Caffe Concerto Limited v Nicola Johnson
Neutral Citation Number: [2026] UKUT 148 (LC)
Case Nos: LC-2025-425
IN THE UPPER TRIBUNAL (LANDS CHAMBER)
15 April 2026
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
RATING – PROCEDURE – late filing of an appeal with the VTE – VTE’s reasons for dismissing the appeal – requirements of Denton & Ors v TH White Ltd
BETWEEN:
CAFFE CONCERTO LIMITED
Appellant
-and-
NICOLA JOHNSON
Respondent
Basement to First Floor,
28 South Molton Street,
London, W1K 5RF
Judge Elizabeth Cooke
Determination on written representations
The following cases were referred to in this decision:
BPP Holdings v HMRC [2017] UKSC 55
Denton & others v TH White Ltd & others [2014] EWCA Civ 906
HMRC v Medpro Healthcare Limited [2026] EWCA Civ 14
Simpsons Malt Ltd and others v Jones (VO) and others [2017] UKUT 460 (LC)
Introduction
This is an appeal from the decision of the Valuation Tribunal for England (“the VTE”) to dismiss an appeal against a rating assessment on the ground that it was filed late. It has been decided under the Tribunal’s written representations procedure. The appellant has been represented by Mr Austin Marshall MRICS of Conneely Tribe property consultants; the Valuation Officer has chosen not to participate in the appeal.
The legal and factual background
The “check, challenge, appeal” procedure introduced in 2017 in relation to non-domestic rating is set out in the Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009/2268 (“the Alterations regulations”). The “challenge” part of the procedure is found in regulations 5 to 9, while regulations 10 to 13 relate to the Valuation Officer’s response to a challenge. Regulation 13A makes provision for an appeal to the VTE from the VO’s response. Regulation 13B says this:
A proposer may only make an appeal following a decision of the VO under regulation 13 within the period of 4 months beginning with the date of the decision notice under that regulation.”
Regulation 6(3)(a) of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009/2269 (the "Tribunal Procedure Regulations") gives the VTE a discretion to extend or shorten the time for complying with any regulation or direction.
The Alterations regulations make reference in regulation 3 to the “VO's electronic portal”, which is defined to mean the online facility provided by the VO for use in connection with proposals for the alteration of a local list compiled on or after 1st April 2017. Regulation 6(2) provides that a proposal, or “challenge”, must be served on the VO using the VO’s electronic portal. Likewise regulation 9(12) provides that any additional evidence served by the proposer on the VO forms part of the proposal and must be served using the VO’s electronic portal. Information about the portal is easy to find online; it is in familiar format and enables two-way communication. There is no requirement in regulation 13 of the Alterations regulations for the VO to use the portal to serve its response to a proposal, but it normally does so.
The appellant is the ratepayer in respect of a hereditament on South Molton Street, London W1. It went through the “check” and “challenge” procedures. Mr Austin Marshall’s witness statement explains what happened next:
“On 13 March 2025, the Valuation Officer issued a decision. That decision was served by email, rather than being posted to the Check and Challenge portal. Our case-management system generates deadline reminders only when a decision is posted on the portal (as that triggers the usual workflow and diary process). As the decision was not posted on the portal, an automatic reminder was not triggered.
The appeal to the Valuation Tribunal was lodged on 20 August 2025, 38 days late. The delay was an isolated administrative oversight arising from the atypical method of service and a consequent deviation from the usual portal workflow.
… Once the issue was identified, steps were taken promptly to progress matters and to regularise the position.”
So the appeal was lodged just over a month out of time following a four month appeal window. The VTE dismissed the appeal. It explained the time limit for appeal and its own discretion to extend time and said this:
“… in considering whether to exercise discretion to extend the statutory time limit I consider it appropriate to have regard to the three-stage test from the Court of Appeal’s decision in Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906. In short, this requires examination of the significance and seriousness of the delay, the reasons why the delay occurred, and all the relevant circumstances in the round.
I consider that a breach has occurred in that the appeal was lodged after the deadline and that breach is serious. I note that the Valuation Officer’s decision notice was not issued via the portal, but the notice had been received by the appellant’s representative and that the notice would have provided sufficient information concerning when an appeal should be lodged with the Valuation Tribunal. A system should have been put in place to enable a reminder when the period in which to appeal was drawing close and therefore I am not satisfied that good reason had been given for the breach.
In view of the above, I am not satisfied that it is in the interests of justice to extend the time limit for making the appeal.”
Against that decision the appellant now appeals.
Discussion and conclusion
The VTE’s decision to dismiss the appeal was a case management decision. Appeals against such decisions are conducted by way of review (see paragraphs 63 and following of Simpsons Malt and others v Jones (VO) and others [2017] UKUT 460 (LC), and rule 12 of the Tribunal’s Practice Directions). The VTE’s decision appears to be a harsh response to an inadvertent delay, and one which was short by comparison with the appeal period of four months. But the appeal can succeed only if the VTE’s decision was not a proper exercise of its discretion.
