Salmon, R (on the application of) v Feltham Magistrates Court & Anor

MR JUSTICE STADLEN: This is an application by Mr John Salmon for judicial review of a decision by the first defendant, the Feltham Magistrates' Court, on 17th September 2007 to make a council tax liability order against him in the sum of £1,491.83. The second defendant is the London Borough of Hounslow. The first defendant did not appear or make submissions before this court. The second defendant was represented by Mr Choudhury of counsel and Mr Salmon appeared making submissions on his own behalf.

The application arises out of the liability order dated 17th September 2007 in respect of council tax payments said to have been due for the year 2007 to 2008 on a property at 144 Wellesley Road, Chiswick, London, which is in the London Borough of Hounslow.

The relevant property has a ground floor and a first and second floor. It is common ground that the ground floor is a separate dwelling for council tax purposes and is irrelevant for the issues to be decided on this application. The claimant, Mr Salmon, is the leasehold owner of the property which forms the first and second floor, together with the staircase leading to it, the house being a three-storey Victorian conversion.

There is a long background, leading up to the order that was made, of attempts by the Council to obtain council tax payments from Mr Salmon in respect of that first and second floor property on the basis of their conclusion that, because it was property satisfying the definition of a house in multiple occupation as defined in section 2C of the Council Tax (Liability of Owners) Regulations 1992, Mr Salmon is the person liable for council tax in respect of the first and second floor flat by virtue of section 8 of the Local Government Finance Act 1992, to whose provisions I shall return.

In essence, the Council formed the view, by reference to evidence to which I shall refer, some considerable time before the year 2007/2008 that the first and second floor flat satisfied the condition of a house in multiple occupation as defined in the regulation and that for that reason Mr Salmon was the person liable to pay council tax in respect of it. That was something that Mr Salmon did not accept and there was a dispute in relation to that.

So far as the matters giving rise to the decision which is subject of this application are concerned, the relevant chronology is as follows. On 19th March 2007, the second defendant issued a council tax demand in the sum of £1,394.50 to Mr Salmon in respect of the property described as the maisonette, first and second floors, 144 Wellesley Road, Chiswick. The council tax demand notice was sent to Mr Salmon at an address in Rue de la Révolution, Séte, France, which was the address in the council records for Mr Salmon, who had lived for some time in France. The demand was in conventional form and stated:

On 14th May 2007 the Council sent Mr Salmon at the same address in France a reminder notice called a Council Tax Arrears Notice, which said, so far as relevant, as follows:

It is not in dispute between the parties that this sum was not paid and no sum was paid. Accordingly, on 25th June 2007, a summons was issued addressed to Mr Salmon at his French address in the following terms:

There was a preliminary hearing of the Magistrates on 18th July 2007, which was adjourned, and at the adjourned hearing on 17th September 2007 the Lay Magistrates, of whom there were three, made a council tax liability order under regulation 34 of the Council (Tax Administration and Enforcement) Regulations 1992 in the sum of £1,394.53 in respect of the sum payable and outstanding, £72,30 in respect of the costs of complainant and a further £25 for costs, a total of 1,491.83. That is the order, and the decision to make it, which Mr Salmon seeks judicially to review.

Permission to make such an application was granted by Charles J on 1st November 2007. I was told in the skeleton argument by Mr Choudhury that he gave permission on the basis that it appeared that something might have "gone wrong" before the Magistrates in that they had not been provided with the full history of the matter and in particular in relation to the alleged status of the property, namely whether or not it was a house in multiple occupation. The skeleton argument continued that:

The claimant relied in essence on four discrete grounds. First, he relied on an argument that the regulations pursuant to which the summons was brought and the order was made were so fundamentally in conflict with the primary legislation pursuant to which they were made as to be ultra vires that legislation. Second, he submitted that an offer had been made by a Ms Abela on 3rd July 2007 to pay the council tax in respect of that property and for that reason the Council had lost the right, and indeed was statutorily prohibited, from proceeding with the summons against him. Third, he submitted that the property was in fact not properly characterised as a house in multiple occupation and that the decision of the Magistrates to accept that it was was to that extent wrong and should be for that reason quashed. Fourth, he said that his rights under Article 6 of the European Convention of Human Rights had been breached in that he had been deprived both by the Magistrates' conduct of the hearing and by conduct of the Council of his right to a fair trial.

