Melina Serpes v Mayor of the City of London
| Jurisdiction | England & Wales |
| Judge | Judge Walden-Smith |
| Judgment Date | 02 March 2017 |
| Neutral Citation | [2017] EWHC 1241 (Ch) |
| Docket Number | Case No: CH-2016-000205 |
| Court | Chancery Division |
| Date | 02 March 2017 |
[2017] EWHC 1241 (ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Her Honour Judge Walden-Smith
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: CH-2016-000205
William Hanbury appeared on behalf of the Appellant
Matthew Dale-Harris appeared on behalf of the Respondent
(As Approved)
This is an appeal brought by Ms Melina Serpes against the Mayor and Commonalty and Citizens of the City of London ("the City"). I am grateful in this case for both written and oral submissions of Mr Hanbury on behalf of the appellant and from Mr Dale-Harris on behalf of the respondent. I appreciate in particular that Mr Hanbury has only very recently been instructed on this matter. Ms Serpes was, until his late instruction, acting in person.
This is a rolled-up hearing of both an application for permission to appeal and, if permission is granted, the appeal itself. That application for permission is against the decision of Deputy District Judge Calhoun dated 8 July 2016. That was an order he made at Central London County Court within the Bankruptcy List.
So far as the extension of time for the application for permission to appeal is concerned, the application was made on 9 August 2016, although it is to be noted that the bar code on the file provides that the application for permission to appeal was in fact lodged a couple of days later. As the application for permission to appeal was with respect to an order made on 8 July 2016, it is an application that was made ten or more days after the expiration of the time limit for the application to be made. Sensibly, in my view, the City of London, as respondent to the appeal, do not take any specific point on that delay. It is not said that there has been any specific prejudice caused by reason of delay. However, the City of Westminster does say that it is a matter that should be taken into account in the round, given previous delays in this matter. Consequently, while the issue of delay is something for me to bear in mind, it is not considered to be what could be called a knock-out point with respect to this application.
So far as the application for permission to appeal is concerned, the matter was dealt with by Snowden J. sitting in this court. On that application he ordered that the City of London be at liberty to present a bankruptcy petition against the appellant, but that there be a stay of proceedings on any bankruptcy petition that has been presented until after determination of this application or further order in the meantime. He further ordered that a bundle be provided by the appellant by 4.00 pm on 5 October 2016. In his reasons he set out that the application does not disclose any clear grounds upon which the respondent should be prevented from presenting a bankruptcy petition pending determination of this appeal, but there is no reason for such petition to proceed to a hearing until after the determination of the appeal, and that the appellant could be irretrievably prejudiced if a bankruptcy order was made in the meantime and the appeal then allowed. He also made it very clear that a paginated index appeal bundle was essential, as without it the court could not understand the background to the order made and the basis of the appeal. There have been difficulties with respect to that appeal bundle and, indeed, Snowden J had to make a further order on 11 October 2016 giving the appellant an additional time for the filing of the appeal bundle. The reason the appellant had not filed the appeal bundle by 5 October 2016 was because, she says, that she had lost the appeal file in a taxi on the way to court on the last day, 5 October 2016. Snowdon J. made the sensible remark that she had been given a month to file the appeal bundle and so she should have left the matter so late. Snowden J told her that he was not going to give her the 21 days she sought, but that he was (generously) going to allow her some limited further time. The bundle that I have had provided to me was not paginated, but Mr Hanbury very helpfully provided me with an additional copy and between us we have managed to find our way through the relevant documents.
The evidential history of this matter is set out in the first witness statement of Heather Adeyemi. She is employed by the City of London as a technical manager. The City of London is the billing authority for the square mile for the purposes of the Local Government Finance Act 1988 and is responsible for the collection of non-domestic rates.
