Kingston Upon Thames London Borough Council v Marlow
| Jurisdiction | England & Wales |
| Judgment Date | 23 October 1995 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO 1344/95 |
| Date | 23 October 1995 |
[1995] EWHC J1023-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Before: Lord Justice Simon Brown -and- Mr Justice Scott Baker
CO 1344/95
MR B LANGSTAFF QC and MR A BRADLEY (Instructed by Director of Legal Services, Royal Borough of Kingston upon Thames, Kingston upon Thames, Surrey KT1 1EU) appeared on behalf of the Appellant.
MR G CLARKE (Instructed by Marlows, Kingston upon Thames, Surrey KT1 2HG) appeared on behalf of the Respondent.
.
The Royal Borough of Kingston upon Thames appeal by Case Stated from the decision of the Sutton Justices, sitting at Kingston upon Thames Magistrates' Court on 28th November 1994, refusing to make a liability Order against the Respondent, Michael Marlow, in respect of non-domestic rates alleged by the Royal Borough of Kingston upon Thames to be payable by him. The total sum involved is £ 1901.25, representing the rates due from 1st February 1994 to 31st March 1995 upon unoccupied office premises at 16-18 High Street, Kingston (hereinafter "the premises").
The information was preferred under the provisions of paragraph 12 of the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989, to which no further reference need be made. It is Kingston's case that the Respondent is liable pursuant to section 45 of the Local Government Finance Act 1988:
"(1) A person (the ratepayer) shall as regards a hereditament be subject to a non-domestic rate in respect of a chargeable financial year if the following conditions are fulfilled in respect of any day in the year-
(a) on the day none of the hereditament is occupied,
(b) on the day the ratepayer is the owner of the whole of the hereditament,
(c) the hereditament is shown for the day in a local non-domestic rating list in force for the year, and
(d) on the day the hereditament falls within a description prescribed by the Secretary "of State by regulations."
There was no question but that paragraphs (a), (c) and (d) of section 45(1) were here satisfied. The question is whether during the relevant period the Respondent was "the owner" of the premises.
Section 65(1) of the 1988 Act provides:
"The owner of a hereditament or land is the person entitled to possession of it."
The determinative question, therefore, becomes: was the Respondent during the relevant period entitled to possession of the premises?
The central facts are these. The Respondent occupied the premises for some 10 years until 30th November 1993. He did so under the terms of two consecutive leases, respectively dated 4th January 1983 and 15th May 1990, made between him as tenant and Refuge Assurance Plc (hereinafter "the landlord") as lessors. The second lease was for a term of 10 years from 29th September 1988 upon the Respondent's covenants, inter alia, to pay rent and service charges.
In about 1989 a dispute arose between the Respondent and landlord in connection with the latter's demands for contribution towards the costs of repairing the premises. The claim was made under the service charge covenant.
On 7th September 1990 the landlord issued and served upon the Respondent a High Court writ claiming damages for the non-payment of the repair charge and seeking forfeiture of the lease for breach of contract.
On 19th October 1990 the Respondent filed a Defence disputing the amount claimed by the landlord but not seeking relief from forfeiture. Whether the Respondent was disputing the claim in full or in part is unclear but, to my mind, ultimately immaterial.
On 30th November 1993 the Respondent vacated the premises and wrote to the landlords stating that he was relinquishing the tenancy. That letter he delivered by hand, together with the keys to the premises, and he has not since returned to them. Between the issue of the writ on 7th September 1990 and his vacating the premises on 30th November 1990 the Respondent paid the landlord mesne profits in respect of his occupation. Kingston at first issued a demand for rates addressed to the landlord. The landlord, however, wrote that the Respondent's "….. lease has not expired and consequently he is still responsible for the payment of all rates incurred on these premises." Kingston thereupon issued a demand upon the Respondent and, on 21st October 1994, the summons in these proceedings.
The critical questions now raised is, of course, this: as from 30th November 1993, when the Respondent vacated the premises and purported to relinquish his tenancy, was he or was the landlord properly to be regard as entitled to possession?
Before the Magistrates the completing arguments were essentially these. Kingston were contending that the tenant remained liable for the rates until he could produce a court Order finally determining that the relationship between landlord and tenant was at an end. The Respondent contended on the contrary that in the particular circumstances of this case the lease clearly was at an end: the landlord had sought forfeiture, and the tenant, so far from seeking relief from it, had instead accepted the termination of the lease and vacated the premises. The Magistrates accepted the Respondent tenant's argument. Mr Langstaff QC, for Kingston upon this appeal, submits that they were wrong to do so.
As far as contested forfeiture claims are concerned, the basic position in law is not in doubt. The issue and service of proceedings...
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