Gardiner, R (on the application of) v Swindon Borough Council

Judgment

1. MR JUSTICE HARRISON: This is an appeal by Mr Gardiner against a decision of the Wiltshire Valuation Tribunal dated 25 June 2002 when they dismissed his appeal against the decision of Swindon Borough Council that Ms Rouse was liable for the council tax on 10 Horace Street, Rodbourne, Swindon, a house which is owned by Mr Gardiner. Mr Gardiner's case was that Ms Rouse lived in the house as his housekeeper. The council's case was that she lived with him as husband and wife. If Mr Gardiner was correct, she would not be liable for the council tax. If the council was correct, she would be liable for the council tax under section 9(3)(b) of the Local Government Finance Act 1992.

2. On the day of the hearing before the Tribunal, no-one turned up for the council. After a telephone call, a Mr Wirth turned up who did not know anything about the case. The Tribunal already had the council's statement of case from a previously adjourned hearing when the matter had been adjourned to the date of this hearing. As Mr Gardiner was, in the words of the Tribunal, "ready to proceed", the Tribunal decided that it was in the interests of justice for the hearing to proceed. It is clear that, although Mr Gardiner told me today that he was not happy with that position, it is clear that he did not make an application for any adjournment.

3. The council's statement of case contained the observation that, in an application for a transfer of council property completed by Ms Rouse on 25 January 1993, she styled Mr Gardiner as her partner and Danny Gardiner as her partner's son. In the same application, Mr Gardiner and Danny were included in a box prefaced with the word "family" -- being persons not living with her, but who wished to be housed with her. The statement of case also observed that Ms Rouse had said that she was expecting a child in July 1993 and that a child named Matthew Edward Rouse-Gardiner was born on 4 August 1993, and a birth certificate was attached. The final observation to which I refer in that statement of case was that the council had repeatedly invited Mr Gardiner and Ms Rouse to submit evidence to support their assertion that Ms Rouse was Mr Gardiner's housekeeper, but no evidence had been provided.

4. Mr Gardiner gave evidence before the Tribunal. When recording a summary of his evidence, the Tribunal stated in their decision letter that Mr Gardiner had submitted that the whole proceedings were bad in law. They made reference to the fact that, in a letter of 15 August 1997 to a Mr Logan, Mr Gardiner had referred to his "girlfriend". Mr Gardiner had said that the "girlfriend" was somebody called Rebecca Plum and not Ms Rouse. He admitted that when, on 26 August 1997, he referred to "my good lady", he was referring to Ms Rouse. His case before the Tribunal was that Ms Rouse wanted a council house rather than a flat, and that Mr Gardiner and his son were included in the application form by her to get extra points. He said that Ms Rouse was his business partner and that she dealt with his correspondence when he was out of the country. She had moved in to 10 Horace Street in September 1995. Mr Gardiner maintained that he was not the natural father of the child referred to in the birth certificate, although it had a surname of Rouse-Gardiner. He said that Ms Rouse had asked him to be the child's godparent. He told the Tribunal that he was a diesel engineer with a factory manufacturing engines in India. He had been married to an Indian girl for 18 months until she was killed by an earthquake. Ms Rouse had moved into his property because the council had served a compulsory purchase order and it was necessary for the property to be occupied and Ms Rouse was there as the housekeeper at the property.

5. In giving the reasons for their decision, the Tribunal remarked that the mistakes which Mr Gardiner alleged had been made in the Magistrates' Court proceedings were not matters for the Tribunal. They said:

"Mr Gardiner says Ms Rouse is his housekeeper but there was no evidence of employment. She referred to him as her business partner on the application form for a council property, but there was no evidence of employment."

6. Having remarked that they had to decide the case on the balance of probabilities, they stated:

"For certain purposes Mr Gardiner is happy for Ms Rouse to be shown as his partner, ie the birth certificate. In others, Ms Rouse is happy to give the impression that she and Mr Gardiner are living as man and wife, ie the application for a council house. Then there is the correspondence. We feel that on the basis of the evidence presented, Mr Gardiner and Ms Rouse give the impression that they are living together as man and spouse, and the council are correct in their assumption."

