Agricultural, Horticultural and Forestry Industry Training Board v Kent
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CROSS,THE MASTER OF THE ROLLS |
| Judgment Date | 09 December 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J1209-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 December 1969 |
[1969] EWCA Civ J1209-2
In The Supreme Court of Judicature
Court of Appeal.
Appeals by plaintiffs from judgment of His Honour Judge Trapnell at Bromley County Court on the 30th July, 1969.
The Master of The Rolls (Lord Denning),
Lord Justice Salmon and
Lord Justice Cross.
Mr. NOMAN TAPP, Q.C. and Mr. L.J. VERNEY (instructed by Messrs. Wood & Sons, Beckenham, Kent) appeared on behalf of the Appellants.
Mr. HENRY HARRIS (instructed by Messrs. Woodroffes) appeared on behalf of Mr. Kent, Respondent.
Mr. LEWIS HAWSER, Q.C., and Mr. Christopher Hordern (instructed by Messrs. Druces and Attlee) appeared on behalf of Messrs. Tawell & Sons, Respondents.
THE MASTER OF THE ROLLS; In 1964 Parliament enacted the Industrial Training Act, 1964. The Minister was empowered to set up a Training Board for an industry and to impose a levy on employers in that industry. Section 4(3) of the Act said that the levy order "shall give any person assessed to the levy a right of appeal to an appeal tribunal constituted under this Act.
In 1966 the Minister established the Agricultural Horticultural and Forestry Industry Training Board. In April 1967 the Board sent out a form to every farmer in the industry requiring him to state the number of employees in the industry. (The Board wanted to know this in order to calculate the levy.) Most of the farmers filled in the forms and sent them back, but a good many did not. We were told that out of 100,00C farmers about 85% replied, but 15% did not. This put the Board in a difficulty, because they did not know, how many employees each of the 15% had. Furthermore, the levy was only in respect of the men under 65 and the women under 60. The Board did not know those numbers.
(The return did not ask for that information.)
On the 23rd November, 1967, the Minister made a Levy Order (1967 No. 1747) authorising the Board to impose on every farmer £6 for every regular full-time employee (men under 65 and women under 60) engaged under a contract of employment for forty hours a week, or more. It came into operation on the 13th December, 1967. But before the levy was actually imposed, the Minister, on the 7th March, 1968, made an amendment reducing the £6 to £3. It came into operation on the 1st April, 1968. The Levy Order contained in section 4(3) the important provisions "An assessment notice shall state the Board's address for the service of a notice of appeal or of an application for an extension of time for appealing."
On the 1st April, 1968, the Board issued assessment notices to every farmer. In the case of those farmers who had sent back the forms, the Board simply took the number of employees given by the farmer. That number must in many cases have been the wrong figure to take, because it included men over 65 and women over60; also those working less than a 40-hour week. In the case of those farmers who made no return, we were told quite frankly that the Board simply guessed at the number of employees. They took an average of the number of employees employed by the farmers who had made returns (85% of the total numbers of farmers). It came to four per farmer. They applied that average to the other farmers (15% of the total) who had not made any returns. So a farmer who had only one employee would be assessed as if he had four, and a farmer who had 50 employees would also be assessed as if he had four. That was a very bit-and-miss method of assessment. But so be it; these assessment notices were sent out. Many farmers did not pay.
The Board have now taken proceedings in the Bromley County Court against some 12,000 farmers to recover the amount said to be due on these assessment notices: 6,000 more are pending. The County Court staff has had to be increased very considerably to deal with the numbers.
Three or four of these cases came before the County Court Judge. The farmers challenged the validity of the notices of assessment. In two of the cases the Judge held that the notices of assessment were bad because they did not contain the Board's address for service of a notice of appeal. The Board appeal to this Court.
The assessment notice was in these terms.
"Agricultural Horticultural and Forestry Industry Training Board, Bourne House, 32/34 Beckenhaia Road, Beckenham, Kent. Assessment Notice and Demand for Payment of Levy for the period ending 31st August, 1968.
In pursuance of the Industrial Training Levy (Agricultural Horticultural and Forestry) Order 1967, the Agricultural Horticultural and Forestry Training Board has assessed you to levy as detailed below. Payment due on 1/8/1968."
(Here followed the number of employees, the levy rate of £3 per employee and the total levy.)
There was a counterfoil, which said: "Please detach and return this counterfoil with your remittance to:-The Agricultural Horticultural and Forestry Industry Taining Board, Bourne House, 32/34, Beckenham Road, Beckenham, Kent." It is Important to notice that the assessment notice itself did not mention any right of appeal, nor any address for service.
In most of the cases – but not all – the Board enclosed with the assessment notice, in the same envelope, a paper headed "Notes relating to the 1967/68 Assessment Notices"; and one of the notes said:
"The employer has the right of appeal to an Industrial Tribunal against this assessment during the period of one month from the elate ho receives the Assessment Notice. Forms may be obtained from the Agricultural, Horticultural and Forestry Industry Training Board, Bourne House, 32/34 Beckenham Road, Beckenham, Kent, BR3 4SP. This is the address of the Board for the service of a notice of appeal or of an application for an extension of time for appealing. The Board or the Appeal Tribunal may, for good cause, allow an extension of time for appealing."
That is a very good note. If it had been incorporated in the assessment notices which were sent out – asit may have been in some cases – it would undoubtedly have made those assessment notices good. But in the two cases before us, the paper of "Notes" was not included. The Judge has so found.
The evidence showed the way in which these notices and notes were sent out. The Board at Beckenham use a computer. They rely on it to put the notes into the same envelope as the assessment notice. But the computer is not infallible. As one witness said: "Computers are fast, reliable and stupid. Human beings are slow, unreliable and intelligent." When controverted by human evidence the computer cannot speak. It cannot give evidence. It may be disbelieved. The Judge here thought that it must have made a mistake. He found that in these two cases at least the computer had failed to include the notes. He accented the evidence ofthe farmers, who were respectable and reputable men. I will read what Mr. Tawell said: I look at Notes re Assessment Notice, They were not there. I have never seen them before. I made out the Statutory Return." He said that he thought the operations of the Board were a waste of public money. And he added: "Had I known" had I received the notes – "I am quite certain I would have appealed I sent the levy back, and a letter. I was annoyed with it. If notes had been there at the time, I would have read them. I only had the assessment." The other fanner spoke to the same effect.
The Judge on their evidence found that the notes were not included;...
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