So far as the ultra vires point is concerned, the matter was put this way in his original outline of skeleton arguments by Mr Salmon. Ground 6 of the application for judicial review is in these terms:

In his skeleton argument prepared for this hearing, Mr Salmon repeated reference to section 2 of the Act which states that liability should be determined on a daily basis on the situation pertaining at the end of the date and submitted:

It is therefore necessary in considering those submissions to contrast the Act and the Regulations. Section 2 of the Act provides as follows, insofar as material:

The Council (Tax Administration and Enforcement) Regulations 1992 provide, so far as relevant, as follows:

The submission of Mr Salmon is that the reason that the regulations are ultra vires the Act is that they permit of the possibility of a liability order being made against somebody in respect of money that has been demanded pursuant to a demand notice and then a final notice in respect of an amount which is an amount in respect of a period that falls after the date either on which the demand is issued or at a date on which the order is made. Thus paragraph 20 of the regulations, which provides that "if the demand notice is issued before or during the relevant year, the notice shall require the making of payments on account of ... the billing authority's estimate of chargeable amount, made as respects the relevant year or part ... on the assumption ... that the person [to whom the demand is sent] will be liable to pay the council tax ... on every day after the issue of the notice..." is incompatible and ultra vires the Act because section 2 of the Act is based on and limited to a power on the part of a liability on the part of the council tax payer to pay council tax to be determined on a daily basis.

In my judgment, that submission is wholly unsustainable. If it were correct, it would mean that the entire system for collecting council tax in the last 16 years throughout England and Wales has been fundamentally flawed and unlawful because it is intrinsic and fundamental to that system that council tax is calculated before the start of the prospective council tax year and is collected by demands of the kind that were served in this case seeking payments by instalments or for the entire amount in advance at the option of the council tax payer and if the submission of the claimant in this case were right it would be unlawful for any system of collection to be implemented which enabled council tax to be collected other than daily in arrears or at some later period in arrears.

The flaw, in my judgment, in the submission of Mr Salmon is that it fails wholly to take account of, and indeed until his reply submissions he did not refer the court to, the provisions of schedule 2 to the Act. Those provisions, so far as relevant, are as follows. Paragraph (1), and this is under the heading "Administration":

In my judgment, it is crystal clear from those provisions, which are the provisions enabling the regulations which are said to be ultra vires the Act, that, when it comes to making regulations for the collection of council tax, the Act specifically empowered or authorised regulations to be made by reference to collecting amounts which a liable person will be liable to pay in the future and that the regulations may make provision, as the Secretary of State thinks fit, in relation to the collection of amounts which persons are liable to pay in respect of council tax and it is perfectly plain that this contemplates regulations made to enable collection of council tax prospectively rather than, or as well as, if necessary, in arrears. In my judgment that ground fails.

The next ground is by reference to an alleged offer to pay. The claimant, Mr Salmon, contended that the property was not a house in multiple occupation because it was his contention that there was at the time only one tenant of the first and second floor maisonette and that was a Ms Abela. As I have indicated, regulation 34(5) provides that if, after a summons has been issued in accordance with paragraph (2) but before the application is heard:

Mr Salmon's submission is that an offer was made on 3rd July by Ms Abela to the council to pay the council tax and therefore that the provision in section 5 is triggered and the local authority, the defendant, was bound to accept that amount and, in particular, the application shall not be proceeded with, that is to say that it was unlawful for the Council to proceed with the application and therefore for the Magistrates to act or make a liability order on that application.

There were two issues that arose out of this ground. The first was an evidential question as to whether such an offer was made such as to satisfy the condition of regulation 34(5) and the second was, if such an offer was made by Ms Abela, whether it satisfied section 34(5) notwithstanding that it was not made by Mr Salmon himself or an agent on his behalf.

