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THE COST OF GOING TO A TRIBUNAL (or “Make sure the Hand in your Pocket is your Own”)

AN ARTICLE by Peter Scrafton FIRRV, FCIArb, MRSA(Hon) Solicitor (Non-Practising)

April 2012.

This time, my warning is about a flanking manoeuvre, which is likely to cost money to you and yours.

Those of you who read the professional websites may have noticed the recent joint paper to the Senior President of Tribunals, Lord Justice (Sir Robert) Carnwath following the publication of a report to him, last December, by the Costs Review Group (“CRG”), entitled “Costs in Tribunals” which is said to be designed to promote access to justice in the world of tribunals, following the Jackson Report on costs in civil proceedings, published two years previously.

There has been (as yet) no public consultation; but, although this may take place, but the report accepts (at para.5) that, as far as costs in taxation proceedings are concerned, the views expressed to them:-

……. do no more than express again the various views previously expressed in the context of the Tax Appeals Modernisation Programme where radically different, and irreconcilable, views had been expressed.

Some people, you see, adhere to the quaint, old-fashioned view, that if the citizen wishes to object to the level of a tax imposed upon him, and has to take his complaint against the actions of state officials to a tribunal run by the state, then he should not have to pay a fee for the privilege, other than to a professional adviser, should he choose to employ one. This seems to have been a long-established principle; and it is also one which CRG does not seek to disturb in connection with the Valuation Tribunal for Wales, because the poor, benighted Welsh have decided that they want to retain a valuation tribunal of local people (with training) hearing local cases, locally, and providing a service free at the point of delivery. Quite how this squares with the Localism Act I hope someone will write to the Editor and tell us.

The Treasury, you see, takes a contrary view and insists that users should pay for everything – which could be quite profitable if the policy wonks at HMRC and DCLG decide to increase all tax and rating assessments by, say 50% and then either collect from those who do not object, or charge costs and fees to those who have the temerity to challenge their bills. Good wheeze, that!

For, as we know, English Valuation Tribunals, in pursuit of the “One Size Fits All” principle of the Localism Act, are headed for amalgamation with the Courts and Tribunals Service, as a First Tier Tribunal, alongside the Residential Property Tribunal Service, which already has a (very limited) power to make orders for costs. Bear in mind, though, what the CRG say (at their para.23):-

“……the position as regards costs is governed by section 29 of the (Tribunals Courts and Enforcement Act 2007) and the relevant Tribunal Procedure Rules. Section 29 gives the Tribunals the widest of powers. Section 29(1) provides that the costs of and incidental to all proceedings…..are at the discretion of the tribunal in which the proceedings take place. And section 29(2) provides that the relevant tribunal has full power to determine by whom and to what extent the costs are to be paid. An express power is conferred by section 29(4) to make wasted costs orders. We say more about the interrelation between section 29(1) and section 29(4), in particular whether the power under section 29(4) can be qualified by the Rules, later in this Report.”

Note, also, what CRG say about costs in tax cases at their paragraphs 52 to 56. Could this be the intended route for costs in English Valuation Tribunals? Would any burden be limited to sanction unreasonable conduct? Professor Zellick advocates a maximum order of £250; RPT can go up to £5,000: CRG proposes an unlimited power.

There is far more to discuss, here, than space will permit – but, before signing off let me just mention the matter of tribunal fees, which are also reviewed, from time to time. Readers should be aware that there has recently been a consultation on increases in fees for use of the High Court and the Court of Appeal, in some cases by a factor of six. Responses raising cries of denial of access to justice will probably fall on deaf Treasury ears (after all, the County Courts are running at an operating profit, aren’t they, so why not everything else?) Why mention this here? Because, historically, every time Court fees have been increased, tribunal fees have followed, rapidly (purely to keep them in line, of course).

This little piece cannot cover the potentially ameliorating proposals for the Upper Tribunal; but perhaps the Council Taxpayer and the small ratepayer will find enough to persuade them, finally, to abandon hope and pay what the VOA computer tells them to – without protest.


Peter Scrafton

©J.P. Scrafton, 2012

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