirected itself either regarding the state of the evidence or as to the requisite standard of proof.

Wrapped up in this complaint, as elaborated by the appellant in his skeleton argument, is his assertion before me that all his factual assertions were accepted and unchallenged by the Council in front of the Tribunal. That is simply not so as a matter of fact. Moreover, the Tribunal was, it seems to me, fully entitled to make findings of fact adverse to the appellant when his case was, as in so many material respects it was, based on no more than bald assertion, wholly unsupported by the kind of documentary and other supporting evidence that one might have expected.

Insofar as this ground of appeal relates to the evidence going to the appellant's ownership of the property, the Tribunal was plainly entitled, as previously had been the Council, to rely on the evidence provided by the Land Registry documents. In relation to that issue, as Mr Falkowski correctly submits, the Tribunal referred to the relevant case law and correctly applied it. In relation to the matter of the applicable discounts, the Tribunal, as I have already observed, correctly noted that there was no satisfactory evidence as to the true state of the repair of the property at the relevant time and the appellant's assertions were unsubstantiated.

The simple fact is that the Tribunal had the submissions of both parties before it. It had before it such evidence as the appellant saw fit to adduce. The Tribunal had regard to all the relevant evidence when arriving at its conclusions. There is no error of law and no basis whatever for the assertion that the Tribunal either misunderstood or misdirected itself in regard to the evidence nor, in my judgment, was there any misdirection on the burden of proof. As to the burden of proof, the simple fact at the end of the day is that, in respect of the various factual matters which it fell to him to establish to the satisfaction of the Tribunal if his appeal would be successful, the appellant simply did not provide any sufficient evidence to establish his case or to supplement what were, in truth, his bare, unsupported and unsubstantiated allegations.

The appellant, in his skeleton argument, asserts that the Tribunal had a duty to consider all factual submissions and pull out further evidence if it felt it was necessary to prove a case. The first part of that assertion I readily accept, as indeed the second part, but the simple fact, as Mr Falkowski points out, is that it was for the appellant to prove his case. It was for the appellant to adduce before the Tribunal the evidence upon which he wished to rely. There is no beginning of an argument that the Tribunal failed to consider the materials put before it by the appellant. It was not for the Tribunal to suggest an adjournment for the purpose of enabling the appellant to obtain further evidence in the absence of an application by the appellant for such an adjournment. The simple fact is that the Tribunal considered, properly and fairly, all the materials put before it by the appellant but those materials, for reasons which, in large measure, I have already set out, wholly failed to establish his case or any part of it.

The fourth ground of appeal as set out in the letter dated 19th July 2002 is: "The Tribunal erred in finding that the Bracknell property was my sole or main residence and that I was liable." That ground of appeal also fails. As elaborated in his skeleton argument, the appellant's case involves two different assertions. The first is that, as he would have it, he had, at the material time, no beneficial interest in the property, having, as he asserted in the letter dated 10th October 1999 to which I have already referred, sold it to his parents in 1995.

The appellant's case is based on a misunderstanding of the relevant legislation. A taxpayer's liability as "owner" under Section 6 of the Act depends upon his having a "material interest" in the property. The appellant's contention that, as he sold the property for value and accordingly has no equitable interest in it, he cannot be said to retain a material interest in the property, breaks down on the simple fact, as pointed out by Mr Falkowski, that "material interest" is, for those purposes, defined in such a way that it includes a person who has a freehold interest in the land, whether beneficial or otherwise. There is, as I have already observed, no doubt that Dr Clark is the freehold owner of the land.

The other strand of the appellant's case in relation to this ground of appeal is that the Tribunal wrongly considered two authorities dealing with the question of what is a sole or main residence and, moreover, misunderstood and misapplied those authorities. I put the point in that way because the appellant, in his skeleton argument, complains of procedural irregularity in as much as the Tribunal, he asserts, considered those two authorities, although they had not been placed before the Tribunal. I do not understand that basis of complaint. The question is, surely, whether or not the Tribunal, in the event, correctly applied the principles to be deduced from the relevant authorities. So far as that is concerned, the two authorities are, as it seems to me, authorities which are relevant, authorities which went to the point on which the Tribunal had had the benefit of the submissions of both parties and, more to the point, were authorities the principles in which were correctly understood and correctly applied by the Tribunal.