As far as the first point is concerned, the evidential position is this. At the hearing, the only people to give live oral testimony were Mr Winter on behalf of the Council and Mr Salmon on his own behalf. Mrs Abela was present in court but did not go into the witness box and give oral testimony. She did, however, produce a witness statement dated 10th July 2007 which was tendered to the Magistrates' Court by Mr Salmon and which said, as far as material:

There is a note in summary form of what occurred at the hearing prepared by Mrs Armitage, who was legal investor at Feltham Magistrates' Court, in which she recorded Mr Salmon on affirmation saying:

Mr Choudhury on behalf of the defendant submits that, based on that evidence, it was not only open to the Magistrates to find that there had been no tender of an amount equal to the aggregate not only of the council tax but also of the costs reasonably incurred by the authority but that that was, on the evidence, the correct finding. Ms Abela did not in her witness statement say that she offered to pay the council tax but merely that she enquired about paying it. Moreover, she did not recall the girl that she spoke to as having said that she refused to accept any such offer but merely that she did not have to pay the tax, which is a very different thing and, insofar as Mr Salmon is recorded by Mrs Armitage as having said that payment had been offered by his tenant, insofar as that evidence was inconsistent with the written witness statement of Ms Abela to the extent that he suggested that it had been an offer rather than an enquiry, in my judgment the Magistrates were entirely entitled to not accept that evidence, not least having regard to the fact that Ms Abela was present in court and could have been called as a witness by Mr Salmon in order to corroborate his version of what he said occurred as distinct from, and in preference to, her own signed written version of what occurred.

In front of me, Mr Salmon said that in his evidence to the Magistrates he said that she had told him that she had phoned the Council and said that she wanted to pay but that the girl said that she could not accept payment. That, of course, is inconsistent with the account given by Ms Abela in her witness statement. However, and in any event, he went on to say that he could not be certain whether he said to the Magistrates' Court that Mrs Abela had told him that she had said to the Council girl that she had offered to pay the costs as well as the council tax liability. That being so, whatever the position in relation to any difference of evidence as between Ms Abela and Mr Salmon on the question of whether it was an offer or merely an enquiry, the offer, had it been made and had the Magistrates found that it had been made, would not have been sufficient to satisfy the requirement of section 35(4) of the regulations in that it was not a tender of an amount including in respect of the defendant Council's costs. In those circumstances, the local authority was not obliged not to proceed with the application.

It is in any event not the function of this court to second guess findings of fact made by the Magistrates' Court. There is nothing in the evidence as to what occurred in my judgment that brings this case within that very exceptional category of cases in which there may be jurisdiction for the Administrative Court to overturn a finding of fact made by a Magistrates' Court. It is in any event to be observed that Mr Salmon had it well within his ability to call Ms Abela to give evidence and did not do so.

Mr Choudhury had an alternative argument, which is that, even if the Magistrates were wrong not to find that Mrs Abela had indeed tendered the council tax sum and the costs, section 34(5) would not have been triggered because section 34 (5) only applies to a payment made by the defendant to the summons, that is to say the person liable to pay the council tax, or an agent on his or her behalf. It is not necessary, having regard to my previous finding, for me to decide that fact but I express the view that that submission does not seem to me to be correct. It does not seem to me that, in circumstances where a third party, even if not an agent of the defendant, tenders a payment a fortiori where such a payment is accepted by a local authority that has issued a summons for non-payment against the defendant, in such circumstances the authority is not obliged to accept the amount or, if it has accepted the amount or irrespective of whether it has accepted it or not, it is nonetheless entitled to proceed with the application against the defendant. The purpose of issuing a summons is to secure payment of the sum due. If the sum due is paid or tendered, it does not seem to me that there would be any legitimate interest on the part of the Council in proceeding with an application against the defendant, notwithstanding that he is the person liable in respect of that amount.

The next ground relied on by Mr Salmon in support of his application was that the Council was wrong to designate the first and second floor maisonette as a house in multiple occupation and/or that the Magistrates' decision is flawed insofar as they decided or to have been taken to have reached their decision on the basis that it was or even that it had been so designated by the Council.

There are two aspects to this. One is the underlying question as to whether the first and second floor property was at the relevant time a property in multiple occupation within the meaning of paragraph 2C(b)(1) of the Council Tax (Liability for Owners) Regulations 1992. The second is, irrespective of whether it was or whether it was not, whether that was a matter that would provide Mr Salmon with a defence to the summons in the Magistrates' Court for non-payment of the sum demanded in March.