The appeal was therefore dismissed.

7. I have mentioned to Mr Gardiner that he has to show an error of law in the decision of the Tribunal. When asked what errors of law he was saying had been made by the Tribunal, his response was that the council could not be bothered to turn up at the hearing. It is true that the council did not turn up. Their account was that they had not received the notification of the date. It does not matter for my purposes whether that was right, the main thing is that the council did not turn up. Mr Gardiner says that the council misled him into believing that all the issues over the years would be dealt with by the Valuation Tribunal. There is a very significant history to this case and I do not intend to refer to the long chronology, however there is no evidence produced to me that the council had said that the Tribunal would deal with all the issues that had occured over the years. In fact, I am quite satisfied that they would not have said so because they were not relevant to the issue which they had to decide. Indeed, as I have already remarked, they did state in their reasons for the decision that the mistakes allegedly made in the magistrates' proceedings, which form part of the claimant's complaints relating to the history of this matter, were not matters for the Tribunal.

8. Mr Gardiner maintains that the affidavit of Mr Carter which accompanied the council's statement of case could not be challenged. It is right to say that there was no witness there for him to cross-examine, but of course it was open to him to give evidence about the matters contained in the affidavit and it is quite clear that he did so. I understand his point that it is difficult to argue matters when there is nobody there on the other side, but the fact that there was no one to contradict him was in his favour. That was a situation which was arguably more favourable to him insofar as the Tribunal did not hear argument against what he had said. It is clear from the decision of the Tribunal that there was no application by Mr Gardiner for the matter to be adjourned. Indeed, they stated that Mr Gardiner was ready to proceed.

9. Mr Gardiner has repeated to me on a few occasions today that the council had previously stated that neither he nor Ms Rouse had appealed in the past which, he said, was untrue. That is a matter about which he plainly feels strongly. However, that is not a matter relevant to a decision on this appeal before this court. This court is concerned with deciding whether there was an error of law in the decision by the Valuation Tribunal in relation to an appeal which was undoubtedly brought by Mr Gardiner.

10. Mr Gardiner again seeks to raise the complaints relating to the finding of the justices which, as I mentioned, the Valuation Tribunal, rightly in my view, decided were not matters for them. By virtue of Regulation 51 of the Valuation and Community Charge Tribunal Amendment Regulations 1993, an appeal from a Tribunal to the High Court has to be on a question of law. I have considered and read the papers which have been submitted by Mr Gardiner in this case and, in so far as they touch upon the issue before the Valuation Tribunal as to whether Ms Rouse was his housekeeper or whether he was living with her as husband and wife, the points that he has raised in the papers are points which go to the merits of the case and do not involve any arguable error of law.

11. The other matters, and there are many of them which he raises in the papers, are not relevant at all to these proceedings. It was for the Tribunal, who heard Mr Gardiner give evidence and who considered the council's written documents, to decide the issue of fact, which they did decide. In no way could that decision, in my view, be said to be Wednesbury unreasonable. There was no error of law involved by the Tribunal on the appeal. In my judgment, the appeal is misconceived and is without merit and is, therefore, dismissed. So your appeal is dismissed, Mr Gardiner.

12. MR HILL: My Lord, can I ask for costs? I think you have a schedule which was lodged with the court and served on Mr Gardiner. My Lord, it is very succinct because it deals solely with the cost of counsel. There is no separate claim for the legal fees incurred by the in-house legal department of the borough council. It relates solely to my involvement in this case from January until today. I notice that it excludes any reference to VAT which ought to be claimed and there is an element of confusion between items 3 and 4 which ought properly to be elided into a single brief fee of £1,000. The 125 at the end is an error. The total fee is £2,500 plus VAT.

