Part 3: appeals to the upper tribunal

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

Introduction

  1. The Upper Tribunal (Lands Chamber) (UTLC) is the successor to the Lands Tribunal.  It is an independent and specialist judicial body dealing with, among other things, rating appeals from cases heard in the Valuation Tribunals (VT).  The UTLC is part of the Courts and Tribunal Service, the website is here (Upper Tribunal Lands Chamber - Courts and Tribunals Judiciary).
  2. There are strict time limits and UTLC cases must be actively managed.  Cases will require a high standard of professional input.
  3. There will be a "caseworker" who is responsible for the case.  They will represent the Valuation Officer (VO) for the case, either in person or instructed by the statutory VO, and act as the main expert witness where expert evidence is required.  Generally, there will be a separate case manager to assist in the process of running the case and allowing the caseworker to concentrate on settlement and/or preparation for the hearing.
  4. For all cases, the statutory VO should be named as the appellant or respondent and not the caseworker who is allocated the case.
  5. This section deals with the case management of UTLC cases.  It does not cover the requirements of the expert witness or advocate (covered here (Rating Manual Section 7: Part 1: advocate and expert witness roles)).  Any questions on Tribunal case management should be discussed with the Litigation and Technical Policy team within CVG.  (L&TP)

Litigation Settlement Review process

  1. All UTLC cases must be referred to the Litigation Settlement Review Panel (LSRP).
  2. In cases where the VO is the respondent, a referral must be made to the LSRP as soon as it is apparent there is an appeal.  This could be before the formal appeal is received if, for example, the appellant confirms they have appealed a VT decision or sends a copy of the appeal direct to the VO.
  3. Similarly, before initiating an appeal, the VO must seek approval from the LSRP.
  4. As part of the LSRP process, a decision should be made whether to instruct HMRC Solicitors (HMRCS) or to run the case within the VOA.  Generally, cases on simplified procedure will not require HMRCS involvement.
  5. Instructions for the LSRP are found in VOA - Litigation Settlement Review Process.  The L&TP can help in drafting papers for the panel.

HMRC Solicitors

  1. Where HMRCS are to be instructed, a submission must be drafted and sent by the G6 team head.  Instructions for instructing HMRCS are available from the L&TP.

Litigation Register

  1. All Upper Tribunal cases must be registered on the Litigation Register and this is usually undertaken by the CVG support team.  It is the case manager’s responsibility to ensure the case is updated regularly on the Litigation Register with meaningful comments to allow anyone to understand the current state of play of the case.
  2. The litigation register also classifies cases as:
  • CVO - For any central list cases
  • NVU - For all NVU cases - generally on standard procedure and HMRCS will be instructed
  • Unit - Cases retained by Units, usually on simplified procedure
  1. Within the Litigation Register there is a time sheet.  All involved in the case should regularly record their time as this will be used in any cost awards.  It is also useful management information to assess the resource used in litigation.
  2. As part of the process when a case is registered on the Litigation Register, an email is sent to the VT informing them of the appeal.  Local Authority Relationship Managers (LARMs) are also notified by email and they should notify the appropriate BA.
  3. Once a decision has been issued by the Tribunal, the case should be closed on the Litigation register even if the costs have not been resolved.
  4. [redacted internal link]

VOA documents

  1. All UTLC cases should be raised as a "LT" case within RSA.
  2. All working documents for a case should be stored in SharePoint for the case managers team.  The case manager should set up the folder and ensure access is granted to any staff requiring it.
  3. Final versions of all documents and emails should be kept in EDRM.

Authority to act

  1. Where HMRCS are instructed, there is no requirement for an “authority to act” letter.  For simplified procedure cases managed by a staff within the VOA, that case manager must be authorised to act by the statutory valuation officer.
  2. A template of the VO authority to act form are available from the L&TP.

The Upper Tribunal (Lands Chamber) Procedures

  1. It is vital that case managers and caseworkers are fully aware of the up to date rules and instructions for the Tribunal.  The Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 set out the statutory framework for the Tribunal and there is a set of Practice Directions - Upper Tribunal (Lands Chamber) (issued 19 October 2020) which expand on the Rules.  The UTLC rules and the procedure are available from the UTLC website as are the latest fees.
  2. The Practice Directions set out the Tribunal's expectations and must be followed.  It must be noted there are strict time limits and failure to adhere to the time limits may result in a case being struck out.

UTLC Appeal or Response

  1. Regulation 42 of the VT Procedures Regulations allow a 4 week window to appeal VT decisions to the UTLC.  (See The Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 SI 2009/2269.  See also regulation 37 in The Non-Domestic Rating (Alteration of Lists and Appeals) (Wales) Regulations 2005 SI 2005/758) for 2017 and earlier lists and regulation 56 of The Non-Domestic Rating (Alterations of Lists and Appeals) regulations 2023 SI 2023 No 350, for 2023 and later lists.  Appeals outside this period may be accepted, but this cannot be taken for granted.  Any VO appeal must be made within the 4 week period.
  2. A form to make an appeal is available from the UTLC website.  This should be used rather than any other adapted form from a previous case.  There is a fee to make an appeal.  L&TP can advise on how to pay the fee.
  3. A respondent’s notice is included with an appeal from the UTLC and should be used where the VO is Respondent.  Any response must be made within 1 month of the appeal being sent by the UTLC, having first obtained LSRP approval to do so.  In practice, the covering letter from the UTLC with the appeal will contain the deadline for the respondent’s Notice of Intention to Respond [NOITR].

