Business Rates - Selecting the Court for Recovery and Enforcement

[1] The two parts to local taxation, Business Rates, and Council Tax, are separate and distinct, each having a separate legal basis:

a. Council Tax liability is imposed by Local Government Finance Act 1992. The Council Tax (Administration & Enforcement) Regs 1992 (SI 1992/613) apply to enforcement, and these 1992 Regs were made under section 14 and Schedule 4, paragraph 1, of the 1992 Act; and

b. Business Rates liability is imposed by Local Government Finance Act 1989. The Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations (SI 1989/1058) apply to enforcement, and these 1989 Regs were made under Schedule 9 and Section 62 of the 1989 Act.

[2a] Regulation 12 of the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989/1058 is entitled ‘Application for liability order’ and reads:

‘(1) Subject to paragraph (3), if an amount which has fallen due under regulation 8(2) in consequence of such a failure as is mentioned in sub-paragraph (a) of that provision is wholly or partly unpaid, or (in a case where a reminder notice is required under regulation 11 ) the amount stated in the reminder notice is wholly or partly unpaid at the expiry of the period of 7 days beginning with the day on which the notice was served, the [billing authority] 1 may, in accordance with paragraph (2), apply to a magistrates' court for an order against the person by whom it is payable.

(2) The application is to be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding.

(3) Section 127(1) of the Magistrates' Courts Act 1980 does not apply to such an application; but no application may be instituted in respect of a sum after the period of 6 years beginning with the day on which it became due under Part II.

(4) A warrant shall not be issued under section 55(2) of the Magistrates' Courts Act 1980 in any proceedings under this regulation.

(5) The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid.

(6) [An order made pursuant to paragraph (5) shall] 2 be made in respect of an amount equal to the aggregate of–

(a) the sum payable, and

(b) a sum of an amount equal to the costs reasonably incurred by the applicant in obtaining the order.

(7) Where the sum payable is paid after a liability order has been applied for under paragraph (2) but before it is made, the court shall nonetheless (if so requested by the [billing authority] 1 ) make the order in respect of a sum of an amount equal to the costs reasonably incurred by the authority in making the application.’

For completeness, section 127(1) of the Magistrates Court Act 1980 reads:

'Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within six months from the time when the offence was committed, or the matter of complaint arose.'

This general 6 month time limit on complaints, is disapplied in respect to business rate complaints, by the combined effect of: (i) the 'Except as otherwise expressly provided by any enactment...' in section 127(1); and Regulation 12 of the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989/1058, paragraph (3).

[2b] The Magistrates Court finally determine whether they are satisfied at the first hearing, if there is no reason for them not to. The summons issued to the defendant/ratepayer, is that he is summoned to court to show cause why he/she/it has not paid. If that defendant/ratepayer does not attend (whether personally or though solicitor/barrister) the first hearing to show cause, then unless there is a reason to adjourn the Complaint (which they accede to), the justices can, and will, move on to make their final determination of whether they are so satisfied.

[3] Regulation12(2) and 12(5) of Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989/1058 provide:

‘(2) The application is to be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding.

(5) The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid.’

[4] In Bolsover District Council v Ashfield Nominees Ltd [2011] Bus. L.R. 492, Lloyd LJ did consider litigation in relation to Business Rates. Albeit his comments are obiter, LLoyd LJ said, at paragraph 17:

‘…the fact that there are two different routes in that case, one of which is identical to that which we have to consider, seems to me to be illuminating. No doubt, if the council uses the option of ordinary civil proceedings to recover arrears of non-domestic rates, the claim would be subject to section 9 of the Limitation Act, and only the last six years' arrears could be recovered. Correspondingly, if the council uses the other option of going to the magistrates' court for a liability order, it can only obtain such an order in respect of non-domestic rates that fell due within six years before the application to the magistrates' court. At that stage, therefore, the two alternative courses are treated identically for limitation purposes.’

[5a] Judgment affirmed on appeal [2019] EWCA Civ 364, but in the Supreme Court, Hurstwood Properties (A) Ltd v Rossendale BC [2021] UKSC 16, the billing authority's appeal on who had been '...entitled to possession...' in the definition of 'owner' in section 65(1), was allowed.

At first instance, in Rossendale Borough Council v Hurstwood Properties (A) Limited [2017] EWHC 3461 (Ch), HHJ Hodge QC (Sitting as a Judge of the High Court), variously said:

At paragraph 5:

‘The two claims are but two of a large number of very similar sets of proceedings which are currently before the Liverpool District Registry of the Chancery Division. Alexander Whyatt act for the respective Claimants to these proceedings.’