Section 6 of the Act provides as follows:

However, section 8 provides as follows:

Such prescription as is referred to or contemplated by section 8 occurs in relation to houses in multiple occupation by virtue of the Council Tax (Liability of Owners) Regulations 1992, which provides so far as material as follows:

The background which I referred at the beginning of this judgment is that inquiries made by the Council or on behalf of the Council satisfied the Council that the first and third floor property was indeed a property in multiple occupation within the statutory definition to which I have referred. There is before the court a witness statement of Ms McDonald, who was a visiting officer employed by Liberata UK, who says that she visited the property on three occasions to check residency situation as that would have a bearing on whether the property should be treated as a house in multiple occupation, in which case liability for council tax would lie with the owner:

Mr Winter made a witness statement for the purposes of this application and referred to the visit reported to him by Mrs McDonald. Mrs McDonald spoke to a tenant who told her that there were three tenants all on separate tenancy agreements (this is in relation to the 6th October 1997 visit and that Mr Salmon was the owner:

I should add in the context of the issue in relation to the alleged offer that Mr Winter in his witness statement referred to Mr Salmon's witness statement and his written evidence in which he said that the tenant had made an offer of payment by telephone to the revenues officer but that that offer had been refused:

Dealing with the HMO issue at the Magistrates' Court, he said that issue:

In the acknowledgment of service to this application by the first defendant, the Magistrates' Court, under "Decisions and Reasons" the following is stated:

There is produced before the court a note of Mr Winter's note which he prepared for the purposes of the hearing. So far as the multiple occupation point is concerned, they record as follows:

That is in a sense not surprising because it reflects the primary submission of Mr Choudhury on this matter, which is that the question of whether in fact the property was a house of multiple occupation such as to satisfy the statutory criteria is irrelevant, not only for the purposes of this court but also for the purposes of the Magistrates' Court. That is because paragraph 57(1) of the Council Tax (Administration and Enforcement) Regulations 1992 provides:

Section 16 of the Act provides:

Thus, the decision by the local authority that Mr Salmon was liable to pay council tax in respect of the first and second floor property, and the decision that that was because it was a house in multiple occupation, was a decision which he had a right under section 16 to appeal against to a valuation tribunal if aggrieved. Indeed, he was notified of the existence of that right in this very case but told me that he did not avail himself of that right in respect of this period, that is to say 2007/2008, prior to the summons or the date of the hearing in front of the Magistrates. If it were indeed the case that it was not for the purposes of 2007/2008 a house in multiple occupation for the purposes of the Act, then he would have had a right to appeal to a valuation tribunal on that ground and on that ground, had it been accepted by the Tribunal, the decision of the defendant that he is liable to pay council tax for 2007/2008 would have been overturned.

In those circumstances, I do not have the slightest doubt that that is a matter which could be the subject of an appeal under section 16 and therefore that by virtue of paragraph 57 of the Regulations it is a matter that could not be raised in the proceedings in front of the Magistrates' Court for non-payment of the sums contained in the demand and the arrears notice. In those circumstances, it seems to me that this ground of appeal is hopelessly misconceived.

I raised with Mr Choudhury in argument the question of whether, if Mr Salmon was right that he was entitled to raise this point in front of the Magistrates, then would the relevant point of inquiry in relation to the findings of the Magistrates' Court be on the question of whether they were right to find that it was a house in multiple occupation or rather that it had been so designated by the local authority. The mere statement of those alternative questions demonstrates how misconceived this ground of appeal or application is because it is simply not part of the function of the Magistrates' Court in hearing a summons such as that in this case to go behind the making of the demand notice to inquire into the validity of such an underlying decision as whether the defendant to the summons is the person liable to pay council tax for the property in respect of that period for that amount. Those are matters in respect of which, if there is a sense of grievance, the defendant is entitled to exercise his right of appeal to the Tribunal. It is therefore not only unnecessary for me to make a finding on this alternative point but really rather strained. Nonetheless, it does seem to me that, for the sake of completeness, insofar as it is helpful to do so, there would be no ground on which this court could quash the order even if the point about section 16 and section 57 were not right. It seems to me that on the state of the evidence that was before the court they were entitled to accept the evidence from the second defendant to the effect that the property had been designated a house of multiple occupation as satisfying the criteria and that that designation was indeed a true reflection of the underlying evidence, having regard to the background of the inquiries made earlier. I should say that in argument Mr Salmon made a forensic point in relation to Mr Winter's note for the hearing that the alleged reply that they received from Mr Salmon was 27th June 2000 on his note whereas the inspection was on 5th July 2004 and therefore that could not be right. That is, of course, a logically correct observation of Mr Salmon but in my judgment it goes no further than to show that Mr Winter's note had made an error in recording the detail and indeed the detail of those visits is recorded in the Council document which is at page 105 of the defendant's bundle. The evidence of Mrs McDonald is reflected in a note prepared on the Council records and in relation to the 20th June it states:

These are findings of fact, were they made, by the Magistrates which in my judgment they were entirely entitled to make and in any event there is no basis put before the court such as would justify intervention on the ground that they had reached a perverse decision or one which no reasonable court could have reached or one which was completely contrary to the evidence.

