Vincent & Beatty LLP recently appeared in the Court of Appeal on behalf of Stanberry Investments Limited (“Stanberry”), the owner of the Brown Thomas Car Park on Clarendon Street, Dublin 2.
This matter concerned Stanberry’s initial appeal from the decision of the Valuation Tribunal (“the Tribunal”) regarding the commercial rates affixed to its car park, as well as the subsequent High Court proceedings arising from the Commissioner’s decision.
Facts of the Case
The case centres around an order made by the Commissioner under s. 19 of the Valuation Act 2001 (“the Act”) for the revaluation of all commercial properties in the Dublin City Council rateable valuation area.
Stanberry is the owner of a car park (“the subject property”), which was valued accordingly. The valuation process comprised a proposed valuation certificate issued with an assessment of €1,235,000.00 (11 January 2013), a reduction of that further to representations to €1,140,000.00 (16 December 2013), an appeal to the Commissioner and revaluation by him (6 August 2014) and an appeal from that decision by Stanberry to the Tribunal (3 September 2014, 15 and 16 December 2015 respectively).
The valuation as appealed to the Tribunal was €1,140,000.00, representing a rate per car parking space of €3,000.00. The valuation fixed by the Tribunal in its decision of 1 April 2016 reduced this by €250.00 per space, leading to a rateable valuation of the subject property of €1,045,000.00.
Following that decision, Stanberry indicated its intention to appeal and a case stated was prepared for the High Court. After considerable delay from the State’s side, the case stated was signed by the Chairperson of the Tribunal, who was not a member of the panel that had heard the appeal.
The Commissioner took objection to the case stated as so signed, and a motion to strike it out was brought to the High Court. The Commissioner argued that the case stated was “improper and/or misconceived” as “no question of law arose” therein. Further, the Commissioner argued that the case stated was a selective presentation of the facts and that it should have been taken as a judicial review application rather than a case stated.
Ultimately, the Court dismissed the application by the Commissioner and awarded the entirety of the costs thereof in favor of Stanberry, citing the lack of engagement and cooperation shown by the State in agreeing and signing the case stated.
The Commissioner directed and suggested amendments to the case stated following which the parties agreed the contents of an amended case.
The finalised case stated identified five questions arising from the decision of the Tribunal.
In the High Court, three of these questions were resolved in favour of the Commissioner; they related to the acceptance by the Tribunal of comparisons close to the subject premises, to the alleged failure of the Tribunal to take proper account of un-appealed or agreed valuations of car parks in the north city, and the Tribunal’s use of a particular method of valuation – the comparison method – as the basis of its valuation.
Further, one question was resolved in favour of Stanberry and one question (which in turn arose from a number of different alleged errors of fact) was resolved partly in favour of the Commissioner and partly in favour of Stanberry.
Having resolved the questions in this way, the High Court ordered that the matter be remitted to the Tribunal for re-hearing before a different division of the Tribunal.
The Net Issues
It is the two questions resolved against the Commissioner that formed the subject matter of this appeal. They are as follows:
- Stanberry claimed that the Tribunal’s determination was based on an error of fact due to an incorrect statement in its decision to the effect that the Arnott’s car park had contract parking. If this assertion of error was correct, was this error one of material fact such as to vitiate the validity of the Tribunal’s determination under s. 48 of the 2001 Act and justify the intervention of the Court?
- Did the Tribunal err in having regard in the course of its decision to the “emerging tone of the list” attributable to valuations of the Setanta and Trinity Street car parks, without considering that these valuations were in fact under appeal at the time?
The High Court Ruling
The High Court judge proposed for these two questions be answered as follows:
- The determination of the Tribunal was based on an error of fact relevant to the Arnott’s car park and thereby it erred in law in doing so.
- The Tribunal erred in law in having regard to or placing weight on the emerging tone of the list attributable to Setanta and Trinity Street car parks, which were at that time under appeal.
This decision was appealed by the Commissioner to the Court of Appeal.
The Court of Appeal Judgment
The Court of Appeal held that the admitted error in relation to the Tribunal’s description of the Arnott’s car park was indeed material to its decision and that it must conclude that the Tribunal in referring to the emerging tone of the list was erroneously referring to and attaching significant weight to the valuation of properties under appeal at that time.
Further, the High Court had awarded 70% of the High Court costs to Stanberry. This was based on an estimate of the time spent on the issues in which the Commissioner succeeded in in the High Court, and this Order was only accepted by the Commissioner at the conclusion of the case before the Court of Appeal. Notably, this is an application of the line of case law beginning with Fyffes plc v DCC plc  IEHC 32,  2 IR 417 and Grimes v Punchestown Developments Co. Ltd  4 IR 515, which establishes that an unsuccessful party in litigation can still be awarded costs in relation to issues which were successfully defended. In those decisions, the courts highlighted the importance of drafting proceedings tightly and advising clients in complex cases that even if they are successful, they might not be awarded full costs.
Interestingly, the Court discussed the concept of curial deference. This concept refers to the reluctance of the judiciary to interfere with the decisions of expert administrative tribunals, as invoked in Hemy Denny and Sons (Ireland) Ltd. v. Minister for Social Welfare  1 IR 34, Proes v. Revenue Commissioners  4 IR 174 and Premier Periclase Ltd. v. The Commissioner of Valuation (Unreported, High Court, 24 February 1999).
In the current case, the Commissioner attempted to argue that the Court should be “slow to interfere with the decisions of expert administrative Tribunals”. However, Murray J of the Court of Appeal held that administrative tribunals, expert or otherwise, obtain no deference on pure issues of law (see Millar v. Financial Services Ombudsman  IECA 126  2 IR 156 at – in particular – para. 62).
Murray J further relied on the remarks of Kelly J. in Premier Periclase Limited v. Commissioner of Valuation  IEHC 8, which make it clear that errors of fact simpliciter do not present any issue of curial deference either, because ”when conclusions are based on an identifiable error of law or an unsustainable finding of fact by a Tribunal, such conclusions must be corrected” (at para 25).
Here, Murray J noted that the arguments advanced by the Commissioner extend the doctrine beyond its parameters, effectively seeking to extract from curial deference “a supercharged presumption of validity”.
Curial deference, Murray J reasoned, is thus properly understood as depending on the Tribunal having provided a properly reasoned decision, not as affording a mechanism for compensating where the decision is not so reasoned.
Therefore, Murray J of the Court of Appeal concluded that this appeal should be dismissed and that questions one and two in the Case Stated from the Tribunal should be answered as proposed by the High Court Judge.