At paragraph 22:

‘[Solicitor for the claimants local authorities] issued the two claims on behalf of the respective local authorities. The brief details of claim endorsed on the front of the claim forms describe the claims as being for underpaid and/or unpaid national non-domestic rates that are claimed pursuant to the Local Government Finance Act 1988. In short, by those claims, each local authority seeks to challenge the efficacy of the schemes utilised by the Defendants, and to make them liable to the business rates which they would otherwise have avoided by use of the schemes.'

Between paragraphs 23 to 27, the Judge notes aspects of the Particulars of Claim, including the relief sought.

At paragraph 28:

‘The particulars of claim then go on to set out the relevant provisions of the 1988 Act and Regulations made under it governing the collection of business rates.’

At paragraph 34 he moves on the Defence, and at paragraph 36 onwards he discusses the application to strike out the claim.

[5b] Though discussing council tax rather than business rates, Lloyd LJ in Bolsover District Council v Ashfield Nominees Ltd [2010] EWCA Civ 1129 [2011] Bus LR 492 said: at paragraph 15:

'Liability orders were first brought into the legislation (so far as I am aware) when the community charge was introduced. Presumably this was a policy decision, designed to create a summary jurisdiction in a local court, which would be more economical and possibly more convenient in every respect than requiring the bringing of actions in the county court.'

[6a] In the civil courts, the right to appeal and the court to appeal to, is as prescribed by the CPR, as it applies to normal civil cases. If permission is granted, there can be a first and second appeal and the case can, if it warrants it, go up to the Supreme Court.

An appeal by way of Case Stated from a Magistrates Court is to the High Court. However, there is no further route to appeal. In other words, there can be no second appeal from the decision of the High Court on a Case Stated on Business Rates. That is because, there is a wider rule that there can be no appeal from a High Court decision on an appeal by way of Case Stated to the High Court on a civil matter (the position is different for a criminal cause of matter - see section 1 of the Administration of Justice Act 1960). The absence of a route to appeal in a civil matter has been confirmed in: (1) Maile v Manchester City Council The Times, 26 November 1997 (Court of Appeal)('Maile'); and (2) Westminster City Council v O'Reilly (Leave to Appeal: Jurisdiction) [2004] 1 W.L.R. 195 ('O'Reilly'). It was also confirmed on the statutory predecessor to the relevant section, section 18 of the 1981 Act, in In re Racal Communications Ltd [1981] AC 374; [1980] 3 WLR 181.

In O'Reilly, a licensing (so civil) case, Auld LJ, with whom Clarke LJ and Lord Woolf CJ agreed, said, at paragraphs 6 and 7:

'By section 28A(4) of the Supreme Court Act 1981, as inserted by section 1(2) of and paragraph 9 of Schedule 2 to the Statute Law (Repeals) Act 1993 and substituted by section 61 of the Access to Justice Act 1999, a decision of the High Court on appeal to it by way of case stated from a magistrate's court under section 111 of the Magistrate's Courts Act 1980, not on any criminal cause or matter, is “final”. This High Court decision, being one on a licensing matter, is, on the face of it, stamped with that finality. The Court of Appeal is a statutory creation with the boundaries of its jurisdiction identified by, and subject to, restrictions imposed by statute. Section 15 of the Supreme Court Act 1981 gives it its general jurisdiction. Section 16 specifically gives it its jurisdiction to hear and determine appeals “from any judgment or order of the High Court”.

Section 18 of the 1981 Act, reproducing in this respect section 31(1)(d) of the Supreme Court of Judicature (Consolidation) Act 1925 , provides:

“(1) No appeal shall lie to the Court of Appeal…

(c) from any order, judgment or decision of the High Court… which, by virtue of any provision (however expressed) of this or any other Act, is final…”

“Final” is the very word used in section 28A(4) of the same Act.

At paragraph 10 of O'Reilly, Auld LJ referred to this as '..the clear ouster of jurisdiction to the Court of Appeal in section 28A of the 1981 Act to hear appeals from orders on appeal to the High Court by way of case stated, a finality which, as I have indicated, is underlined in section 18 of the same Act.'

Auld LJ then confirmed, at paragraph 11 of O'Reilly, that the decision in Maile, on the same point, was binding on them. In Maile, Hutchison LJ, with whom Nourse and Thorpe LJJ agreed, said:

'The words of [sections 18 and 28A of the 1981 Act] are absolutely clear. They are very wide words, plainly apt to include appeals on points of law as well as appeals on fact. Moreover, bearing in mind that section 111 of the 1980 Act is concerned with stating a case on a question of law or jurisdiction, it seems to me that it will always, or at any rate almost always, be the case that a projected challenge to the decision of a judge on the hearing of a case stated will raise a point of law. In my judgment the effect of section 28A(4) and section18 of the 1981 Act is absolutely to prohibit an appeal such as is sought to be pursued in the present case. Accordingly, there is no jurisdiction in this court to entertain the appeal, which must therefore be rejected.'