In those circumstances, that ground in my judgment is wholly unsustainable and that leaves only the Article 6 point which Mr Salmon advanced in this way before me. He said he did not have a fair trial because: (1) the Magistrates failed to demand from the council any evidence of occupancy of the property; (2) they failed to consider Ms Abela's evidence, despite the fact that she attended the court to answer any questions they had; (3) the Magistrates' Court rubber-stamped the Council's historic description of house of multiple occupation; (4) the Council failed to respect his right to a fair trial by designating the house as HMO when it was not: it should have verified the facts and put those before the court. Next, he said that the Act put the Council under a duty to bill the tenant, in this case Mrs Abela, and they should have done so. Having not done so, the trial was unfair because the Council tried to cover up their breach of statutory duty. They should have asked Mrs Abela questions about her tenancy and the Council were in breach of his Article 6 rights because they were seeking from him money that they should have asked from Mrs Abela: that was a breach of natural justice.

In my judgment, these are all hopelessly misconceived submissions. It was not for the Magistrates to demand from the Council evidence in relation to occupancy of the property, it was for the Council and Mr Salmon to adduce such evidence as they respectively thought fit. In any event, as I have indicated, the question of multiple occupancy was not a matter relevant to what they had to determine because of the section 57 provision. So far as failing to consider Ms Abela's evidence, despite the fact that she attended court to answer questions, the position is, and it is not contested, that Mr Salmon put in her witness statement, he chose not to call her to give oral testimony and it was entirely a matter for him to decide what evidence to put before the Magistrates and there is no evidence to suggest that they failed to consider her written witness statement. So far as the allegation that they rubber stamped the Council's historic description of HMO, the fact is that the question of the HMO status was not a matter that they were required to decide or upon which their ultimate finding that they should make a liability order was dependent and in any event, in my judgment, for the reasons given, there is no warrant in the submission that what they did was rubber-stamping anything.

So far as the submissions in relation to the Council are concerned, the submission that they breached Article 6 because they designated the property as HMO when it was not and that they should have verified it seems to me to have nothing to do with the trial at all. It is simply a complaint about a prior matter. So far as the allegation of a cover up is concerned, it is first of all in my submission entirely unsupported by any evidence and in any event, even if it were supported by evidence, would not be a matter constituting a breach of his Article 6 rights, whatever other remedies it might give rise to. The same can be said to apply to the complaint that they did not ask Mrs Abela questions about the tenancy. She was not adduced as a witness: it was not therefore for them to cross-examine her. So far as the submission that it was a breach of Article 6 because they should have sought money from Mrs Abela, again that is not a matter that goes to Article 6 or the trial and is in any event, in my judgment, simply wrong on the material that I have referred to.

For all those reasons, in my judgment this application fails.

MR CHOUDHURY: My Lord, I am grateful for your Lordship for sitting to this late hour to deliver the judgment. That just leaves costs, which the Council does apply for on the basis that costs follow the event, Mr Salmon has failed in all his grounds of application and it appears to the Council there is no reason why --

MR JUSTICE STADLEN: And you ask for the costs of what?

MR CHOUDHURY: My Lord, that is where we are in a little bit of difficulty because I do not have a schedule, which was delivered to Mr Salmon. The costs would be for the proceedings generally, given that we have now concluded the matter. Because the matter has finished in the course of a day, the court is obliged to consider whether summary assessment is appropriate, notwithstanding the fact that a schedule has not been submitted. I can say to the court that the costs to date up to the time of the permission hearing were in the region of a thousand pounds. That is the Council's costs.

MR JUSTICE STADLEN: The costs up to today? The costs up to permission hearing?

MR CHOUDHURY: The costs up to permission hearing were a thousand pounds, not including counsel's fees.

MR JUSTICE STADLEN: Were counsel there?

