Naim Lone v London Borough of Hounslow
| Jurisdiction | England & Wales |
| Judge | Lord Justice Arnold,Lady Justice Asplin,Lord Justice Underhill |
| Judgment Date | 17 December 2019 |
| Neutral Citation | [2019] EWCA Civ 2206 |
| Date | 17 December 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2019/0781 |
[2019] EWCA Civ 2206
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
His Honour Judge Hellman
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lady Justice Asplin
and
Lord Justice Arnold
Case No: B2/2019/0781
Charlotte Thomas (instructed by Lone & Co Solicitors) for the Appellant
Shomik Datta (instructed by Brian McKenna & Co) for the Respondent
Hearing date: 4 December 2019
Approved Judgment
Introduction
The issue on this appeal is whether the County Court has jurisdiction to entertain a claim for repayment of allegedly overpaid council tax. His Honour Judge Hellman sitting in the County Court at Central London held that it did not, since the Valuation Tribunal had exclusive jurisdiction over such claims. The Appellant (“Mr Lone”) contends that the County Court does have jurisdiction.
Background
The claim form in these proceedings was issued in the County Court Business Centre on 5 October 2017. The Claimant was named as AL Law & Associates LLP (“AL Law”) and its address was given as 55 Church Road, Wimbledon Village, London SW19 5DQ. The amount claimed was £3,000. The Particulars of Claim pleaded the Claimant's case as follows:
“The Claimant's claim is for the recovery of overpayments made and the defendant's failure to provide single person discount from April 2006–2008 and 1 st April 2013 to the date hereof which resulted in the overpayments on a continuous and rolling basis.”
Although the Particulars of Claim did not expressly say so, the reference to single person discount (“SPD”) made it tolerably clear that the claim was one to recover alleged overpayments of council tax. Equally, it was implicitly being alleged that AL Law was entitled to SPD. There was no indication as to how the sum of £3,000 was calculated, however. In particular, no particulars were given of the relevant council tax demands or payments or of any requests for repayment. In addition to the claim for £3,000, there was a claim for interest.
On 12 October 2017 the Respondent (“the Council”) filed an acknowledgment of service indicating its intention to contest the claim. On 19 October 2017 the Council filed a Defence which it appears was drafted by Claudette Gayle, an officer of the Council. The Defence proceeded on the assumption that the true claimant was not AL Law, but rather Mr Lone. Although the Defence did not explain why the Council made that assumption, it is clear from subsequent correspondence that AL Law is a firm of solicitors of which Mr Lone appears to be the sole practising member. The Council accepted that Mr Lone had not been granted SPD with respect to his council tax in respect of the periods in question, but contended that the reason for this was that Mr Lone had failed to complete and return the relevant review forms which he had been sent by the Council. By contrast, he had completed and returned the relevant forms in respect of the periods 25 November 2004 to 6 March 2006 and 1 April 2008 to 31 March 2013, and as a result he had been granted SPD for those periods. In short, therefore, the Council was contending that Mr Lone had not established his entitlement to SPD in respect of the periods in dispute. Although the Defence did not identify the relevant dwelling, it can be seen from a letter from the Council to Mr Lone dated 19 September 2017 which preceded the issue of the Claim Form that it is a flat at 43 Chiswick High Road, Chiswick, London W4 2LT.
On 11 November 2017 the County Court of its own motion ordered that, unless the Council filed a Directions Questionnaire (“DQ”) within seven days of service of the order, its Defence would be automatically struck out without further order. The order was received by the Council on 5 December 2017. Since it bore no reference, it was sent to the Council's solicitors, who struggled to identify the subject matter of the proceedings. It was not seen by Ms Gayle until 2 January 2018 when she returned to work following the Christmas break.
On 8 January 2018 the Council filed its DQ and issued an application (i) for relief from sanction and (ii) to strike out the claim. The application was supported by a witness statement from Ms Gayle. She explained why the DQ had not been filed in time. She also said that she did not believe that AL Law was entitled to any money from the Council, and that its claim should be struck out, since it was a business which (i) did not pay council tax, (ii) could not claim an SPD, (iii) had not made any payments to the Council and (iv) was located outside the boundaries of the Council. Although she did not say so in terms, it is obvious that the point she was making was that AL Law was the wrong claimant.
