Tallington Lakes Ltd v South Kesteven District Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Etherton |
| Judgment Date | 15 February 2012 |
| Neutral Citation | [2012] EWCA Civ 443 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2011/0208 |
| Date | 15 February 2012 |
[2012] EWCA Civ 443
Lord Justice Etherton
Case No: A2/2011/0208
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE NORRIS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Morgan (instructed by Tallington Lakes) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
(As Approved)
Lord Justice Etherton
This is an oral renewal of an application for permission to appeal the order of Norris J on 14 January 2011, by which he ordered that, save that the respondent, South Kesteven District Council ("the Council"), be restrained from presenting a winding-up petition against the appellant, Tallington Lakes Limited ("TLL"), at any time on or before Friday 21 January 2011, TLL's application for an order restraining the presentation of a winding-up petition by the Council be dismissed and the Council shall be at liberty to present a petition after that date.
The application for permission to appeal was dismissed on the papers by Lloyd LJ on 26 May 2011.
TLL was represented at the hearing before Norris J by Mr Neil Morgan, who is recorded in the judgment of the Judge as being the sole director of TLL and the sole shareholder of Tallington Holdings Limited, TLL's parent company. The Judge said that he agreed to permit Mr Morgan to represent TLL "with some reluctance" because the Judge considered that the determination of the issue raised by TLL's application would have been much assisted by qualified representation on the part of TLL and "the introduction of a degree of distance and objectivity between TLL and its advocate".
In dismissing the application for permission to appeal on the papers Lloyd LJ said that, if Mr Morgan wished to apply to represent TLL at this oral hearing, his application should be made in writing in advance of the hearing and it should not be assumed that it would necessarily be successful. Lloyd LJ said that TLL "…would be very well advised to obtain legal advice and representation for such a hearing." No such written application has been made, and no legally qualified person appears on behalf of TLL today. Mr Morgan has nevertheless asked to be authorised to represent TLL in this hearing. I have permitted him to do so in relation to the question of the amount of outstanding interest as at the date of the hearing before Norris J. In view of the submissions made by Mr Morgan before me, I also consider that it would have been of value if a legal representative had been instructed.
The background is set out in detail in the judgment of the Judge. It is sufficient, for the purposes of this application, to state the following. Liability orders in respect of non-domestic rates were made against TLL in December 2006 and July 2007 in the sum of £99,366. Those demands founded a winding-up petition by the Council. In the course of the petition, the petition debt was reduced by credits to £40,715. The petition was dismissed on 12 January 2009 after TLL paid that sum. TLL was ordered to pay the costs of the petition. Those costs were the subject of a final costs certificate by Costs Judge Gordon-Saker dated 15 July 2009. The assessed costs totalled £9,433, of which just over £1,500 represented the costs of the assessment and the balance the cost of the petition. TLL sought to appeal that costs order, but permission to appeal was refused and the appeal was struck out.
A further liability order against TLL was made on 10 April 2008 by the Grantham Magistrates in the sum of £59,232.50 relating to rates liabilities from 1 April 2006 through to 1 April 2008. On receipt of the summons in respect of the rate liability, Mr Morgan wrote a letter, the tenor of which was that the company previously made liable for the rates had been Tallington Ski Centre Limited. TLL was not present when the liability order was made. TLL says that this is because (a) it was never properly served with a notice of the adjourned hearing of the summons, and (b) it did not receive the recorded delivery letter (which was in fact signed for) sent by the Council giving the date of the revised hearing.
The Grantham Magistrates made a further batch of liability orders on 15 October 2009 relating to liabilities for the years 2008 to 2009 and 2009 to 2010. The total sum due under those liability orders was £133,184. The Council had no evidence at the hearing in support of its summons and complaint, but TLL did. Notwithstanding that, Deputy District Judge Dhaliwal (sitting as part of the Grantham Bench) made the liability orders.
Once the October 2009 liability orders had been made there was a threat by the Council of a petition to wind-up TLL. It was this that led to the application by TLL before the Judge. On 18 January 2010 TLL applied for an injunction to restrain the Council presenting a winding-up petition.
TLL was intending to take Judicial Review proceedings in respect of the liability orders made on 15 October 2009.
On 1 February 2010 Briggs J ordered that (a) provided that TLL had by no later than Friday 5 February 2010 paid to the Council in cleared funds its liability under the costs order and the final costs certificate (dated respectively 12 January and 15 July 2009), and (b) upon the Council's undertaking (subject to that proviso) not to present a winding-up petition against TLL pending the return date of TLL's...
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