Rating Manual section 8: litigation

Part 7: judicial review in the Valuation Office Agency

The Valuation Office Agency's (VOA) technical manual for the rating of business (non-domestic) property.

1. Description

Judicial review is a High Court proceeding in which a judge reviews the lawfulness of a decision made or action taken (or a failure to take action) by a public body.

It is a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.

Judicial review may be used where there is no right of appeal or where all avenues of appeal have been exhausted and it also allows individuals or groups to challenge in court the way that Ministers, Government Departments and other public bodies make decisions.

Appendix 1 sets out sources of further detailed information concerning the Judicial Review process and the broader Civil Service policy guidance in respect of it.

NB: Time is of the essence in all cases.

2. General

A Judicial Review may be sought on any aspect of Valuation Office Agency work.

In local taxation cases the relevant notice might be served upon Group Valuation Officers/Listing Officers in their statutory capacity relating to Rating or Valuation Lists. Similarly, the GVO may be involved in a case where a notice has been served upon the Lands Tribunal, a local valuation tribunal or the rating authority.

In revenue cases it is unusual for individual caseworkers to be a direct party, but they may be drawn into proceedings because of valuations that have been supplied to HMRC.

In work for other public sector clients, particularly Right-to-Buy cases, individual caseworkers might be served with a notice. There may also be involvement where a notice has been served on the client for whom we have supplied a valuation.

These examples are not exhaustive and all caseworkers, Team Leaders, Group Valuation Officers and Sector Heads should be vigilant to identify cases in which they may be involved.

In the ordinary course of events, formal papers relating to Judicial Review are unmistakeable. However, it is sometimes possible that the official procedures may have been overlooked and correspondence relating to Judicial Review may be contained in seemingly ordinary letters. This is especially so when a Judicial Review is initiated by a lay person, without legal representation, and the proper rules of service may not have been followed. Indeed, the process may be well advanced before any VOA staff become aware of the request in these circumstances and, improbable as it may seem, it not unknown for the existence of Judicial Review initiated by a lay person to be discovered almost by accident.

No matter how it first comes to the attention of VOA staff, immediate action is always required when initial Judicial Review correspondence is received. Receipt of such correspondence means that the process is already under way and, as a consequence, TIME IS OF THE ESSENCE.

The differing processes to be followed for each VOA business stream are set out in paragraph 6 below.

3. Application for Judicial Review

An application for Judicial Review cannot be made in England and Wales without first obtaining leave of the High Court. Leave to seek a Judicial Review is made by individual application (formerly called an ex parte application). Strictly speaking, there is a procedure to notify any other affected parties that an application is about to be made and, subsequently, has been made. However, especially if the applicant is acting in person and without representation, it is possible that these requirements are overlooked. In such circumstances, the Valuation Office Agency may well have no knowledge that an application for Judicial Review is being made.

If leave is granted, the applicant then has to serve a copy of the claim form (sealed by the court), together with any accompanying documents, on the defendant and any person the applicant considers to be an interested party (unless the court directs otherwise) within 7 days of the date of issue, i.e. the date shown on the court seal.

Strictly, this should be served on the Solicitor for HM Revenue & Customs, as the proper person to accept such service on behalf of the Valuation Office Agency. This is not always the case and these notices may arrive by the ordinary post in local offices, especially if the applicant is unrepresented.

4. Time limits

Once the Claim Form has been served, the recipient has 21 DAYS to issue an “acknowledgement of service”. This sets out a summary of the grounds for contesting the claim and the name and address of any other person considered to be an interested party and who may not previously have been identified.

The acknowledgement of service must be served upon the applicant and the interested parties no later than 7 days after it is filed with the court.

Since the time limits are so short, it is vital that immediate action is taken at all stages when it is discovered that Judicial Review proceedings have been launched.

5. Costs and time recording

It can be perfectly proper for the Valuation Office Agency to seek costs against an applicant where it can be shown that there is no just cause for seeking the Judicial Review or that a remedy lies elsewhere. Hence a costs diary, recording individual time spent by the various staff grades working on the case, will need to be kept.

Conversely, it is important in situations where the ratepayer/taxpayer/claimant has a good case which the Valuation Office Agency is likely to be advised to concede, that the time taken to reach such a conclusion is minimised in order to avoid the payment of costs.

It has been established that an applicant for Judicial Review is not entitled to costs in certain circumstances - particularly where review proceedings are launched against the Valuation Office Agency, without warning, where there has been no previous undue delay on the part of the Valuation Office Agency and the matter is then settled promptly without the application having to go to a hearing.

6. Procedure

All location taxation cases

For rating or council tax matters, if a Group Valuation Officer/Listing Officer, team leader or caseworker is served with a Judicial Review Claim Form or becomes aware of possible involvement in Judicial Review proceedings (i.e. the notification is not through the HMRC Solicitor’s Office), initial advice must be sought by e-mail from the Technical Adviser, WITHOUT DELAY.

This request for advice should also set out a simple background to the case and the probable reasons behind the request for the Judicial Review.

If not already involved, a copy of this request should always be sent to the Group Valuation Officer/Listing Officer.