Auld LJ concluded, at paragraph 13:

'In the result, I am of the view that the words of section 28A and of section 18 of the 1981 Act mean what they say. When a decision is declared final by statute, then this court has no jurisdiction to hear it by virtue of that provision and by section 18 of the 1981 Act. Nothing in the 1999 legislation changes that.'

Auld LJ said in O'Reilly, at paragraph 15: 'I would decline jurisdiction to rule on this purported appeal.'

The lack of Court of Appeal jurisdiction to hear an appeal from an appeal by way of Case Stated to the High Court, is not always realised. Indeed, the Court of Appeal made the mistake in Butland v Powys CC. In Butland v Powys CC [2009] EWHC 151 (Admin), Munby J recorded what happened after the Court of Appeal realised its mistake, at paragraph 15:

'Subsequently it came to the attention of the Court of Appeal that it had had no jurisdiction to hear the appeal: see sections 18(1) and 28A of the Supreme Court Act 1981 and Westminster City Council v O'Reilly [2003] EWCA Civ 1007, [2004] 1 WLR 195. Accordingly, on 19 December 2007 the Court of Appeal made a further order that its order dated 15 November 2007 “be set aside.”

In O'Reilly, Lord Woolf (with whom Auld LJ and Clarke LJ agreed) made some observations about using judicial review as a means of bring such a matter before the Court of Appeal. This was then attempted in Sheffield City Council v Kenya Aid Programme Regina (Kenya Aid Programme) v Sheffield Magistrates' Court [2014] QB 62 ('Kenya Aid') - unsuccessfully. In Kenya Aid, the Magistrates Court has imposed business rates liability orders on a charity. The charity appealed by way of Case Stated. The charity also applied for permission to proceed with a judicial review of the Magistrates Court decision. The matters (appeal and permission) came before the Divisional Court:

(1) On the Case Stated, the appeal was allowed and the matter remitted back down to the Magistrates Court; and

(2) On the permission to proceed with the judicial review claim, the Divisional Court said:

(i) at paragraphs 45 and 46:

'...there is also a parallel application for judicial review in relation to this matter. The claim form frankly states that the sole purpose of the proposed judicial review proceedings is to allow for the possibility that the issues raised in the appeal by way of case stated may be of sufficient importance that a further appeal to the Court of Appeal is considered appropriate. Accordingly, permission to bring judicial review is sought.

The underlying reason for bringing the judicial review claim is that section 18 and section 28A of the Senior Courts Act 1981 , as substituted by section 61 of the Access to Justice Act 1999 , provide that there is no right of appeal to the Court of Appeal from a decision of the High Court on appeal by way of case stated from the magistrates' court. As Auld LJ stated in Westminster City Council v O'Reilly [2004] 1 WLR 195 , para 13:

“the words of section 28A and of section 18 of the 1981 Act mean what they say. When a decision is declared final by statute, then [the Court of Appeal] has no jurisdiction to hear it by virtue of that provision and by section 18 of the 1981 Act.”'

(ii) at paragraphs 54 to 58:

'Quite apart from the fact that appeal by way of case stated is the appropriate remedy, it seems to me that to permit parallel judicial review proceedings would fall foul of the fact that case stated is a suitable alternative remedy and, importantly, would be to go behind the clear provisions of sections 18 and 28A of the Senior Courts Act 1981. Those provisions clearly intend that a decision of the High Court in relation to a case stated appeal should be final so that the Court of Appeal has no jurisdiction to hear an appeal against a High Court decision.

55. This case has not taken a route which could involve the dispute reaching the Court of Appeal and so should be approached by the rules which apply to it. It does not seem to me that the argument that this case may be special because the issues may be of sufficient importance that a further appeal to the Court of Appeal is appropriate is correct. If the prohibition on case stated appeals from the High Court proceeding to the Court of Appeal did not exist, High Court case stated appeals would be second appeals which could only proceed if “the appeal would raise an important point of principle or practice … or … there is some other compelling reason for the Court of Appeal to hear it”: see section 55 of the Access to Justice Act 1999 and CPR r 52.13(2) .