Ms Adeyemi sets out in her statement that she was instructed to instigate bankruptcy proceedings against Ms Serpes for non-payment of a non-domestic rate with respect to the subject property at 46 Moorgate, London EC2R 6EL ("46 Moorgate") in what has been described by Mr Hanbury as a relatively small sum of £20,999.33. That sum for non-domestic rates is for the period between 1 April 2015 and 31 March 2016. Ms Serpes is the freehold owner of 46 Moorgate and has been since 10 February 2012. I have had the benefit of seeing the office copy entries which are attached to the statement of Ms Adeyemi.
During the charging period of the 1 April 2015 and 31 March 2016 the property was believed to be unoccupied and as a consequence the appellant was liable to pay unoccupied business rates. She was, so far as the City of London is concerned, the person entitled to possession pursuant to the provisions of Section 45 and 65 of the Local Government Finance Act 1988. I will come back to that issue of occupation and possession in due course.
On 28 August 2015 a demand notices were served, having been issued under Regulation 4(1) of the Non-Domestic Rating (Collection and Enforcement) (Local List) Regulations 1989. The demand notices were sent and served by being sent to the building at 46 Moorgate. The City of London was aware of the property being unoccupied, but no other address had been provided by Ms Serpes and this was, therefore, the last known address of the appellant.
The first payments were due under those demand notices by 15 September 2015. No payment was made and reminder notices were sent on 13 October 2015. Again, no payment was made. On 9 November 2015 complaint was made to the City of London Magistrates Court and summonses were served upon Ms Serpes at 46 Moorgate. Evidence has been provided by Ms Adeyemi that the demand notices, the reminder notices and the summonses were not returned by the Post Office as having been undelivered so that there was good service.
On 10 December 2015 liability orders were obtained, again at the City of London Magistrates Court, on the basis that a sum that was due remained outstanding. I am going to come back to those liability orders in due course. Notices were again sent to 46 Moorgate by post on 11 December 2015 and again those notices were not returned undelivered.
On 8 February 2016 the accounts were passed to the enforcement agents who act for the City of London who returned all the orders on 10 March 2016 on the basis that despite enquiries they had made they had been unable to ascertain the whereabouts of Ms Serpes. A statutory demand was issued and on 1 June 2016 there was an attempt to serve that statutory demand as a prerequisite to bankruptcy proceedings. The statutory demand was served by post to 46 Moorgate.
Ms Serpes has made it clear that none of those various documents – the demand notices, reminder notices, summonses – had come to her attention. She says the first she knew about these various notices was when she attended the property in order to have a meal at the restaurant which occupies the ground floor of 46 Moorgate. What she says in her witness statement dated 21 June 2016, made in support of her application to set aside the demand notice, was that on 18 June 2016 she went to restaurant to eat a meal and was informed that there was an envelope for her and that it had been erroneously opened. She said that upon reading the contents of that envelope she became aware of an issue that exists between the tenant of the upper parts of the building and the City of London in relation to the unpaid rates for the period 2015 to 2016. She says in her statement, "NNDR rates should have been collected by the Council from the tenant. I am neither the occupant, nor am I the tenant. I therefore informed the Council by letter in 2015. I wrote to the Council and hand-delivered the letter on 21/6/2106 and I informed the Council of the following…" Ms Serpes then set out in her statement that the liability order was wrongly obtained in her name and that there was a serious miscarriage of justice, that she had a genuine dispute about the debt, that the liability order was obtained through misrepresentation and that she had not received that post.
Ms Serpes does not specify the actual date of the 2015 letter she refers to and indeed that as she is referring to what she did after she found out about what had been going on and is, in fact, a reference to the letter dated 21 June 2016. However, that is an issue of fact and it does not seem to me that it is appropriate for this court to delve into such issues.
Ms Serpes' case is, in essence, the one that she sets out in that first witness statement: that she is not the occupant and she is not the tenant and she is not liable. She also complains that the City had been sending notices and communications to an address, namely 46 Moorgate, that they knew to be unoccupied and (she says) they knew...
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