Lodging Documents

  1. It is now mandatory to lodge documents with the Upper Tribunal (Lands Chamber) via their electronic portal here (E-Filing - Login (cefile-app.com)). Guidance notes for how to use this application can be found here.

Tribunal Procedures

  1. Once the Tribunal has received the appeal and the response, it will contact the parties indicating which of the 4 procedures will be adopted.  These are set out in the Practice Directions and are:
  • the standard procedure
  • the simplified procedure
  • the special procedure
  • the written representations procedure
  1. The Practice Directions set out the procedures and the Tribunal's expectations from the parties.

Interlocutory orders

  1. An interlocutory order, or colloquially a “direction”, may be sought for a variety of reasons, such as an extension of time, a request for disclosure or service of documents.  Any requests for interlocutory orders should be made as soon as possible and not left to the last moment before a deadline.  There is no standard form and the case manager can assist in its drafting.  A fee is payable.  For advice on how the make a payment, contact the L&TP.  The legal budget manager in CVG must be notified by sending an email to the Litigation Team inbox with "UT Fees" in the title line.
  2. Historically the Tribunal was likely to grant an extension of time if requested.  This is no longer the case and, unless there is a very good reason, it is unlikely an extension will be granted.  Should either party request an extension, it is likely the UTLC will arrange for a case management hearing prior to making a decision.  Parties cannot expect to be given an extension of time.
  3. The Tribunal sets out its expectations for directions in Section 4 of the Practice Directions.  The Tribunal expects the parties to have discussed and agreed any directions and sets out the requirements.  It should be noted there will probably be a case management hearing.
  4. HMRCS will deal with any directions if they have been instructed.

Statement of case

  1. The statement of case should be sent with the appeal or response.
  2. The requirements for a statement of case are set out in Section 5 of the Practice Directions.  It must summarise the issues to be resolved, the party’s contentions and the evidence in support, together with any legal argument.  It is not expected to be a lengthy document and should only summarise any evidence.  This is not an expert witness report.

Disclosure of documents

  1. The Tribunal sets out its expectations for the disclosure of documents in Section 6 of the Practice Directions.  It states: "The duty of all parties to cooperate with each other and with the Tribunal to ensure that cases are disposed of as quickly and cheaply as possible is particularly important in relation to disclosure."
  2. If the other party is failing to provide documents or, indeed, producing unnecessary and irrelevant documents, a direction can be sought from the Tribunal.

Expert Evidence

  1. The VO expert witness for a case should receive written instructions on their role and the scope of the expert report.  These can be drafted and issued by the case manager.
  2. The Tribunal sets out its expectations for expert evidence in Section 18 of the Practice Directions.  This section has significantly changed from the previous Practice Directions.  Experts cannot also act as an advocate except in simplified procedure cases.  It is vital VO experts complies with the requirements of the Statement of Truth and does not alter the wording.
  3. The VO expert witness must also comply with any requirements from their professional body.  For the Royal Institution of Chartered Surveyors (RICS), this will be the current Expert Witness Practice Statement which is available on the RICS website.  It is understood members of the Institute of Revenues, Rating and Valuation adopt the same RICS Practice Statement.
  4. Experts are expected to communicate, (Para 18.7 onwards).  Case managers should encourage the caseworker to follow this process.  The requirements for an expert's report are set out and case managers should ensure caseworkers are aware of the requirements and follow them (Para 18.15 onwards).
  5. Prior to writing their report the expert witness must agree facts and issues with the expert witness for the other side, covered in 18.9.
  6. A party may put written questions to an expert to clarify their views.  This is covered in para 18.22 onwards.
  7. An expert's fee is specifically covered in para 18.27.  It states "An expert who is to be paid on a contingency basis may not give evidence."  While not an issue for the VO, case managers should be aware of this and discuss any suspicions of contingency fees with the head of L&TP.
  8. The deadlines for serving the expert's report will depend on the procedure allocated to the appeal.  For simplified procedure case, the expert's report is generally served 14 days before the hearing.  For other procedures, the Tribunal will issue directions giving the dates for various actions.

Hearing Bundles

  1. The Tribunal expects the appellant to prepare a hearing bundle and the parties must cooperate.  Para 19.2 onwards sets out the requirements.  It should be noted that the respondent may produce the bundle if the appellant is unrepresented so this should be considered for all simplified procedure cases.
  2. Where HMRCS are instructed, they will co-ordinate with the other party regarding the bundle.

Offers to settle

  1. Following a review of the case, it may be appropriate to make a formal offer to settle the case.  Often referred to as a "Calderbank offer" this represents a figure a party will accept at the stage it is made and can be used to protect against costs.  The Tribunal covers offers to settle at para 24.15 onwards.  Any offer to settle must be approved by the LSRP and sent by HMRCS.
  2. For simplified procedure cases where costs are generally not awarded, a without prejudice offer to settle can be made, but only once it has been agreed with relevant VO.  It is suggested an RV loss report is a suitable way to record this.

Withdrawal of a case

  1. An appellant may withdraw their appeal but, if the respondent is seeking settlement at a different figure to that decided by the VT, both parties must agree (see para 11.9).  The Tribunal will decide how to proceed and may hold a case management hearing.

Costs

  1. In simplified procedure cases, costs are generally not awarded.  In other cases, HMRCS will draft submissions on costs once the decision is issued.
  2. Case managers must ensure the time sheets in the Litigation Register are kept up to date for all cases.  Even for simplified procedure cases, the time spent is useful management information to evaluate the resource used in litigation.