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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Jafton Properties Ltd, R (on the application of) v Lands Tribunal [2000] EWHC Admin 384 (31 July 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/384.html
Cite as: [2000] EWHC Admin 384

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QUEEN and LANDS TRIBUNAL Ex Parte JAFTON PROPERTIES LIMITED. [2000] EWHC Admin 384 (31st July, 2000)


CO/1199/1999

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:31st July 2000
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

B e f o r e :
THE HON MR JUSTICE LANGLEY


Between:


THE QUEEN
and
THE LANDS TRIBUNAL
Ex Parte JAFTON PROPERTIES LIMITED.

Respondent
Applicant








- - - - - -
(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
- - - - - -


Mr D. Mole QC(instructed by The Solicitor of Inland Revenue for the Valuation Officer)
MS. C. Lockhard (for judgment)
Mr J. Taylor QC and Mr R. Wald (instructed by Messrs Gouldens for the Applicant)
JUDGMENT
(As Approved by the Court)
INTRODUCTION

This application concerns the taxation of the costs of a hearing in the Lands Tribunal. The applicants, Jafton Properties Limited (JPL) were awarded one-quarter of the costs of the hearing in which they achieved "limited success". Thereafter the costs were taxed before the Registrar. JPL sought to challenge the taxation. The Registrar decided and the President upheld his decision that the challenge was out of time under Rule 52 of the Lands Tribunal Rules 1996 ("the Rules") and that it was not appropriate to extend time under Rule 35. JPL contends that it was not out of time or if it was an extension should have been granted.
THE RULES

Before turning to the chronology of events I should set out the relevant Rules in order that those events can be seen in context.
Rule 52 provides that:
(1) ... the costs of and incidental to any proceedings shall be in the discretion of the tribunal.
(2) The Registrar may make an order as to costs in respect of any application or proceedings heard by him.
(3) A person dissatisfied with the order of the registrar under paragraph (2) may, within 10 days of the order, appeal to the President who may make such order as to the payment of costs, including the costs of the appeal, as he thinks fit.
(4) If the Tribunal directs that the costs of a party to the proceedings be paid by another party it may settle the amount of costs by fixing a lump sum or direct that the costs be taxed by the registrar on such basis as the Tribunal thinks fit, being a basis that would be applied on a taxation of the costs of High Court or County Court proceedings.
(5) A party dissatisfied with a taxation of costs under paragraph (4) may, within 7 days of the taxation, serve on any other interested party and on the registrar written objection specifying the items objected to and applying for the taxation to be reviewed in respect of those items.
(6) Upon such application the registrar shall review the taxation of the items objected to and shall state in writing the reasons for his decision.
(7) A person dissatisfied with the decision of the registrar under paragraph (6),may within 10 days of the decision, apply to the President to review the taxation and the President may make such order as he thinks fit including an order as to the costs of the review.
(8) ...
Rule 35 provides that:
35. Extension of time
(1) The time appointed by or under these Rules for doing any act or taking any steps in connection with any proceedings may be extended on application to the registrar under rule 38.
(2) The registrar may extend the time limit on such terms as he thinks fit and may order an extension even if the application is not made until after the time limit has expired.
CHRONOLOGY

