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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sabesan v London Borough of Waltham Forest  EWHC 2373 (Admin) (11 September 2018)
Cite as:  EWHC 2373 (Admin)
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QUEEN'S BENCH DIVISION
ON APPEAL FROM THE VALUATION TRIBUNAL FOR ENGLAND
Strand, London, WC2A 2LL
B e f o r e :
sitting as a Deputy Judge of the High Court
| SHANMUGANATHAN SABESAN
|- and -
|LONDON BOROUGH OF WALTHAM FOREST
The Respondent did not appear and was not represented.
Hearing date: 30 August 2018
Crown Copyright ©
Edward Murray sitting as a Deputy Judge of the High Court :
"You have the right to Appeal this decision. To do so you must make an application to the Valuation Tribunal Service within 2 months of the date of this letter. If made later than 2 months the Valuation Tribunal Service may ask for the reasons for the late appeal and refuse your application if they deem the reasons unsatisfactory.
The Valuation Tribunal Service is an independent body set up in order to resolve disputes of this kind. They will set a date for a hearing whereby both parties will provide evidence to substantiate their claims. A decision will then be made based on that hearing."
Extension of time to appeal the decision of the VTE
i) After he had received Mr Garland's decision not review Mr Young's decision of 12 October 2017, he continued to pursue his claim for relief from his council tax liability through proceedings at the Thames Magistrates' Court.
ii) He was waiting for a reply from the Council to agree to extend time, so he made another application to the Magistrate's Court to set aside the liability orders made against him in respect of council tax. That application was heard on or about 13 February 2018. It was dismissed on the basis that he had waited too long to bring the action.
iii) He wrote to the High Court "a normal letter" about that time about this matter, "but they said they could not deal with the matter in a letter back to me".
iv) He attempted again to appeal LBWF's decision to impose council tax liability on him to the Thames Magistrates' Court, but another District Judge rejected the appeal.
v) In mid-March Mr Sabesan approached Mr Sawtell through his clerk for a fee quotation. Upon receipt of the quotation, he was not in a financial position to accept immediately as he was paying his council tax arrears to LBWF and was also in financial hardship. He was able to pay counsel's fee by the last week of March 2018. Mr Sawtell emailed the paperwork to him on 4 April 2018 asking him to complete 11. Mr Sabesan "misunderstood this and overlooked this".
"It is unnecessary to go into the details of the submissions which were made as to how the court should exercise the discretion granted by [regulation 43(2)]. Both parties submitted, and I accept, that the test set out in Denton v TH White (De Laval Ltd, Part 20 defendant) (Practice Note)  1 WLR 3926 was not directly applicable to the circumstances of this appeal. It suffices to say that [counsel for Ms Jagoo] advanced a number of reasons why the appeal should be heard, and [counsel for the BCC] very fairly indicated that the respondent adopted a neutral stance. It was in my view clear that this was an appropriate case in which to allow the appellant to proceed, and I therefore permitted her to do so."
"It is clear that Regulation 43 gives the Court a discretion to dismiss an appeal made out of time. The Regulation can be analysed as imposing a time limit which may be extended only if the court in its discretion agrees; or an automatic sanction from which relief must be sought; or as a ground on which the court may in its discretion dismiss an appeal. I do not believe it matters. The general rule is that appeal courts treat an application to extend time for appealing, when brought after the time limit has expired, as equivalent to an application for relief from sanctions from CPR 3.9; the court applies what have become known as the Mitchell/Denton principles. Sayers v Clarke Walker (A firm)  EWCA Civ 645,  1 WLR 3095; R (Hysaj) v SSHD  EWCA Civ 1633;  1 WLR 2472. It is common ground that in this case I should adopt that approach, and I agree that is appropriate."
i) First stage - seriousness and significance of the failure to comply with the deadline: Mr Sabesan filed his appeal five months late. That is a serious and significant delay, as Mr Sawtell rightly conceded.
ii) Second stage - why the default occurred: none of the reasons advanced by Mr Sabesan in his witness statement handed up during the hearing comes close to providing an acceptable reason for a failure to file within the deadline, much less a delay of five months in doing so. Mr Sabesan's financial difficulties are, of course, unfortunate and attract sympathy, but cannot of themselves excuse a delay of five months. This is particularly so given that the letter dated 6 September 2016 sent to him by LBWF and received by him on 12 September 2016 was quite clear as to the correct route of appeal, namely, to the VTE, and as to the deadline.
iii) Third stage – the need to evaluate "all of the circumstances of the case, so as to enable [the Court] to deal justly with the application, including factors (a) and (b) of Rule 3.9", which apply by analogy if not directly. Factors (a) and (b) of CPR 3.9 require me to have regard to the need for litigation to be conducted efficiently and at proportionate cost, and to consider the need to enforce compliance with rules, practice directions and orders. Mr Sawtell's submissions in relation to this third stage were that Mr Sabesan was not someone who was sitting on his hands or who had gone to sleep on his rights. As his witness statement makes clear, he was trying to assert his rights, but he was confused as to how to do so, and he had "become lost in the forest". Having regard to all the circumstances of the case, including the factors I have mentioned, I find that there is no basis on which I can justify granting an extension of time in this case.
The merits of the appeal against the VTE
"It must be established that the conclusion of the Tribunal was irrational in the sense that there was no evidence to support it, or that the Tribunal had taken into account irrelevant matters or left out of account matters which it should have taken into account."
i) Mr Young failed to give adequate weight to Mr Sabesan's continuing confusion as to the correct avenue for an appeal.
ii) Mr Young gave undue weight to the letter of 6 September 2016 in setting out the correct method in which to bring an appeal.
iii) Mr Young imported a test, namely one of "acting with all reasonable speed" that is not part of the test under regulation 21(6) of the 2009 Regulations.
i) The law as to how an appeal against a local authority's imposition of liability for council tax is seriously unclear. In this regard, Mr Sawtell relied on the judgment of Robin Hollington QC in the case of Okon v London Borough of Lewisham  EWHC 864 (Ch), where at  he said the following:"By way of postscript, I would add that this case has demonstrated to my mind the substantial degree of uncertainty that exists so far as concerns how the courts, both magistrates and the bankruptcy county court, should deal with the enforcement of domestic council tax liability orders in the context of the availability of the remedy by way of appeal to the Valuation Tribunal."
ii) The judge went on in his judgment to refer to a couple of High Court cases that provide some assistance in relation to these issues, but do not appear to be sufficiently well-known. It is not necessary for present purposes to go further into that. Mr Sawtell relied on this judicial observation to support his submission that the law in this area is so unclear that Mr Sabesan's confusion in relation to the approach he should pursue amounted to circumstances beyond his control. As to the letter of 6 September 2016 from the LBWF to Mr Sabesan, it arrived after he had commenced his renewed challenge in the Magistrates' Court and therefore too late to cut through his confusion.
"Matters of weight are for the first instance tribunal, subject to an overall test of Wednesbury unreasonableness: see Associated Provincial Picture Houses v Wednesbury Corpn  1 KB 223."