MR CHOUDHURY: Yes, and I seem to recall, my Lord, it was in the region of £2,000.

MR JUSTICE STADLEN: Counsel's fees?

MR CHOUDHURY: Yes, and, my Lord, as for the costs to date, that is from the permission hearing up to now, I am in the position of having to give your Lordship an estimate, which is the same again for the authority, a thousand pounds, and counsel's fees, including skeleton argument and preparation for the hearing and the hearing itself are in the region of £5,000. So the total is, my Lord, an estimate of not less than £7,000.

MR JUSTICE STADLEN: Well, I make that £8,000.

MR CHOUDHURY: My Lord, yes. You are absolutely right.

MR JUSTICE STADLEN: Is the court to obliged to make a summary assessment or only to consider doing it?

MR CHOUDHURY: No, my Lord, your obligation is only to consider whether or not to make a summary assessment order and the fact that we have not provided a schedule in accordance with the practice direction is a matter that you are entitled to take into account.

MR JUSTICE STADLEN: Mr Salmon, two questions. First of all, what are your submissions in relation to whether I should make an order as to costs?

THE CLAIMANT: I would prefer if a costs order is going to be considered that I have a chance to actually go over the summary first of the costs. I do have an additional --

MR JUSTICE STADLEN: Well -- yes.

THE CLAIMANT: -- point, which if I can just ask very quickly: do I have no automatic right of appeal from this hearing?

MR CHOUDHURY: My Lord, it is not an automatic right. Permission is required and permission in first instance should be requested from your Lordship and, if that fails, Mr Salmon would have the right to seek permission from the Court of Appeal.

MR JUSTICE STADLEN: And the test it whether there is a realistic prospect of success.

MR CHOUDHURY: A real prospect of success, yes.

MR JUSTICE STADLEN: You do not have an automatic right to appeal but you can seek permission to appeal, in the first instance from me and if I refuse it then from the Court of Appeal.

THE CLAIMANT: And the European Court of Human Rights?

MR JUSTICE STADLEN: Well, that is a matter for you.

THE CLAIMANT: Do I have permission to go direct there or do I have to --

MR JUSTICE STADLEN: That is a matter you will have to take up with the European Court of Human Rights.

THE CLAIMANT: Because I find that there is a couple of grounds which --

MR JUSTICE STADLEN: Well, just before we get on to that I just want to deal with costs. The Council is making an application for an order that you should pay the costs of the entire action. Because this application occupied a day, albeit a very long day, the court is required to consider whether to make a summary assessment of those costs, if the court is otherwise minded to make a costs order, or, if not, it can simply order that the costs should be taxed in the ordinary way. Now, on the first question, what do you say in answer to the application that you should pay the costs? The normal rule is costs follow the event.

THE CLAIMANT: Well, to my mind the Council should have accepted money from Mrs Abela when she called and they should have transferred the account into her name. To me this is a totally ridiculous situation which still has not been sorted out and what is going to happen now is that we go to the Magistrates Court again in a few weeks time, because we will get another demand issued and another summons and I will go again and we will have the same argument and we will just go round in circles and it --

MR JUSTICE STADLEN: The issue that you need to focus on, Mr Salmon, which I have to decide, is whether the costs of your judicial review application have been unnecessarily incurred by the defendant because there was not merit in it and therefore, whatever the underlying disputes between you outside this judicial review application, that --

THE CLAIMANT: I disagree that there was no merit in the claim. There is an unresolved situation.

MR JUSTICE STADLEN: Mr Salmon, please do not interrupt. That the costs of this application for judicial review should be paid for by you as the losing party on the basis that the costs of defending it have turned out to be accepted by the court as having been unnecessarily incurred because the application was without substance, without merit. What is your response to that?

THE CLAIMANT: The application for a judicial review was an honest attempt to try and get this situation concerning the council tax resolved and for it to be billed to the person who is the tenant of the flat and for the payments --

MR JUSTICE STADLEN: Mr Salmon, could you stand up if you are making submissions please.

THE CLAIMANT: I am sorry, and we have not advanced a single inch today. In fact we have gone backwards and we are back into a circle, we are back going round the mountain again. I have done everything in my power to get this sorted out. This was an attempt to get it sorted out so that Ms Abela, who is willing to pay the money, paid the money, was billed, so I do not think they have any right to ask in those circumstances. They should have just avoided this by transferring the account to Ms Abela. I would have withdrawn the judicial review, had they done that.