On November 14 1996 (amended on November 21) the Tribunal made an order in respect of certain earlier substantive appeals by JPL that the respondent valuation officer to the appeals
shall pay one-quarter of the Appellant's costs of , and incidental to, the hearing of the substantive issues in November 1995.
All costs, if not agreed, are to be taxed by the Registrar of the Lands Tribunal on the High Court standard basis.
There followed a claim by JPL for costs and objections on behalf of the valuation officer. Lawyers Financial Management (LFM) a firm of costs draughtsmen engaged by JPL, lodged the Bill of Costs with the Lands Tribunal on December 17, 1997.
A Costs Hearing took place before the Registrar on April 24, 1998. To quote paragraph 4 of JPL's "Grounds" in support of the present application:
At this hearing, the Registrar assessed sums to be paid by the valuation officer pursuant to the order of 14 November 1996, including costs incurred by the applicant in respect of its representation at the hearing of 24th April 1998.
It is the Respondent's primary case that time for objections to be made to the taxation under Rule 52(5) ran from April 24, 1998. The amount of costs allowed (at 100%) was £304,953.86 and the costs of taxation (at 100% and including VAT) were allowed in a sum of £4282.87.
There followed a number of disputes. First there was a dispute whether the costs of the taxation itself were to be borne entirely by the valuation officer or only as to one-quarter under the terms of the original November 1996 order made by the Lands Tribunal. That dispute was the subject of submissions to the Registrar made by letters in May and June 1998. By letter dated June 15 the parties were notified of the Registrar's decision that "the costs of taxation are part of the total costs in these appeals and are subject to the costs order that has been made."
That drew a response from LFM dated June 22 in which they said the position was "still not entirely clear" and asked for confirmation of the actual sum for the costs of taxation which the Registrar had allowed and raised the further question whether the taxing fee payable (at 5%) should be based on the amount allowed (25%) on taxation or on 100% of the costs taxed. The letter stated:
"Until these matters are dealt with, the taxation is not, and cannot be concluded".
On July 7 the Tribunal wrote stating the costs of taxation allowed were £3645 (exclusive of VAT) and that "exceptionally" the Registrar was prepared to agree that the taxing fee should be calculated on the 25% of the total bill to be paid by the valuation officer. It is the Respondent's secondary case that time for objections to the taxation under Rule 52(5) ran from July 7. LFM responded with their understanding of the overall figures to which this gave rise which, subject to them being accurately quoted, the Registrar agreed in a letter dated July 17, 1998. This letter was received by LFM on July 20.
It is JPL's case that it was only at this date that the taxation was completed and the 7 day time-limit under Rule 52(5) started to run for service of objections to the taxation. Objections were served on July 27, 5 working days after July 20. They were objections to the taxation of three specific items in the Bill of Costs (rates, hours and one disallowed item for the costs of evidence which the Tribunal had rejected) and to the allowance of only 25% of the costs of taxation and the taxing fee.
The Registrar replied on July 31:
The Registrar directed that as this Bill was taxed on 24 April 1998 your objections are about 3 months out of date. In the circumstances the Registrar is not prepared to review the taxation in the above matter.
This decision was confirmed by letter dated August 24. JPL sought a reference of the matter to the President of the Lands Tribunal as it was entitled to do under Rule 38 of the Rules. That led to an oral hearing on February 1, 1999 at which JPL was represented by Mr Taylor QC. The President upheld the Registrar's decision. LFM asked for written reasons for this decision which were supplied in a letter dated February 16. In summary, the reasons were that:
(1) "Whether or not the taxation was incomplete" because "questions about the costs of taxation itself, subsequently raised, were left outstanding" the Bill of Costs was fully taxed on April 24, 1998 and constituted a taxation for the purpose of Rule 52(5) so that any objections to it had to be served within 7 days of April 24.
(2) The costs (£3645 exclusive of VAT) of the taxation had also been determined on April 24 and the valuation officer's obligation to pay 25% of that sum was a consequence of the orders made in November 1996.
(3) The decision on the taxing fee payable was made in the letter of July 7, and in any event was no part of the taxation itself.
(4) As regards discretion to extend time the objections were made almost 3 months late and "having considered your representations" there was no justification for extending the time to make objections.
THE APPLICATION

The Application for judicial review of the President's decision was made on March 19, 1999 and permission was granted by Burton J on April 4, 1999.
Three grounds were advanced in support of the Application, namely that:
(1) Rule 52(5) was complied with as the taxation was not completed on April 24, 1998 but only on July 20.
(2) The refusal of an extension of time was "irrational" because of the "shared assumption" of the parties that "the resolution of certain matters of taxation remained ongoing".
(3) The reasons given for the refusal of an extension were "irrational" because by the reference in the letter dated February 16, 1999 (which I have set out) to "whether or not the taxation was incomplete" the Respondent had acknowledged that there were separate aspects of the taxation remaining to be resolved.
CONCLUSIONS
(1) HAD TIME EXPIRED?