The Council's application was heard by Deputy District Judge Jacobs on 1 February 2018. She refused to grant the Council relief from sanction. Applying the well-known three-stage test in Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926, she concluded that the breach was a serious and significant one, that there was no good reason for it and that in all the circumstances of the case it was not appropriate to grant relief. She went on to say that, if she had granted relief from sanction, she would not have struck out the claim, but would have given AL Law the chance to amend the claim form to substitute Mr Lone as the claimant. She nevertheless made an order giving judgment for the Claimant (i.e. AL Law) for £3,000 plus interest and costs.
On 28 February 2018 Mr Lone applied to be substituted as claimant in place of AL Law. On 15 May 2018 District Judge Smart duly made an order substituting Mr Lone as claimant. I would point out that Mr Lone thereby implicitly acknowledged that the claim was wrongly constituted when it was issued.
The Council appealed against DDJ Jacobs' order. The appeal was heard by Judge Hellman on 14 September 2018. He allowed the appeal on two grounds. First, he held that DDJ Jacobs had not correctly applied the third stage of the Denton v White test because she had not considered the effect of the Council's failure to file its DQ on time. Secondly, he held that the County Court had no jurisdiction to entertain Mr Lone's claim, since the Valuation Tribunal had exclusive jurisdiction over disputes concerning council tax. The latter point had not been raised before DDJ Jacobs.
Accordingly, Judge Hellman made an order paragraph 1 of which set aside the order of 1 February 2018 and paragraph 3 of which dismissed the claim.
On 30 July 2019 Lewison LJ granted Mr Lone permission to appeal on the sole ground that the Judge was wrong to hold that the County Court had no jurisdiction to entertain Mr Lone's claim, but refused permission to appeal on a number of other grounds. It follows that Mr Lone only has permission to challenge paragraph 3 of Judge Hellman's order, and not paragraph 1.
The appeal was very well argued on both sides. It is clear that, as a result, we received much more detailed submissions than Judge Hellman did, and were referred to a considerable body of legislation and case law that he was not referred to. Accordingly, without intending any disrespect to the learned judge, I shall not refer to the reasons he gave for reaching the conclusion he did.
The jurisdiction of the County Court
Unlike the High Court, the County Court has no inherent jurisdiction. It only has the jurisdiction conferred on it by statute, namely the County Courts Act 1984 (as amended). This provides, so far as relevant to this appeal:
“ 15. General jurisdiction in actions of contract and tort
(1) Subject to subsection (2), the county court shall have jurisdiction to hear and determine any action founded on contract or tort.
…
16. Money recoverable by statute
The county court shall have jurisdiction to hear and determine an action for the recovery of a sum recoverable by virtue of any enactment for the time being in force, if—
(a) it is not provided by that or any other enactment that such sums shall only be recoverable in the High Court or shall only be recoverable summarily.”
“Enactment” includes subordinate legislation: section 23(2) of the Interpretation Act 1978. “Recoverable summarily” means recoverable summarily as a civil debt in a Magistrates' Court under section 58 of the Magistrates' Court Act 1980.
Outline of the rival contentions
Although it is exiguously pleaded, the essence of Mr Lone's case is that he has overpaid council tax because at the relevant dates he was entitled to SPD which was not allowed in the demand notices which he was sent by the Council, and therefore he is entitled to repayment of the excess amounts he paid. Mr Lone's primary case is that he can make this claim under regulations 31 and 55 of the Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992/613) (as amended, “the 1992 Regulations”), which the County Court has jurisdiction to entertain by virtue of section 16 of the 1984 Act. In the alternative, Mr Lone contends that he has a restitutionary claim for unjust enrichment either on the Woolwich principle (see Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70) or on the ground of mistake, which the County Court has jurisdiction to entertain by virtue of section 15 of the 1984 Act. Mr Lone accepts that he could have appealed to the Valuation Tribunal, but contends that the jurisdiction of the Valuation Tribunal is concurrent with that of the County Court.
The Council contends that it is implicit in the statutory scheme that the Valuation Tribunal has exclusive jurisdiction over disputes as to the correct amount of council tax which is payable, and thus the County Court does not...
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