Westminster City Council v Tomlin
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE FOX,LORD JUSTICE CROOM-JOHNSON,LORD JUSTICE MANN |
| Judgment Date | 30 June 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0630-10 |
| Docket Number | 89/0654 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 June 1989 |
[1989] EWCA Civ J0630-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
(MR JUSTICE HENRY)
Royal Courts of Justice,
Lord Justice Fox
Lord Justice Croom-Johnson
Lord Justice Mann
89/0654
LORD GIFFORD, Q.C. and MR D. BROATCH (instructed by Messrs. Cohen & Naiker) appeared on behalf of the Appellant.
MR CHRISTOPHER COCHRANE Q.C. and MR R. HONE (instructed by
the City Solicitor and Secretary of the City of Westminster) appeared on behalf of the Respondents.
I will ask Lord Justice Croom-Johnson to give the first judgment.
This is an appeal from the judgment of Henry J., who allowed an appeal by way of Case Stated, from a decision of the Stipendiary Magistrate sitting at Horseferry Road. The Westminster City Council had laid a complaint that Mr Tomlin, being a person duly rated and assessed in the City, had failed to pay the sum of £27,090.20p. being the general rate and costs in the summons for the period 1st April 1983 to 31st March 1987 in respect of the premises described in the valuation list as "House, garage and premises, 21 Avenue Road, N.W.8". The Council applied under the General Rate Act 1967, Section 97(1), for a warrant for distress.
The rating authority cannot know the full circumstances surrounding each rateable property in its area, and Section 97(1) contemplates that if the authority establishes a prima facie case that the rates have been properly demanded and not paid, the burden of proof then shifts to the respondent to the summons to appear and show for one reason or another why he has not paid (see Des Salles D'Epinoix v. Kensington and Chelsea (Royal) London Borough Council (1970) 1 W.L.R. 179, per Lord Parker, L.C.J, at page 182. In the present case the issue is whether Mr Tomlin was in rateable occupation.
The premises concerned are the former Cambodian Embassy. The Government of Cambodia was overthrown in the mid 1970's, when a rival regime, namely Pol Pot and the Khmer Rouge, took power in that country. The country's diplomats thereupon left the embassy, and thereafter the premises were occupied by trespassers, of whom Mr Tomlin was one. He has remained there ever since.
Since then no rates have been paid in respect of the premises. An attempt to obtain payment up to 31st march 1983 proved unsuccessful.
It is necessary to read at some length the facts as found by the Magistrate, which were as follows:
"2(b) The making publication and demand of the general rate in question was according to law.
(c) The premises had been occupied from 1st April 1983 to 31st March 1987 and the amount due including costs was correctly calculated at £27,090.20.
(d) The respondent's name appeared in the 'Rating Records' as the ratepayer and he had been residing in the hereditament together with about seven other persons calling themselves the Guild of Transcultural Studies.
(e) The hereditament had been the Cambodian Embassy until the mid 1970's when it was vacated by the diplomatic representatives of the Government of the Khmer Republic and thereafter it was occupied (as to tenancy there was no evidence) by the Guild of Transcultural Studies, an unincorporated association; the Guild's brass nameplate was affixed to the front of the hereditament.
(f) An officer of the appellants visited the here-ditament by appointment on 21st September 1982 and was shown over it by the respondent and the latter's solicitor and took tea with them. The purpose of the visit was to discuss the situation about rates and the respondent mentioned that the Guild had applied for charitable status. The officer of the appellants explained that if this application had succeeded the respondents might have obtained the benefit of Section 40 of the General Rate Act 1967. The respondent told the appellant's officer that the previous application for charitable status had been rejected because of poor preparation and the respondent's solicitor said that there would be a fresh application. On his inspection, the appellant's officer noted that none of the bedrooms appeared to be locked though he did not test any door to see if it was locked and was not shown into any room occupied by a person who was not then present on the premises.
(g) The hereditament is spacious and well appointed and includes a fully equipped kitchen, a ballroom and garden all being well maintained and furnished like a private house. The ballroom with living accommodation above was contained in a separate building at the rear in what had been once the chancellory of the former embassy. This can be reached by a pathway from the house and has its own separate entrance to a neighbouring street.