In my judgment the first question to which this Application gives rise is whether or not on April 24, 1998 there was a "taxation of costs" within the meaning of Rule 52(5). I do not find it helpful to express the question in terms of whether a taxation was then "completed" or "concluded" or a certificate of taxation was or could then have been issued or whether the Registrar was "functus officio" which were all expressions which Mr Taylor sought to deploy in submission. The words of the Rule itself are intelligible and applicable as they stand. Moreover I think there can realistically only be one answer to the question which does arise which is "Yes". There is no doubt on the evidence that on April 24 the Registrar taxed JPL's Bill of Costs for the substantive proceedings and the costs of the taxation itself in accordance with the Tribunal's order. Taxation (on the standard basis) involved the assessment and allowance of a reasonable amount in respect of all costs reasonably incurred by JPL in the proceedings. That is precisely what the Registrar did. Neither party sought an adjournment of the taxation. It ended with assessment of the relevant figures.
Moreover there was no issue then before the Registrar as to how the November orders were to be applied to the costs of the taxation itself nor as to the taxing fee payable, no doubt because (rightly in my judgment) those were not seen to be matters for assessment on the taxation. Indeed the taxing fee can only be determined after the taxation as it is a fixed percentage of the sum taxed; and the only issue on the costs of the taxation was one of the effect of the November orders not as to the taxed amount of the costs.
In my judgment, therefore, the objections were considerably out of time when they were first put forward on July 27. They should have been submitted no later than May 1 (7 days after April 24) to comply with Rule 52(5), and the President was right so to conclude.
(2) SHOULD TIME HAVE BEEN EXTENDED?

Whilst it can be said that the reasons the President gave in the letter of February 16 for refusing an extension of time were succinctly stated I see no reason to doubt that he had, as recorded, considered the representations made on behalf of JPL. In particular it was accepted that the valuation officer had not suffered any specific prejudice from the delay and that during the period of delay the questions about the costs of the taxation and the fee had been under debate.
The question for this court is not whether it would have reached the same decision as the President but whether the decision that he reached was "Wednesbury unreasonable". The basis of the decision as expressed was that against a statutory short time limit (7 days) there had been a delay of nearly 3 months in which the major objections sought to be made to the taxation had not even been raised whereas other matters had been raised and debated. It is also material to the exercise of discretion in my judgment that the consequence of a refusal of an extension was not to prevent JPL recovering any costs but only from arguing that the actual amount should be increased. That is in contrast to the cases cited by Mr Taylor of Southwark London Borough Council v Nejad TLR January 28, 1999 page 68 and Toniello v Top Deck Ski Ltd TLR 7th December 1998 page 777. It will also often be the case that a non-objecting party will suffer no specific prejudice from a delay in service of written objections but that is no more than a factor in the exercise of discretion, and a factor to be weighed against all the other factors including the deliberate provision of a short time limit and the length of the delay.
In my judgment there is no realistic basis for an attack on the rationality (or indeed 'fairness' in Mr Taylor's alternative way of expressing the issue) of the President's decision.
I should perhaps record that Mr Taylor (entirely rightly in my judgment) did not press the submissions that there was "a shared assumption" that the taxation was incomplete or that the President had acknowledged as much. As JPL did not make any of the objections to the taxation it now seeks to pursue until after the 'assumption' is said to have arisen no assumption could have applied to them. The President's letter, read as a whole, plainly contained no acknowledgement.
In these circumstances, in my judgment, and as I indicated at the conclusion of the hearing, this Application must be refused and I will if necessary hear the parties on any consequential orders they may seek.
Order: Application dismissed with costs agreed at £5,000.b

© 2000 Crown Copyright

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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/384.html