Kinsley, R (on the application of) v London Borough of Barnet

A judicial review claim cannot be used to bypass a statutory appeal route which provides an adequate means of challenging a tribunal’s decision on a question of law. Where the statutory appeal period has expired but the legislation permits dismissal rather than imposing an absolute bar, the court has an implied power to entertain the appeal and must consider whether it should do so.

Judicial review of a magistrates’ liability order is available only on established public-law grounds, including unlawfulness, want of jurisdiction, irrationality, material error in the evidential process and procedural unfairness. Where service of the required notice is proved by reliable official evidence, a claimant’s assertion that the notice was not received does not establish a public-law error.

The claimant brought several judicial review claims concerning council tax and non-domestic rates liability orders made by Barnet Magistrates’ Court and a District Judge sitting at that court.

In the council tax matter, the claimant challenged enforcement proceedings while disputing the underlying valuation tribunal decision that he was liable for the tax. The court directed him to lodge any out-of-time statutory appeal against that decision before the permission application would be determined.

In the other two matters, he challenged liability orders concerning council tax and business rates. The central issues were whether statutory notices and summonses had been properly served, whether the magistrates’ orders were lawful, and whether the District Judge’s findings were irrational or unsupported by evidence.

1. Out-of-time statutory appeal. The claimant had not appealed within the four-week period specified by regulation 32(2) of the Council Tax (Alteration of Lists and Appeals) Regulations 1993. That provision stated that an appeal may be dismissed if late; it did not provide that an appeal could not be lodged. The court therefore accepted an implied power to determine a late appeal. The claimant was directed to lodge an appeal with full grounds and reasons for lateness. If he failed to do so, permission to seek judicial review of the magistrates’ adjournment decision would be refused.
2. Council tax liability order. The statutory scheme required service of a demand notice, reminder notice, final notice and summons before a liability order could be made. The court was satisfied, on the senior recovery officer’s witness statement and supporting documents, that the reminder notice and summons had been served at the claimant’s last known address. The relevant requirement was service, not proof of actual receipt. In judicial review proceedings, the court will ordinarily accept responsible official evidence unless there are real grounds to doubt its truth. The claim was dismissed.
3. Non-domestic rates liability orders. The District Judge was entitled to find that the claimant’s shop and the rear office and yard were separately rated. The rating list and oral evidence supported that conclusion. The description of the shop in private documents as 9B Varley Parade did not prevent it being identified as the only shop at the premises described in the rating list as 9 Varley Parade. The judicial review challenge disclosed no irrationality or want of evidence and was dismissed.
4. The claimant, having lost both substantive claims, was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed. The court declined to stay or inhibit enforcement of the liability orders. Interim orders lapsed on determination of the claims.