MR JUSTICE STADLEN: Thank you very much. Is there anything else you want to say?

THE CLAIMANT: Well, I have said it already. I do think that if there is going to be any assessment of the costs I would rather actually go through taxation so I have some idea of how the costs are broken down.

MR JUSTICE STADLEN: Yes.

In my judgment, the claimant should pay the costs to the defendant of the application, that is to say the costs from the inception of the application and the application for permission to make the application through to today. The application was in my judgment wholly without merit and has put the Council to unnecessary expense in defending it and there are no reasons why the normal rule that costs should follow the event should not be applied in this case.

So far as summary assessment is concerned, no schedule of costs was forthcoming from the second defendant -- when I say the defendant I meant of course the second defendant, not the first defendant. The second defendant has not produced a schedule of costs. The claimant, Mr Salmon, submits in those circumstances that it would be wrong not to have -- for him to have the opportunity of challenging those costs on a detailed assessment. In my judgment he is right in that submission. Accordingly, I do not make a summary assessment and my order is that the costs should be taxed.

Now, is there anything else?

THE CLAIMANT: Yes. I presume that before I apply to the European Court of Human Rights I am supposed to seek permission to appeal from you, so I do ask for permission to appeal on a number of grounds, not least that section 2 of the Local Government Finance Act says that liability falls due on a daily basis. Now, surely then the status of a building as an HMO should be terminated on any day when multiple occupation definitively ends. That would be a clear result of that --

MR JUSTICE STADLEN: Sorry, state of HMO...?

THE CLAIMANT: The status of HMO should fail. It should be terminated on the day when any multiple occupancy comes to an end.

MR JUSTICE STADLEN: Yes. Next?

THE CLAIMANT: My papers just flipped open, it must have been an angel who came in and turned them over, on section 66 of the Local Government Finance Act. 66(2)(b): "The matters mentioned in subsection (2) below shall not be questioned accept by an application for judicial review". (2)(b) says these matters are a determination made under section 8(2), which is a determination made as an HMO. So we appear to have a problem because you actually yourself said there would be no ground on which this court could quash the order, the ground is unsustainable. Well, I am sorry, you have got every ground, accordingly to that.

MR JUSTICE STADLEN: Next.

THE CLAIMANT: I think that is clear and again on human rights grounds. I do not feel I have had a fair trial today. I do not actually feel that the interests of natural justice have been served.

MR JUSTICE STADLEN: Why?

THE CLAIMANT: Because there has been a total failure to really consider what I have been saying about ultra vires and it appears now, from what I have just discovered on section 66, that, you know, the basis -- you based your judgment on paragraph 57 of the regulations and they clearly contradict section 66(2)(b) of the Act, so again --

MR JUSTICE STADLEN: You have not had a fair trial because I have not considered a matter that you have not drawn to my attention: is that your submission?

THE CLAIMANT: You said there would be no ground on which this court could quash the order.

MR JUSTICE STADLEN: Next?

THE CLAIMANT: I think I have said enough.

MR JUSTICE STADLEN: This is an application for permission to appeal. Three grounds were advanced. The first is that by section 2(1) of the 1992 Act the status of HMO should end as and when the multiple occupation comes to an end. I did not understand how that submission bears on any of the findings that I have made. The second was by reference to section 66 of the act, a provision giving limited rights of judicial review in respect of findings in relation to multiple occupancy. This was a matter which was not referred to by anybody in the hearing in front of me, least of all by the claimant, and he has advanced no coherent grounds as to why that section should in any way undermine the decision which I have made and, third, he applies on the basis that he has not had a fair trial because I have failed to consider what he said on ultra vires, in particular in relation to section 66. Since he did not mention section 66 in any of his submissions or draw it to my attention, it is very difficult to see how that could constitute any basis for an argument that he has not had a fair hearing. In my judgment there is no realistic prospect of success on an appeal and I refuse leave. (pause) Thank you very much. Anything else?

MR CHOUDHURY: No, my Lord.

THE CLAIMANT: I just feel I have to say that Jesus is waiting for you judges to see the light.

MR JUSTICE STADLEN: He is waiting for...?

THE CLAIMANT: Jesus is waiting for you judges to see the light.

MR JUSTICE STADLEN: Thank you very much.