The Technical Adviser will then make suitable arrangements with the appropriate specialist in the Professional Services Directorate regarding the scope and supply of information required to defend the Valuation Office Agency position and to ensure that legal representation by HMRC Solicitor’s Office is arranged without delay. In this latter respect, an early warning brief by e-mail to HMRC Solicitor from the Technical Adviser will be required.

In the meantime, and without waiting for detailed advice from the Technical Adviser, the local taxation business unit should start to prepare a more detailed report of the background and circumstances leading up to the request for a Judicial Review and to assemble a bundle of key documents. The report will need to set out the history of the case, clearly state the facts and establish the matters at issue that give rise to the action, together with any other relevant material and a view on the merits of the case. Throughout, the original papers from both the Court and the applicant should remain as unmarked as reasonably practicable, with photocopies used as “working” documents.

Once the chain of command is established (and this will differ from case to case), the HMRC Solicitor will take the lead and set out what is required from whom and when it is needed. It cannot be stressed enough, that time is of the essence, especially in the early stages of a Judicial Review.

All HMRC cases

For all HMRC matters, if the Sector Head, a team leader or caseworker is served with a Judicial Review Claim Form or becomes aware of possible involvement in Judicial Review proceedings (i.e. the notification is not through the HMRC Solicitor’s Office), initial advice should be sought by e-mail from the appropriate specialist in the DVS Professional Policy Team, WITHOUT DELAY.

This request for advice should also set out a simple background to the case and the probable reasons behind the request for the Judicial Review.

If not already involved, a copy of this request should always be sent to the Sector Head and team leader.

Suitable arrangements regarding the scope and supply of information required to defend the Valuation Office Agency position and to ensure that legal representation by HMRC Solicitor’s Office will then be arranged without delay. In this latter respect, an early warning brief by e-mail to HMRC Solicitor from the DVS Professional Policy Team will be required.

In the meantime, and without waiting for detailed advice from the DVS Professional Policy Team, the team leader should start to prepare a more detailed report of the background and circumstances leading up to the request for a Judicial Review and to assemble a bundle of key documents. The report will need to set out the history of the case, clearly state the facts and establish the matters at issue that give rise to the action, together with any other relevant material and a view on the merits of the case. Throughout, the original papers from both the Court and the applicant should remain as unmarked as reasonably practicable, with photocopies used as “working” documents.

Once the chain of command is established (and this may differ from case to case), the HMRC Solicitor will take the lead and set out what is required from whom and when it is needed. It cannot be stressed enough, that time is of the essence, especially in the early stages of a Judicial Review.

Commercial Services and some National and Central Services cases

In many CS and NCS cases, it is likely that the client’s own solicitor will be handling the case and that notice will have been properly served upon them. Accordingly, instruction on the requisite action to be taken by Valuation Office Agency staff, on terms that will need to be agreed, will come from them. Advice then should be sought IMMEDIATELY in all cases from the DVS Professional Policy Team, copied to the team leader and Sector Head.

In the unusual event that the Notice has been served on a member of the Valuation Office Agency staff, initial advice should be sought by e-mail from the appropriate specialist in the DVS Professional Policy Team, WITHOUT DELAY. If not already involved, a copy of this request should always be sent to the Sector Head and team leader. This request for advice should also set out a simple background to the case and the probable reasons behind the request for the Judicial Review.

7. Application by Valuation Office Agency for Judicial Review

If a Valuation Office Agency Unit Head considers that Judicial Review is the only remedy open in any particular case, it must be remembered that Rule 4 of Order 53 of the Rules of the Supreme Court provides that an application for Judicial Review shall be made promptly and in any event within three months from the date when grounds for the application first arose, unless the Court considers there is good reason for extending the period within which the application shall be made.

If, therefore, in any proceedings (at a hearing before a local valuation tribunal, for example) grounds for bringing an action for Judicial Review are perceived, the three months period would start at that time and not when the decision is given. Moreover, the application is required to be made promptly and within three months, so any unnecessary delay could be fatal to the process, even though the three-month deadline is met. Approval should be sought by a written submission, sent by e-mail, to the Unit Head/Team Leader of the appropriate specialist team in the relevant Directorate.

Suitable consultation will take place within the relevant Directorate and the Deputy Chief Executive will be included in these deliberations. If it is thought appropriate to seek to apply for Judicial Review, confirmatory advice should be sought from the HMRC Solicitor (in the usual way), prior to issuing a formal instruction to act.

Appendix 1

To further a broad appreciation of the Judicial Review process and the Civil Service policy considerations in respect of it, the Government Legal Service have produced a 46-page booklet:

The Judge Over Your Shoulder

The Treasury Solicitor - Edition 4 - published January 2006

http://www.tsol.gov.uk/Publications/Scheme_Publications/judge.pdf

In similar vein, is the following:

Judicial Review: A Short Guide to Claims in the Administrative Court

House of Commons Library Research Paper 06/44 - published 28 September 2006

www.parliament.uk/commons/lib/research/rp2006/rp06-044.pdf

The administrative and technical aspects of actually seeking a Judicial Review, and responding to one, are set out in:

Administrative Court Guidance - Notes for Guidance on Applying for Judicial Review

Her Majesty’s Court Service - published January 2005

http://www.hmcourts-service.gov.uk/cms/1220.html