At the end of the day, the Tribunal had to make a finding of fact. Was the appellant, within the meaning of the legislation, the "owner" of the property and was the property his sole or main residence? On both of those issues the Tribunal, it seems to me, referred to all the relevant evidence that had been put before it, correctly understood the law and the authorities which it mentioned as indicating that it had to have regard to all the relevant factors, and having done so, as it seems to me correctly, concluded, having regard to all the relevant evidence and correctly applying the legal principles, that the appellant was the owner of the property and that it was his sole or main residence. As Mr Falkowski points out, its decision on these matters was based on a factual finding that "He held a freehold interest in the property and it was to 13 Waverley that he returned when his living abroad did not work out."

That was a factual finding which, in my judgment, the Tribunal was plainly entitled to make. In the light of all the material before it, the Tribunal was entitled to reject the evidence of the appellant. In the light of that finding of primary fact, the Tribunal was, as a matter of law, entitled to conclude that the property was, as it found, the appellant's sole or main residence. The fact that the appellant takes a different view is neither here nor there. It is, after all, the function of the Tribunal to determine, as a matter of fact, whether the facts are as the appellant asserts or as the local authority asserts.

So much for the grounds of appeal as set out in the letter dated 19th July 2002. Certain additional grounds of appeal are canvassed by the appellant in his skeleton argument. He asserts that the Tribunal misdirected itself as to its jurisdictional powers and function in as much as it referred to the Wednesbury principle and, as he would have it, considered its function to be that of merely determining whether the Council had acted reasonably -- thus, as he submits, demonstrating that it erroneously saw its role as limited to carrying out something akin to a judicial review of the Council's decision.

The appellant correctly submits that the Tribunal's role is to consider appeals by those aggrieved. The Tribunal is an appellate, not a reviewing body. It has the power to override the factual decisions of the Council. He draws attention, in particular, to a comment in the Tribunal's determination that it is not for the Tribunal to substitute their opinion for that of an authority and submits that that is an erroneous statement of law.

If the matter was quite as simple and straightforward as the appellant would have me accept, if, indeed, the Tribunal did direct itself in that way, then, as Mr Falkowski very properly accepts, the appellant might have a good point. However, as Mr Falkowski points out, this complaint has to be understood in the context of the Tribunal's written determination and Mr Falkowski points to that passage towards the end of its determination when the Tribunal said:

As can be seen from that extract, the Tribunal's formulation of the issue before it reflected the submission by Dr Clark whose position was, as recorded by the Tribunal, that the Billing Authority had been acting unreasonably. More to the point, it seems to me, on a fair reading of the Tribunal's determination read as a whole, that, in the final analysis, the Tribunal dismissed the appellant's appeal not because he had failed to make good a Wednesbury ground of challenge but because he had simply failed to adduce the evidence which had to be adduced, and adduced by him, if his appeal was to succeed.

The fact is, as we have already seen, that the Tribunal made certain findings of fact, having considered carefully the evidence and other materials put before it by the appellant. The Tribunal, as I have said, is not bound to accept the appellant's bare assertions and, as a fact-finding Tribunal, was entitled, if it saw fit, to reject, as in certain respects it did, the appellant's evidence. There is, in my judgment, no basis for the assertion that the Tribunal misdirected itself in the manner alleged by the appellant.

The appellant, in his skeleton argument, has referred to a number of other matters. There is no need for me to go through them in detail. There is, in my judgment, no more substance in them than there is in any of the other grounds of appeal that he relies upon. In my judgment, each and every one of the appellant's grounds of appeal (in which, lest there be any misunderstanding, I include not merely his so-called grounds of appeal as set out in his notice of appeal, and his grounds of appeal as set out in the letter dated 19th July 2002, but above all the other matters set out in his skeleton argument) fails and, accordingly, his appeal fails and must be dismissed.

The simple fact, as it seems to me, at the end of the day, is this. This was a fact-finding Tribunal which had to reach decisions on a number of discrete matters, in relation to each and every one of which it was for the appellant to establish his case by adducing, before the Tribunal, appropriate evidence and other materials sufficient to satisfy the Tribunal of those matters which, as a matter of law, it was for him to establish rather than for the local authority to disprove. The Tribunal concluded, as in my judgment it was entitled to do, that he had failed to establish those matters. The Tribunal made findings of fact which, in my judgment, were manifestly open to it to arrive at.

The appellant's stance before the Tribunal appears to have been that his appeal should succeed if he merely made some bare assertion, unsupported by documentary or other material of the kind which one would have expected to be available, unless the local authority was able to disprove the assertion. The Tribunal was entitled to find that matters required to be proved by the appellant were not proved merely by his bare assertion.