The VTE was rightly guided by the principles in the Denton decision, although its consideration of those principles was very brief. It is useful to look at the way the Denton principles were summarised in Simpsons Malt by the Tribunal. (the President, Holgate J as he then was, and the Deputy President Mr Martin Rodger KC):
“At its first stage the Denton guidance requires an assessment of the seriousness or significance of the breach in respect of which relief from sanctions is sought. If, after considering its effect on the particular litigation and on litigation generally, a judge concludes that a breach is not serious or significant, relief from sanctions will usually be granted. If, however, the tribunal considers that the breach is serious or significant, the second and third stages assume greater importance.
The second stage is to consider why the failure or default occurred. The burden is on the defaulting party to persuade the court to grant relief and it must therefore explain what happened and why. If there is a good reason, such as illness or accident, relief against sanctions is likely to be granted, but merely overlooking a deadline, for whatever reason, is unlikely to be a good reason. That is not to say that, in the absence of a good reason for default, an application for relief will inevitably fail, as the Court of Appeal emphasised in explaining its third stage (paragraphs [12], [29-30] and [38]).
At the third stage the court must consider all the circumstances of the case, so as to enable it to deal justly with the application. Rule 3.9(1)[of the CPR] expressly so requires, but it also emphasises the particular weight to be given to two important factors, namely, the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce compliance with rules, directions and orders (paragraphs [32] and [35]). … In looking at all the circumstances, the court may take into account the promptness of the application for relief against sanction and any other past or current breaches by the parties of the rules, practice directions and orders (paragraph [36]).
In Denton, at paragraph [37], the Court of Appeal warned against an unduly draconian approach to relief and emphasised that compliance was not to be regarded as an end in itself; rules and rule compliance were the handmaids not the mistresses of justice and could never be allowed to assume a greater importance than doing justice in any case.”
The Court of Appeal in HMRC v Medpro Healthcare Limited [2026] EWCA Civ 14 has confirmed that it is appropriate for the Upper Tribunal to provide guidance to the FTT in procedural matters such as this one.
Two things are troubling about the VTE’s decision.
The first is the cursory treatment of the first stage of the Denton enquiry. The VTE simply said “I consider that a breach has occurred in that the appeal was lodged after the deadline and that breach is serious.” But a failure to meet a deadline is not automatically serious. At the very least there is a need for consideration of the length of the delay; days are very different from months, and this was a delay of just over a month in the context of a four-month period and therefore a relatively short delay. It is clear from the analysis in Simpsons Malt that it is also necessary to consider the effect of the delay; was it such as to make a difference to the conduct of the appeal? Did it cause any inconvenience to the VO or to the VTE, would it make it difficult to consider the evidence or make any evidence unavailable, and so on.
The VTE’s judgment that this delay was serious has the appearance of an automatic reaction to a delay of any length rather than a considered evaluation. In my judgment this delay was not serious. It was relatively short in its context and it could have had no effect at all on the subsequent conduct of the appeal.
As to the second stage, the VTE was critical of the absence of a system for prompting an appeal when the notice was received by email rather than through the portal. I agree that ideally the person reading the email would have made a diary note. But the difficulty here was the unexpected email service, rather than the VO using its own portal. It is impossible to see why that happened, and very easy to see why the appellant did not have a “system” to meet such circumstances. It did not need a system for the receipt of rating decisions by email because that was not how such decisions are communicated; it did have a system triggered by receipt of a notice via the portal, but in this case the VO’s unexpected method of communication blindsided the system. The person reading the email may not have appreciated that the usual reminder system was not going to work.
In my judgment the VTE’s consideration of the second stage was incomplete because it did not give proper weight to the effect of the VO’s unexpected behaviour.
The VTE gave no consideration to the third stage at all. It would have been relevant to note that this was an isolated incident, not a case where a party had a history of defaults. There was no question of proceedings being interrupted, or of being conducted inefficiently as a result of the delay. And once the appellant became aware of the problem, the appeal was lodged promptly. It is very difficult to see how the dismissal of the appeal, in the circumstances, was a proportionate response to the delay.
I also have misgivings about the VTE’s conclusion: “I am not satisfied that it is in the interests of justice to extend the time limit for making the appeal”. The appellant was not required to satisfy the VTE that it was in the interests of justice to extend time for filing the appeal. The question for the VTE was whether in light of the information provided by the appellant and its consideration of the Denton factors it would be appropriate to extend time.
I find that the VTE did not give proper consideration to whether the offence was serious, and did not give full weight – indeed, it gave scarcely any weight – to the part played by the VO in events that led to the delay. It did not therefore take into account relevant considerations and its exercise of discretion was not a proper one. I set aside the VTE’s decision, and substitute the Tribunal’s own decision that time for the lodging of an appeal is extended to 20 August 2025.
Conclusion
The appeal is allowed, and proceedings in the VTE are reinstated.
Judge Elizabeth Cooke
15 April 2026
Right of appeal
Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.