(h) The Foreign and Commonwealth Office has a continuing obligation under the Vienna Convention to visit the hereditament every six months or so and Colonel W.P.A. Durrant from the Protocol Department of that Office made visits between May 1982 and September 1986. These viewings were not by appointment and on seven of the eight occasions of viewing, the respondent answered the door personally and conducted Colonel Durrant around the premises; on the eighth viewing the respondent quickly joined Colonel Durrant after he arrived. The respondent on each occasion took Colonel Durrant around the whole hereditament and knew in which room people lived. The activities of the Guild were discussed between Colonel Durrant and the respondent; it was held out to be meditative and of oriental inspiration and one of the main rooms on the ground floor is used as a temple.
A number of persons live at the premises—Colonel Durrant noted about eight on each of his visits—and was told that each contributed a small amount towards the cost of utilities. None of the bedrooms was seen to have cooking or eating facilities and all were viewed at one time or another. Some of the rooms had separate meters. The respondent introduced some residents to Colonel Durrant and they included an accomplished violinist, a carpet weaver and a homeopathic doctor of medicine.
(i) The appellant had served rate demands on the respondent for the periods in question and these demands had not been questioned.
(j) The respondent dealt with the electricity account between 1982 and 1986 and the account was currently in the name of the Guild. On 12th October 1986 the respondent signed an order for work to be done.
(k) The water account was in the name of the respondent and was paid by him until upon request dated 25th October 1984, the account was put into the name of the Guild.
(1) I also had regard to exhibits 1–16 which were produced during the course of the evidence called on behalf of the appellant." That concludes the Magistrate's findings of fact.
Among the documents exhibited and referred to paragraph 2(1) of the exhibits were an application by Mr Tomlin dated 7th November 1976 to London Electricity Board for the supply of electricity for domestic purposes; an application by him dated 11th November 1981 to Thames Water for metered water supplies, together with the necessary money deposit, and a letter of 25th October 1984 from a Mr Richard Arnold, describing himself as Secretary to the Guild of Transcultural Studies, to Thames Water asking them to transfer the water account and supply "as from the last bill paid by Mr D. Tomlin, from this date to the Guild of Transcultural Studies".
A letter from Mr Tomlin to the Water Authority dated 27th March 1985, concerning some sort of rebate, says that his work is taking him from place to place at the moment, but asking that the rebate be sent to 21 Avenue Road "as I will be calling there from time to time". That letter needs to be taken into account when considering paragraphs 2(h) and 2(j) above, of the facts found by the Magistrate concerning the unannounced visits to the premises by Colonel Durrant up to September 1986, and Mr Tomlin's dealings with the electricity supply up to October 1986.
The complaint was laid by the City Council on 1st December 1986. The hearing before the Magistrate was on 11th March 1987. At the conclusion of the evidence called on behalf of the City Council, a submission was made that there was no case to answer. The Magistrate required Mr Tomlin to elect either to call evidence or to rest on his submission. Mr Tomlin chose the latter.
The Magistrate was of the opinion:
(1) That the rate had been duly made, published and demanded of Mr Tomlin for the years 1982–1986 inclusive.
(2) That Mr Tomlin played a leading role in the affairs of the Guild.
(3) That the description in the Valuation list was sufficient to include all the property in the here-ditament.
(4) That there was insufficient evidence of exclusive occupation by Mr Tomlin to raise a burden upon him to respond to the complaint.
The Council appealed by way of Case Stated, There were two questions for the opinion of the High Court:
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(i) whether the Magistrate was correct in finding that there was no sufficient evidence of rateable occupation by Mr Tomlin to raise a burden to respond under Section 97, and
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(ii) whether the Magistrate was correct in law to put Mr Tomlin to his election.
On 29th July 1988 Henry J. answered the first question "No". On the second question he remitted the complaint to the Magistrate to say whether he had ruled in the exercise of his discretion, or as a matter of law. The appeal to this Court is solely on the first question.
Henry J. correctly directed himself on the approach laid down in Ratford and Another v. Northavon District...
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