At the end of the day, the position, it seems to me, is very simple. The appellant is unable to demonstrate any error of law or any error of approach in the decision of the Tribunal. The Tribunal came to a decision on various matters of fact conformably with the law and with the evidence and other materials put before it. The appellant's appeal to this court, accordingly, must be dismissed just as his appeal to the Tribunal was, in my judgment, properly dismissed.

Mr Falkowski, you want me to summarily assess?

MR FALKOWSKI: Before I do, may I just raise one point. Mr Clark in his skeleton argument, paragraph 21:

In my Lord's judgment, my Lord said that I took my Lord to Section 6(5) and 'material interest' is defined as "beneficial or otherwise". It does not actually say that, my Lord, and if I was not clear in my submissions, I apologise. What one does in Section 6 is go through a list of persons who are potentially --

MR JUSTICE MUNBY: As I understood it, can we look at it, it defines it as freehold only.

MR FALKOWSKI: It means a freehold interest or leasehold interest which is granted for a period of six months or more. My Lord said it was beneficial or otherwise, unless I misunderstood or misheard.

MR JUSTICE MUNBY: What I intended to say, and the transcript of my judgment, when it is prepared, can be adjusted to reflect this, is that is the statutory definition and, therefore, it follows that it matters not whether it is a beneficial or other interest.

MR FALKOWSKI: I am grateful for that clarification, my Lord. A statement of costs has been prepared and sent to the court. It might be easier if I hand up another copy.

MR JUSTICE MUNBY: I have a copy. Has this been served on the claimant?

MR FALKOWSKI: Yes, my Lord.

MR JUSTICE MUNBY: It was served on the appropriate number of days before --

MR FALKOWSKI: It was, my Lord, yes.

MR JUSTICE MUNBY: This is the piece of paper that comes to a total of £5,250.

MR FALKOWSKI: Yes, my Lord. My instructing solicitors said it failed to include VAT. My instructing solicitor thinks that local authorities do not pay VAT. It may be that they do not need to. Would my Lord just give me a moment? Whatever the position is, they are not claiming it.

MR JUSTICE MUNBY: Unless things have changed, I reckon the only people who did not pay VAT were foreigners. I thought local governments paid VAT but got it back another way.

MR FALKOWSKI: I shall be paying VAT on whatever I receive.

MR JUSTICE MUNBY: The sum you are claiming is £5,250.

MR FALKOWSKI: It is, my Lord, yes.

MR JUSTICE MUNBY: So it is five hours at £100 an hour. This is a case where, effectively, you had to prepare proper bundles.

MR FALKOWSKI: Yes. Furthermore, I would submit that it was incumbent on me to prepare a case on the basis that the appellant might not turn up.

MR JUSTICE MUNBY: Yes, indeed. Well, Mr Falkowski, it seems to me that this is a case in which there should be a summary assessment of costs. The schedule before me, has it been signed?

MR FALKOWSKI: The copy which I gave to the court has not been. I have a signed copy here, my Lord.

MR JUSTICE MUNBY: The schedule before me in the sum of £5,250 has been sent to the appellant in the usual way. I am satisfied not merely that the respondent's costs should be summarily assessed but that they should be summarily assessed in the sum of £5,250 as set out in this statement of costs.

I add this observation by way of an explanation for my decision. This is a case in which, as I have mentioned, the appellant was appearing in person. I think I have already mentioned that the bundle prepared by the appellant was manifestly deficient. This, therefore, was a case in which the burden was thrown upon the respondent and, if I may say so, very properly and very helpfully taken up by the respondent, not merely to prepare a proper bundle for the court but also, through the pen and the mouth of Mr Falkowski, to put before the court much of the material which, in the ordinary course of events, one would have expected the appellant to put before the court through the pen and mouth of lawyers.

Therefore, insofar as the statement of costs includes items which one would not normally expect to be included in a respondent's statement of costs, they are items which, in the circumstances of this case, seem to me to be properly the subject of charge by the respondent on the appellant. Insofar as concerns the amount of work done and the hourly rates charged, there is nothing which, on the face of this statement of costs, even begins to suggest either an excessive number of hours of work or any excessive charge. The bill, in my assessment, is, in all the circumstances, an entirely proper one. I have no hesitation in accepting that the costs should be assessed in the full amount set out in that statement.

Accordingly, Mr Falkowski, unless there is any further or other order you want, I propose simply to make an order dismissing the appeal and ordering that the appellant is to pay the respondent's costs of, and occasioned by, the appeal, summarily assessed in the sum of £5,250 as set out in the statement of costs dated 25th November 2003.

MR FALKOWSKI: Thank you, my Lord.

MR JUSTICE MUNBY: Is there anything else?

MR FALKOWSKI: No, my Lord.