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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Smillie, R (on the application of) v Southend-On-Sea Borough Council [2002] EWCA Civ 633 (2 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/633.html Cite as: [2002] EWCA Civ 633

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Hooper)

		Royal Courts of Justice Strand London WC2 Thursday, 2nd May 2002

1. LORD JUSTICE SEDLEY:Mrs Smillie comes before the court in person seeking permission to appeal against Mr Justice Hooper's refusal, in her absence on 12th October 2001, to adjourn her renewed application for permission to apply for judicial review. Mr Justice Munby had refused permission on sight of the papers, giving his reasons. They were, in essence, that Mrs Smillie's complaint that Southend-on-Sea Borough Council has acted unlawfully in switching from deductions from her benefits to a statutory demand was unarguable because the evidence disclosed a perfectly lawful exercise of the Council's legal powers.
2. Mrs Smillie tells me today that the reason she did not appear before Mr Justice Hooper on 12th October (that being already an adjournment date because of a previous delay) was that the night before she had received from the Council a letter indicating that her appeal against an aspect of her liability was still not determined. She found herself in difficulties in faxing that material to the court in time for it to be adduced in support of her application (albeit made in her own absence) for an adjournment, and that was why Mr Justice Hooper did not have the material which she submits ought to have led him to adjourn her application.
3. As I have indicated, the judicial review proceedings which Mrs Smillie wants to bring relate to the Council's decision to stop deducting by instalments from her pension several thousand pounds of unpaid rates, community charge and council tax, and instead to proceed by way of statutory demand. The names of the debts indicate how ancient they are. A statutory demand, of course, can lead to bankruptcy proceedings and Mrs Smillie pleads in her application that she is an old age pensioner on income support. So she may be, but she has also until recently been a property owner with three adjacent houses to her name. She tells me today that they are no longer hers; that they have been taken by way of statutory charge, so that she has no cash sum in substitution for them. But the statutory charge, it appears, was in favour of members of her own family, and it is to them that the property has gone. Mrs Smillie is also an experienced litigant. She has been before this court on three occasions in the years 2000 and 2001 in relation to possession proceedings brought by a bank and, before that, in 1998 she was involved in an application for permission to seek judicial review of a decision of the Registered Homes Tribunal. I mention these things because they are known to the court and they do indicate that Mrs Smillie ought by now to know what is necessary and appropriate in conducting proceedings.
4. The three properties with which the present application is concerned are Nos. 19, 21 and 21A Vincent Road. She bought them in the early 1980s. She has been in dispute with the Council for many years about her liability to local tax in respect of these properties, much of the dispute hinging upon whether they amount to one, two or three units. In the course of eight years, 1993 to 2001, 18 liability orders were obtained against her in the magistrates' court in respect of unpaid fiscal liabilities. During that period Mrs Smillie went on to income support. More recently, in 1999, she has begun to receive a State pension. It is now a good many years since the liabilities were made subject to a payment order by deduction from her benefits. One sum was finally repaid by this means, but further repayment from her benefits and State pension was then obtained by the Council at a rate which would have required more than 20 years to complete payment of the debts. It is for this reason that the Council has sought to switch to a statutory demand. The debts, as at the end of April 2001, were just under £8,500, according to the totality of liability orders. Some of that seems to have been repaid since, but a substantial amount remains outstanding.
5. The negotiations with the Council about exemptions and about the correct taxable units have gone to and fro. The Council has not been intransigent. One exemption from council tax was agreed and backdated. But the decisions about the taxable units are not a matter for this court and never have been. Mrs Smillie has helpfully put before me today a recent decision of the Essex South Valuation Tribunal dated 7th February 2002 concerning a decision of the listing officer that a proposal entered by Mrs Smillie was invalid. The tribunal, in a carefully reasoned decision, upholds that conclusion, not for the officer's reason that it was out of time, but for the rather more fundamental reason that the issue had already been determined against Mrs Smillie in 1996. The tribunal, however, go on helpfully to suggest that Mrs Smillie can make separate proposals which would enable her to challenge the initial views of the listing officer if she wishes. All of these things may be material to Mrs Smillie's position, but they are not material to the court.
6. What Mrs Smillie now wants to do is, first of all, to have an extension of time; but that is the one thing she does not need because she has applied in time. Secondly, she wants to have permission to appeal against Mr Justice Hooper's refusal of an adjournment and his consequent refusal of her application for permission to seek judicial review, together with an order that she pay £1,900 costs which in the judge's view had been unnecessarily run up by Southend in the face of Mrs Smillie's procrastinations.
7. Mrs Smillie urges upon me today that the re-assessment issue and the statutory demand are intimately linked in that, if the properties fall to be re-assessed, then the statutory demand will be void. This I do not accept, and it is certainly not part of the extant judicial review application. The statutory demand is based upon an assessment which is extant and is lawful, even if at some future date it is altered by administrative procedure. If it is altered, then of course the statutory demand will fall to be adjusted as well, but it will not be void.
8. This is the third occasion on which Mrs Smillie's present application has been listed before me. On Wednesday 20th March the case was called on. It was called on at ten o'clock in the morning. Mrs Smillie did not appear and I gave judgment in her absence dismissing her application. Mrs Smillie communicated with the court office, and it appeared that she might well have been told that the hearing was at 10.30am and for that reason had arrived late. Accepting this, the court office re-listed the case for Wednesday 27th March and sent Mrs Smillie notice of that appointment together with her fare, because it was accepted that it was the court's error that had led to the missed appointment. Mrs Smillie tells me that she received neither of those things. We have been through the question of her address, and the court appears to have had her recently changed address and to have written to her correctly; but Mrs Smillie did not appear on 27th March. I again gave judgment against her, adopting what I had said on the previous occasion but treating that previous decision as vacated. Today she comes before me again in the circumstances I have described. I will give her the benefit of the growing doubt and accept that she had no notice of the hearing of 27th March; so that slate will be wiped clean as well. I approach the application today afresh, having for the first time now heard Mrs Smillie's submissions in person.
9. Having heard them, however, I am entirely unpersuaded that this is an appropriate case for the grant of permission to appeal against Mr Justice Hooper's decision. On the contrary, it seems to me that his decision was inexorably the right one in the circumstances and that, even if he had known what Mrs Smillie now tells me had happened the evening before, he would still have acted as he did. The first adjournment which Mrs Smillie had obtained from the Administrative Court was, I think, a piece of good fortune on her part and I can see no basis on which Mr Justice Hooper could have been expected to give her a second one. It was within the local authority's own procedures that she should have sought her further recourse. Their pendency did not affect the judicial review proceedings which she was seeking to bring and she ought to have been in court on 12th October to pursue her application. In those circumstances I see no reason for granting permission to appeal and I refuse Mrs Smillie's application.
10. I wish also to say this. This is, in my view, the last chapter in a very long novel indeed. My remarks will be transcribed at public expense, not only for Mrs Smillie's benefit, but for that of Southend-on-Sea Borough Council, to whom a copy is to be sent.
Order: application for permission to appeal dismissed; transcript of judgment to be supplied to both parties at public expense.