R Cava Bien Ltd v Milton Keynes Council
| Jurisdiction | England & Wales |
| Judge | Kate Grange |
| Judgment Date | 10 November 2021 |
| Neutral Citation | [2021] EWHC 3003 (Admin) |
| Docket Number | Case No: CO/3475/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3003 (Admin)
Kate Grange QC (sitting as a Deputy Judge of the High Court)
Case No: CO/3475/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sami Rahman (instructed by Prime Solicitors) for the Claimant
David Graham (instructed by Milton Keynes Council) for the Defendant
Hearing date: 13 October 2021
Approved Judgment
Kate Grange QC (sitting as a Deputy Judge of the High Court):
INTRODUCTION
The Claimant, Cava Bien Ltd, is a small fashion retail company, which operates from a unit on an industrial estate in Milton Keynes. On 2 September 2020 the Defendant refused its applications for business rate relief and a grant which it had applied for under schemes designed to support certain businesses during the coronavirus pandemic. By these judicial review proceedings the Claimant seeks to challenge those refusals. The Defendant admits that it erred in law when it rejected the applications on the basis that the property was not occupied by the Claimant; it now accepts that the property was in some form of beneficial occupation by the Claimant at the material time. However the Defendant seeks to defend these proceedings in reliance on s. 31(2A) of the Senior Courts Act 1981 (‘the 1981 Act’). It contends that it was “highly likely” that the outcome of the applications would not have been substantially different if the unlawful conduct had not occurred, because it would have refused them due to a lack of evidence that the property was wholly or mainly used as a “shop” which was “reasonably accessible to members of the public”.
PROCEDURAL HISTORY
On 28 September 2020 the Claimant filed an application for judicial review. Four grounds of challenge were identified:
i) Ground 1 – failure to disclose relevant information by failing to disclose the notes of inspections of the property;
ii) Ground 2 – failure to take into account supporting video evidence as well as a sworn Statutory Declaration confirming occupation of the property;
iii) Ground 3 – failure to take into account that the Claimant's liability for business rates had continued unabated;
iv) Ground 4 – failure to properly evaluate the appropriateness of the decision in the light of all relevant facts.
No Acknowledgement of Service (AOS) or Grounds of Resistance were served by the Defendant by the relevant deadline of 28 October 2020 and the papers were prepared for determination of permission for judicial review. On 21 December 2020 an application seeking an extension of time to file an AOS was made, however on 15 January 2021 this was refused by Mr David Lock QC sitting as a Deputy High Court Judge. Mr Lock QC granted permission for judicial review and set case management directions. He noted that the Defendant had failed to provide disclosure of the inspection reports which it claimed to have carried out to support the case that the property was unoccupied and he set a date for disclosure of the same.
On the same day that Mr Lock QC granted permission, the Defendant filed an AOS and Summary Grounds of Defence. Those were accompanied by a witness statement from Mr Robert Hayle, the Defendant's Business Rates Team Leader, dated 15 January 2021. Mr Hayle was the officer within the Council who made the decisions under challenge by the Claimant. On 13 May 2021 the Defendant confirmed that it wished to rely on its Summary Grounds in defence of the claim.
Shortly before the substantive hearing a flurry of additional evidence was served by both parties. On 30 September 2021 the Claimant made an application for permission to rely upon the witness statement of Mr Ibrahim Oluwakemi, sole director and majority shareholder of the Claimant company, dated 30 September 2021. Unfortunately that application was not placed before me until the day before the hearing, due to an administrative error on the court's part which was not the Claimant's fault. On 8 October 2021 the Defendant made an application for permission to adduce a second witness statement from Mr Hayle dated 7 October 2021. In that statement Mr Hayle sought to correct and clarify a number of matters in his first statement and he also sought to respond to the witness statement of Mr Oluwakemi. The Defendant also made a written application to cross-examine Mr Oluwakemi at the substantive hearing. On 12 October 2021 the Claimant filed a supplementary statement from Mr Oluwakemi dated 12 October 2021. That further statement was said to be in response to Mr Hayle's second witness statement.
At the outset of the hearing on 13 October 2021 I made clear that the submission of late evidence on the part of both parties was unacceptable and was to be discouraged, not least given the numerous recent cases which have affirmed the importance of procedural rigour in judicial review proceedings. However, in the interests of expediency and given the limited time available for the hearing, I indicated that I would allow the evidence into the proceedings, but on the basis that it was open to either party to make submissions about its weight and relevance given the particular exercise the court has to perform under s. 31(2A) of the 1981 Act. As is apparent from paragraph 52 below, both parties accept that the exercise I have to conduct should primarily focus on the evidence in existence at the time of the relevant decisions and I should be cautious about relying upon statements or speculation after the event. In addition, and perhaps most significantly, there was very little reference at all to the additional evidence in the parties' oral submissions. Much of that evidence is simply irrelevant to the issue I have to decide (or relates to complaints which are not relevant to the pleaded grounds for judicial review) and so I say no more about it at this stage.
