Total Sprint Limited v Swale Borough Council

Under regulation 12 of the Non-Domestic Rating (Collection and Enforcement)(Local Lists) Regulations 1989, the billing authority must prove that the rate was duly made and published, duly demanded and unpaid. Once those matters are established, the person summonsed bears the evidential burden of showing that it was not in rateable occupation. The authority need not first establish a prima facie case of rateable occupation before that burden arises.

A failure to disclose potentially adverse material is ordinarily remedied through the trial process and costs, rather than treated as abuse of process. Abuse and the appropriate response must be considered separately. Multiple procedural failings will amount to abuse only in rare cases involving irremediable oppression, serious affront to propriety or justice, or disrepute to the administration of justice.

Total Sprint appealed by way of case stated from a liability order made by District Judge Leake in the Medway Magistrates’ Court. The order concerned non-domestic rates for Units 19–20, Craft Marsh Trading Estate.

The Council had previously obtained liability orders against Sprint Couriers (Southern) Ltd for overlapping periods, later issuing zero-balance demand notices to that company and seeking a summons against Total Sprint. The District Judge found serious procedural failings, but refused to stay the proceedings for abuse of process. He held that Total Sprint bore the evidential burden of disproving rateable occupation and made the liability order.

The appeal concerned the alleged abuse, the scope of the Council’s duties of candour and disclosure, the effect of the earlier liability orders, and the allocation of the evidential burden under regulation 12.

1. Appeal dismissed. The answers to the stated questions were substantially affirmative, but the District Judge was wrong to characterise the proceedings as a collateral attack on the earlier liability orders and wrong to find a breach of the duty of candour.
2. Regulation 12 had to be read as a whole. The words requiring the defendant to appear and show why the outstanding sum had not been paid placed at least an evidential burden on the person summonsed. Regulation 12(5) imposed an obligation on the court to make an order once satisfied that the sum had become payable and remained unpaid; it did not place the legal or evidential burden of proving rateable occupation on the authority.
3. The approach in Ratford v Northavon Council, Westminster City Council v Tomlin and Pall Mall Investments v London Borough of Camden remained applicable. The authority had to establish the formal requirements and have rational grounds for believing that the person summonsed was or might be in rateable occupation. It did not have to prove those grounds before the magistrates’ court.
4. The Council could have applied to set aside the earlier liability orders, but its failure to do so did not make the proceedings against Total Sprint abusive. The earlier orders did not determine whether Total Sprint was in rateable occupation, and the proceedings were not an impermissible collateral attack within the principles stated in Secretary of State for Trade and Industry v Bairstow.
5. The Council owed a duty of candour when applying for the summons, but that duty did not require disclosure of the earlier liability orders at that stage. It did owe a disclosure obligation once liability was put in issue, and it breached that obligation by failing to disclose potentially adverse material. That breach did not itself constitute abuse because the material ultimately reached the court and the trial process provided appropriate safeguards.
6. The proper approach to abuse was staged: determine the facts, decide whether they constituted abuse, and then decide the appropriate response. The individual failings did not constitute abuse, and did not do so cumulatively. Even if abuse had been established, a stay would not have been appropriate in light of the public interest in recovering properly due non-domestic rates.
7. The District Judge’s factual assessment of rateable occupation disclosed no error of law. Since Total Sprint had failed to adduce evidence carrying weight on that issue, it had failed to discharge its evidential burden and the liability order was inevitable.

The appeal was brought by way of case stated from the Medway Magistrates’ Court liability order made on 1 February 2022, with reasons given on 4 April 2022 and a Case Stated dated 12 February 2023.

High Court (Administrative Court): appeal dismissed. The liability order was upheld.