Bibby v Coventry City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice William Davis,Mrs Justice Nicola Davies |
| Judgment Date | 20 July 2016 |
| Neutral Citation | [2016] EWHC 2554 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 July 2016 |
| Docket Number | CO/4077/2016 |
[2016] EWHC 2554 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Birmingham Civil and Family Justice Hearing Centre
Priory Courts
33 Bull Street
Birmingham
West Midlands
B4 6DS
Mrs Justice Nicola Davies DBE
Mr Justice William Davis
CO/4077/2016
The Claimant appeared in Person
Mr McLeod appeared on behalf of the Defendant
In December 2007 a company called Cannon Transport became the tenant of an industrial unit on the Durbar Industrial Estate in Coventry. It took out a lease for a term of 5 years from 4th December 2007.
Mr Alistair Bibby, the appellant in these proceedings, acted as surety for that lease. We understand he was a director of the tenant company. Cannon Transport became insolvent not very long after entering into the lease agreement. The company was dissolved in 2009.
In August 2011 the landlord's solicitor wrote to Mr Bibby and requested him to take out a new lease for the residue of the term, pursuant to the provisions relating to sureties in Schedule 6 of the lease. There was litigation in the Chancery Division over this request. A judge of the Chancery Division ruled against Mr Bibby's interest. He was required to enter into a lease for the residue of the term. For reasons which do not concern this court that was from 19th May 2011, thus expiring on 3rd December 2012. Mr Bibby for that period was the occupier for the purpose of liability for non-domestic rates. Those rates, at least in very large part, were not paid. It appears that Mr Bibby, was suffering considerable financial pressure at the time. He may have even have been insolvent.
Coventry City Council, the defendant in these proceedings, as the relevant local authority, made a complaint in the local Magistrates' Court against Mr Bibby for a liability order in respect of those rates. The hearing of that complaint was on 8th April 2015. The magistrates made a liability order in respect of the unpaid non-domestic rates.
The case comes before us because the Magistrates' Court was asked by Mr Bibby to state a case, which they did. The final Case Stated was provided on 30th July 2015. For reasons relating to a mis-writing of a cheque Mr Bibby's notice of appeal was not lodged within time, as provided for in the Practice Direction. But the notice was served very shortly after the expiry of the period of time. Any default was neither serious nor significant and with the consent of the respondent we extend time.
The Magistrates' Court jurisdiction was governed by the Non-domestic Rating (Collection and Enforcement) (Local List) Regulations 1989. We have a full copy of those regulations before us. The relevant regulation, in terms of the core requirement, is set out at page 3 of the Case Stated. Regulation 12(5) provides as follows:
"(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."
In the course of the hearing Mr Bibby accepted that he was liable to pay those non-domestic rates. Although he only became the leaseholder by an order of the High Court and did not in any practical sense occupy the premises, he was nonetheless the tenant of the premises for the relevant period. Moreover he accepted that the rates as demanded had not been paid.
The Case Stated sets out the lower court's position as it perceived it to be:
"This court [that is the Magistrates' Court] was only concerned with liability for the debt and could not at this stage consider ability to pay. In the circumstances, we did not consider it appropriate to look at the Human Rights Act and we made a liability order and ordered the respondent to pay £110 costs."
Mr Bibby has represented himself before us, as indeed he did before the magistrates. We say straightaway that we are extremely grateful to him for the detailed submissions he has provided at every step of these proceedings, most particularly by reference to a very detailed written submission prepared for the purposes of this hearing today.
His submissions to us orally were limited to a few points at the margins of his written submission. That is not to criticise the lack of oral submission, rather it is to commend the comprehensive nature of the written submission.
Our view of the case sadly cannot be a reflection of the work Mr. Bibby has done or the passion with which he has presented this case. It must be a reflection of the meaning of the relevant regulations and of the liability of Mr Bibby as it appeared to the Magistrates' Court at the liability hearing.
Mr Bibby, in essence, has two core submissions, coupled with a submission relating to the Human Rights Act. The first core submission is that whatever paragraph 5 of regulation 12 of the 1989 regulations may say, the Magistrates' Court jurisdiction was and is governed by subparagraph (2). That paragraph indicates that the process of making an application for a liability order involves the making of a complaint to a Justice of the Peace. It involves the request of an issue of a summons to the relevant person, in this case Mr Bibby, (and this is what Mr Bibby says is crucial):
"… to appear before the court to show why he has not paid the sum which is outstanding."
Mr Bibby argues that that can only mean, on any reading of the plain English, that he needs to be given an opportunity to explain why it is he has not been able to pay the sum for which he is liable. That is his first and crucial argument. It is that from which all his other arguments flow.
The respondent replies by saying this:
"Regulation 12 is concerned simply as a gateway to enforcement. It is not there to engage in any discussion as to means, or any other issue in relation to ability to pay. It is there in essence simply in order to allow the person concerned to indicate, if such be the case, that he has not been served with the demand or that he does not, as a matter of fact, occupy the property in relation to which the demand was issued. Once it is established that he is the person with the relevant interest in the property, and it has been established that he has not paid the relevant rates, the respondent says that is an end of it."
That is what regulation 12 means. Reliance is placed on a line of authority, in particular, a decision of this court by Burnett J (as he then was) in Secerno Ltd v Oxford Magistrates' Court [2011]...
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