Sensibly, given the lateness of the application and the exceptional course which this would have represented (see R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841), the Defendant did not pursue its written application to cross-examine Mr Oluwakemi at the substantive hearing.
THE RELEVANT SUPPORT SCHEMES
The Retail, Hospitality and Leisure Grant Fund Scheme (RHLG) was set up and funded by the Department for Business, Energy and Industrial Strategy (‘BEIS’) to support eligible retail and hospitality businesses, pursuant to section 31 of the Local Government Act 2003 (‘the 2003 Act’).
Section 31 of the 2003 Act provides, so far as material:
“'31 Power to pay grant
(1) A Minister of the Crown may pay a grant to a local authority in England towards expenditure incurred or to be incurred by it. …
(3) The amount of a grant under this section and the manner of its payment are to be such as the person paying it may determine.
(4) A grant under this section may be paid on such conditions as the person paying it may determine.”
BEIS published a document ‘Grant Funding Schemes: Small Business Grant Fund and Retail, Hospitality and Leisure Grant Fund Guidance’ in March 2020, paragraph 2 of which explained:
‘This guidance sets out the criteria which central government considers for this purpose to be eligible for the Small Business Grant Fund and the Retail, Hospitality and Leisure Grant Fund…’
The scheme utilised the existing non-domestic rating system in order to provide grants for eligible businesses. As set out at paragraph 14, eligible businesses with a rateable value of over £15,000 and less than £51,000 will receive a grant of £25,000 in line with the eligibility criteria.
Paragraphs 24 to 25 of the guidance set out the relevant criteria:
Retail, Hospitality and Leisure Grant
24. Hereditaments which on the 11 March 2020 had a rateable value of less than £51,000 and would have been eligible for a discount under the business rates Expanded Retail Discount Scheme had that scheme been in force for that date are eligible for the grant….
25. Eligible recipients will be entitled to receive one grant per hereditament from the earlier of the date of payment of the grant by the Local Authority or 1st April 2020.” (emphasis added)
It being common ground that the property was a “hereditament” for the purposes of non-domestic rating law with a rateable value of under £51,000, it follows from the above criteria that the Claimant's application had to satisfy the Council that the property would have been eligible for a discount under the ‘Expanded Retail Discount Scheme’ (‘ERDS’).
The ERDS is a scheme whereby the Ministry of Housing, Communities and Local Government (‘MHCLG’) funded a 100% discount from business rates for eligible businesses in the year 2020/21 pursuant to s.31 of the 2003 Act. The discount was granted by billing authorities using their discretionary power to grant relief from rates under s.47 of the Local Government Finance Act 1988. The eligibility criteria for the ERDS was set out in guidance issued by MHCLG on 2 April 2020, namely the ‘Business Rates: Expanded Retail Discount 2020/21: Coronavirus Response – Local Authority Guidance’. That Guidance provided, so far as relevant, as follows:
“2. This guidance sets out the criteria which central government considers for this purpose to be eligible for the Expanded Retail Discount…
…
Which properties will benefit from relief?
10. Properties that will benefit from the relief will be occupied hereditaments that are wholly or mainly being used:
a. as shops, restaurants, cafes, drinking establishments, cinemas and live music venues,
b. for assembly and leisure; or
c. as hotels, guest & boarding premises and self-catering accommodation.
11. We consider shops, restaurants, cafes, drinking establishments, cinemas and live music venues to mean:
i. Hereditaments that are being...
To continue reading
Request your trial
-
The King on the application of CU (by his mother and litigation friend, DV) v Secretary of State for Education
...concerning the proper approach to this test in the decision of Ms Kate Grange QC in R (Cava Bien Limited) v Milton Keynes Council [2021] EWHC 3003 (Admin) at paragraph 52. As is made clear in that summary, the “highly likely” standard sets a high hurdle, where the court has to evaluate wha......
-
(1) HPSPC Ltd v Secretary of State for Education
...have been substantially different if the conduct complained of had not occurred”. 162 In R (Cava Bien Ltd) v Milton Keynes Council [2021] EWHC 3003 (Admin) at [52], Kate Grange QC (sitting as a Deputy Judge of the High Court) distilled the key principles from the authorities, the following......
-
Gloria Noren v The Secretary of State for the Home Department
...proper approach to this test has been considered in a number of authorities (see for example: Cava Bien Ltd v Milton Keynes Council [2021] EWHC 3003 Admin where Kate Grange QC (as she then was) sitting as a Deputy High Court Judge summarised the principles). Grounds and Submissions 27 I tu......
-
The King on the application of Rhieni Dros Addysg Gymraeg v Neath Port Talbot County Borough Council
...judgment of Ms Kate Grange QC (as she then was) sitting as a deputy High Court judge in R (Cava Bien Ltd) v. Milton Keynes Council [2021] EWHC 3003 (Admin) and the 14 propositions she drew from the cases, at [52], which I do not repeat here. He submitted that the high threshold was not rea......