13. MR JUSTICE HARRISON: If that is being pursued then you have to tell me what the VAT figure is, do you not? If I have to make an order it has to be the round sum. Whilst you are doing your arithmetic -- Mr Gardiner, you have been served with a document called "schedule of costs" --

14. CLAIMANT: No, I have not, My Lord.

15. MR JUSTICE HARRISON: Mr Hill, Mr Gardiner says he has not received the schedule of costs.

16. MR HILL: It was sent on 20 February.

17. CLAIMANT: Never arrived, my Lord. I have not had it. All I have had from the council is their case and their things.

18. MR JUSTICE HARRISON: Have you got a spare copy? Mr Hill is going to give you a copy. It is a very short document. Will you have it in your hand? Will you have a look at it please?

19. CLAIMANT: Yes.

20. MR JUSTICE HARRISON: You will see it says that the respondent is just claiming counsel's costs, not their in-house solicitor's costs. It gives the seniority of Mr Hill and it is based upon counsel's fees of £125 per hour. Then there is the first item of £500 which is for advice by telephone and research over a period of 4 hours between January and February of this year. £1,000 for drafting the skeleton argument involving 6 hours early in January, and £1,000 for preparing for the hearing -- a period of 6 hours -- and in February, the last item number 4 has been deleted. So that the total is £2,500 and we are about to be told what the amount for VAT is.

21. MR HILL: My Lord, it is £437.50, which is £2,937.50.

22. MR JUSTICE HARRISON: Thank you very much. Mr Gardiner, two points; one is: do you accept that you should pay the costs or not?

23. CLAIMANT: I do not, my Lord, no.

24. MR JUSTICE HARRISON: Why not?

25. CLAIMANT: Basically, my Lord, because I do not believe that this case has ever been heard -- the actual evidence. It has been going on and on and on and I do not believe that I am to blame for all the problems. If the council had acted correctly in the first place, the appeal would have gone through in the first instance, going right the way back to 1995, because this case has been dragging on since 1995. The other point that you raised about the Valuation Tribunal and the documents you referred to, ie their particular points that they raised, the Valuation Tribunal did not allow those to be challenged because the actual documents show --

26. MR JUSTICE HARRISON: I am not going back to the merits of the decision, I just simply want to know why you should not pay the costs.

27. CLAIMANT: All I am saying is that I do not think that I have had a fair shake, that I have been able to stand in a court of law and have answers to the questions that need to be answered. The council will not answer them. For example, I keep going back to it, why did Mr Carter say that I did not appeal when he dealt with it on two previous occasions?

28. MR JUSTICE HARRISON: We have been over that.

29. CLAIMANT: The council told me, and I have the letters in these files, that that will be dealt with at the Tribunal. The Tribunal said they cannot deal with it. The affidavit was prejudicial to the case pure and simply because it stated in there that the magistrates had made that decision and confirmed that Ms Rouse was liable. The magistrates are not entitled to do that, which is what Ms Rouse went to the High Court for in the first place, and she ended up fighting the council.

30. MR JUSTICE HARRISON: I am talking about the costs of this case.

31. CLAIMANT: All this information that they have got there -- if you looked at the original bill, which they have relied, basically on the original application for judicial review which cost Ms Rouse £1,900-odd, now that has been bumped up to £2,000 to provide the court with the same information.

32. MR JUSTICE HARRISON: Do you have any comment on the actual amount, not whether you should pay it, but if you were to pay it -- the sum of £2,370?

33. MR HILL: I think it is unfair, my Lord.

34. MR JUSTICE HARRISON: Thank you very much. I am satisfied, having decided that this appeal was misconceived and without merit, that the appellant should pay the respondent's costs. I am also satisfied that the amount is reasonable bearing in mind in particular that the respondent has not claimed for any of their in-house solicitor's costs. I am not satisfied that Mr Gardener, in the comments he has just made to me, has produced any good reason why he should not pay the costs in that amount. It follows that there will be an order that the appellant should pay the respondent's costs in the sum of £2,937.50. Thank you both very much.