Patricia Polley Against West Lothian Council And The Accountant In Bankruptcy
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2014] CSOH 98 |
| Court | Court of Session |
| Published date | 06 June 2014 |
| Year | 2014 |
| Date | 06 June 2014 |
| Docket Number | A112/12 |
| OUTER HOUSE, COURT OF SESSION
| |
|
| [2014] CSOH 98
|
| A112/12
| OPINION OF LORD BOYD OF DUNCANSBY
in the cause
PATRICIA POLLEY
Pursuer;
against
WEST LOTHIAN COUNCIL and THE ACCOUNTANT IN BANKRUPTCY
Defender:
________________
|
Pursuer: Party
First Defender: Barne; Simpson & Marwick
Second Defender: Ower; Harper Macleod
6 June 2014
[1] This is an ordinary action in which the pursuer seeks reduction of five summary warrants, a charge for payment of money and decree of sequestration of the pursuer granted by the sheriff at Hamilton on 22 March 2010. This action arises out of a dispute about the pursuer's non-payment of council tax going back to 1999. The first defender is the local authority to whom the tax is said to be due. The second defender is the Accountant in Bankruptcy. The pursuer represented herself.
Background
[2] The pursuer clearly has a deep sense of grievance. She says that she is not liable to pay the tax. The first defender takes a different view. Whether she is right to feel aggrieved I cannot tell and it is not part of this action to determine liability for tax. The pursuer's sense of grievance is added to by a feeling of injustice; she considers that she has not had a fair hearing on the issue of her liability to pay council tax. I found it astonishing that matters had got to this stage with so many summary warrants (there appear in fact to have been 10 in total) and a charge going unchallenged before the first defender took what must be the step of last resort by lodging a petition for sequestration. As Lord Hodge observed in Aitken v Aitken 2005 CSOH 105 at paragraph 5, if a debtor is seeking to challenge the debt upon which the charge proceeds and suspends the charge, he should do so before the expiry of the days of the charge. Other challenges should be mounted before the petition for sequestration is initiated. What is envisaged in this passage and on the authorities is a judicial challenge. The pursuer said that she did challenge the charges. On inquiry that appeared to be limited to delivering to the sheriff officers documentation which she said proved that she was not liable for the tax. At no point did she appeal her liability or otherwise seek to judicially challenge the basis upon which the first defender held her responsible for the payment of council tax.
[3] On 17 December 2009 the pursuer was served with a charge for payment for council tax owed on a property within their area for the year ending 31 March 2009. The total amount charged was £1,336.87. The charge notified the pursuer that if she did not pay the amount within 14 days she was liable to have further action taken against her including sequestration. It advised her to consult a solicitor, Citizens Advice Bureau or other local advice centre immediately if she was not sure what to do. The pursuer told me that she believed that she had no right of appeal. That is wrong; she did have a right of appeal but she did not exercise it. I asked her what advice she had sought, if any. She told me that she had gone to the Citizens Advice Bureau but that they were unable to help. She was told to go to a solicitor. She said that she had phoned the Law Society and then got in touch with 52 firms of solicitors. None of them would assist her. Since her sequestration the pursuer has researched the law and brought these proceedings for reduction. She produced a succinct note of argument which she advanced at the procedure roll debate. She was ably assisted by a friend and supporter, Mrs Stirling. The second defender has entered into her office and I understand that steps are being taking to take possession of the pursuer's house. It is sad that matters have progressed to this stage given the ample opportunities which the pursuer had to challenge her liability for tax before sequestration was awarded.
[4] I record in summary the main submissions for the parties taken from the written notes of argument and the oral submissions.
Submissions for first defender
[5] Mr Barne submitted that section 15(4) of the Bankruptcy (Scotland) Act 1985 ("the 1985 Act") provided that without prejudice to any right to bring an action of reduction of an award of sequestration such an award was not subject to review otherwise than by recall under sections 16 and 17 of the Act. Reduction was only available where there were exceptional circumstances, e.g. fraud on the court; Adair v Caldwell & Sons 1926 SC (HL) 51, Viscount Dunedin at pages 55-56, Lord Shaw at pages 60-62 and Lord Carson at page 67; Central Motor Engineering Co v Galbraith 1918 SC 755, Lord President at pages 765-766 and 768-769, Lord Mackenzie at pages 769-770 and Lord Skerrington at pages 770-771; and Smillie v Olympic House Limited 2004 SLT 1244, Lord Drummond Young at paragraphs 6 and 10. There must be specific averments in support of such a plea; Smillie per Lord Drummond Young, paragraph 6. In this case there were no such averments. There was a reference to fraud in the pursuer's note of argument but nothing more. The test is a high one. The remedy is only available in such exceptional circumstances.
[6] Reduction is not available where recall has been sought; Wright v Tennant Caledonian Breweries Limited 1991 SLT 823; Adair at page 55; Smillie; Bain v Hugh L S McConnell Ltd 1991 SLT 691; McBryde, Bankruptcy (2nd Edition) at paragraph 6-24. In this case the pursuer had attempted to recall the award of sequestration before the sheriff principal. In any event the court must scrutinise the averments with particular care.
[7] If the award of sequestration could not be reduced it was not competent to reduce the charge and summary warrants. The pursuer appeared to consider that because the first defender had not responded to a notice of appeal served on them under section 81(4) of the Local Government Finance Act 1992 she had no right of appeal. That was untrue as section 81(7)(c) provided that if the period of 2 months elapsed without a response from the local authority an appeal may be made to the local valuation committee. The pursuer also suggested that because the first defender had not taken the enforcement steps listed in Schedule 8 to the 1992 Act they could not proceed to summary warrant. That again was not correct; section 209 of the Bankruptcy and Diligence Etc (Scotland) Act 2007. The summary warrant is the authority to serve the charge.
[8] The first defender had a plea of competent and omitted. Mr Barne referred me to McPhail on Sheriff Court Practice at paragraph 2.112. In this case it appeared to be that the challenge was made on the basis that the court at Hamilton did not have jurisdiction. Such a point could have been taken at the sheriff court hearing which made the award of sequestration or indeed at the recall hearing. It was not. Accordingly that aspect of the case should be excluded. Similarly suggestions that the sheriff at Linlithgow did not have jurisdiction to grant summary warrants were not made at the relevant time.
[9] Insofar as the note of argument contained a plea in terms of section 6 of the Prescription and Limitation (Scotland) Act 1973 that the debt due between 1999 and 2004 had prescribed there was no hint of such a plea in the pleadings. In any event this was a tax and section 6 did not apply.
Submissions for second defender
[10] Ms Ower in a short submission adopted the submission of the first defender. She advised that the second defender had entered upon her office. Significant procedure had taken place including proceedings to recover the possession of the pursuer's house. Eviction was about to take place. The pursuer had failed to make any averments which addressed the consequences of the remedies which she seeks. Three years had passed since the award of sequestration had been made. The longer a sequestration has proceeded the more difficult the consequences of undoing the sequestration; Arthur v The SMT Sales & Services Company Limited 1999 SC 109 at 115.
Submissions for the pursuer
[11] The pursuer moved me to repel the preliminary pleas-in-law for the defenders. She submitted that she was denied the opportunity to appeal the award decision of the sheriff. She had marked an appeal and a hearing had been set for 20 July 2010. However on 9...
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