56. Given that the only appeals that could otherwise proceed to the Court of Appeal are those of sufficient importance as set out above, the clear parliamentary intention of sections 18(1)(c) and 28A(4) of the 1981 Act is that case stated appeals which would otherwise have been of sufficient importance to proceed to the Court of Appeal should none the less be subject to final determination in the High Court. To my mind the provisions of the 1981 Act operate as a bar and thus provide an overwhelming reason as to why permission to proceed with a judicial review claim should be refused. Whilst it may be that, in a truly exceptional case, such a claim could be allowed to proceed, there is no feature of this case which could justify such a course.

57. In the course of argument on this point the charity drew attention to observations in Westminster City Council v O'Reilly [2004] 1 WLR 195 . The charity sought to draw comfort from the fact that Lord Woolf CJ appears, at paras 18–21, not to have treated a judicial review claim in circumstances where fresh proceedings before magistrates were in contemplation (after an unsuccessful appeal by way of case stated on an earlier licensing application), as necessarily amounting to an abuse of process. Having considered the passage I do not consider that it advances the charity's argument. The point was not subject to detailed consideration and no clear conclusion was reached. Lord Woolf CJ recognised that if and when a court in the future had to determine whether it would be an abuse of process to permit a judicial review claim so as to enable the possibility of an appeal to the Court of Appeal, one of the two matters for the court to take into account would be the fact that a decision by the High Court on a case stated appeal is treated as final by the legislation.

58. Accordingly, for the reasons given above I would refuse permission to seek judicial review.'

In Ge Bowra Group Ltd v Thanet DC [2007] EWHC 1077 (Admin); [2007] RVR 120 (Irwin J), a ratepayer successfully Case Stated a Magistrates Court decision to impose a Business Rates liability order upon it. After the High Court handed down judgment:

(1) the billing authority did not apply for permission to appeal to the Court of Appeal, it's advocate stating:

'There is just the question of appeal. The position is rather strange in a way. This being an appeal to this court on a case stated in a civil matter, there is no right of appeal to the Court of Appeal. That is the effect of I think it is section 18 of the Supreme Court Act, read together with section 111 of the Magistrates' Courts Act 1980.';

(2) but the billing authority's advocate requested, and was granted, 21 days, to put in a written application to Irwin J, inviting him to grant the necessary certificate for a leapfrog appeal, to the House of Lords.

It is unknown whether any such application was put in, and what the outcome of it was, but there is no reported case in the House of Lords of that name.

[6b] The Explanatory Note to the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations (SI 1989/1058)(‘1989 Regs’) describes Part III to the 1989 Regs are follows:

Part III (regulations 10 to 23) makes provision for the enforcement of sums due under Part II. Amounts payable to a charging authority may be recovered under a liability order made by a magistrates' court (regulations 11 to 13), following the making of which the charging authority may levy distress (regulation 14 and Schedule 3), apply for the commitment of the debtor to prison if there are insufficient goods on which to make a levy (regulations 16 and 17), or prove the debt in insolvency (regulation 18). As an alternative to recovery under a liability order, a charging authority may bring proceedings in a court of competent jurisdiction (regulation 20). Amount which are repayable to a ratepayer are also recoverable in a court of competent jurisdiction (regulation 22). Regulation 23 precludes matters which may be raised by way of appeal to a valuation and community charge tribunal being raised in proceedings for recovery under Part III, provides for the proof of contents of rating lists, and provides for the case where the amounts required under a notice given under Part II are adjusted after a liability order has been made.’

[7] For completeness, it is right to note that, strictly speaking, insolvency is not enforcement of a debt.

[8] As to council tax enforcement processes - see Council Tax (Administration and Enforcement) Regulations 1992/613 - and the explanation it contains:

'Part VI (regulations 32 to 57) is concerned with the enforcement of sums due under Part V.Amounts payable to a billing authority which are unpaid are recoverable under a liability order made by a magistrates' court (regulation 34) following the making of which the billing authority may request certain information of the debtor as to his employment or income (regulation 36), make an attachment of earnings order (regulations 37 to 43 and Schedules 3 and 4), an attachment of allowances order (regulation 44), levy distress (regulation 45 and Schedule 5), apply for the commitment of the debtor to prison (regulations 47 and 48), prove the debt in insolvency (regulation 49), or apply for a charging order (regulation 50). Regulation 53 contains provisions about the admissibility of computer-generated evidence before magistrates' courts in proceedings under Part VI. Regulation 54 applies the relevant provisions of Part VI, with modifications, to cases of joint and several liability. Amounts payable by way of repayment are recoverable in a court of competent jurisdiction (regulation 55).'