LANDS TRIBUNAL FOR NORTHERN IRELAND
LANDS TRIBUNAL & COMPENSATION ACT (NORTHERN IRELAND) 1964
IN THE MATTER OF AN APPEAL
VR/51/1998
BETWEEN
THE QUEEN’S UNIVERSITY OF BELFAST - APPELLANT
AND
THE COMMISSIONER OF VALUATION - RESPONDENT
Re: 82 Stranmillis Gardens, Belfast
Part 2
Lands Tribunal - The Honourable Mr Justice Coghlin and
Mr Michael R Curry FRICS IRRV MCI.Arb Hon.FIAVI
Belfast – 14 th June 2002
1. The Queen’s University of Belfast (“Queen’s”) was established on foot of a Royal
Charter pursuant to the Irish Universities Act 1908 by His Majesty King Edward VII.
Queen’s owns and occupies the hereditament at 82 Stranmillis Gardens, Belfast known as the “Physical Education Centre” (“PEC”). Since 1971 it has provided recreation facilities for its memb ers and, like most of Queen’s facilities, it has been supported by Government funds. The activities range “… From swimming to
Taekwondo, from step aerobics to mountain wall climbing, from weight training to table tennis …”.
2. The Commissioner of Valuation
(“the Commissioner”) refused to treat the PEC as a hereditament used for the purposes of recreation which would have entitled the appellant to a reduction in rates by virtue of Article 31 of the Rates (Northern Ireland)
Order 1977 (“the 1977 Order”).

3. The general policy of the Commissioner has been to limit relief from rates under
Article 31 of the 1977 Order, not only to sport/recreation activities but also to those occupiers which are of a sport/recreation character.
4. The parties agreed that the activities which took place at the PEC fell within the range of recreations specified under Article 31(2)( a ) of the 1977 Order and, having done so, the parties then submitted an agreed question for the opinion of the Tribunal which was restricted to a consideration of Article 31(2)(b).
5. The agreed question submitted to the Tribunal was:
“Whether Article 31 of the Rates (Northern Ireland) Order 1977
(Article 31) applies to the PEC as being a hereditament occupied for the purposes of a club, society or other organisation that
–
(1) Is not established or conducted for profit; and
(2) Does not employ any person to engage in any prescribed recreation for reward.”
6. The appeal was heard by the Lands Tribunal on 7 th September 2000 and judgment was delivered on 8 th November 2000.
7. On the basis of the evidence called and the submissions made to the Lands Tribunal the Tribunal concluded that the PEC complied with the requirements of Article 31(2) (b) of the 1977 Order. However, the Tribunal expressed strong reservations as to whether Article 31(2) (b) was the only test of character and invited further submissions from the parties in relation to whether the hereditament complied with the requirements of Article 31(2) (a) of the 1977 Order as being:
“ A hereditament … which or any part of which, is used solely for the purposes of a prescribed recreation.”
8. On 14 th June 2002 the matter was re-listed before the Tribunal for further argument and, upon this occasion, the appellant was represented by Mr Reginald Weir QC while
Mr Nicholas Hanna QC appeared on behalf of the respondent. The Tribunal is indebted to both counsel for the assistance that it received as a result of their succinct and carefully prepared submissions.

9. At the resumed hearing Mr Hanna QC on behalf of the respondent sought the leave of the Tribunal to amend the respondent’s statement of case in order to rely upon the provisions of Article 31(2) (a) . In support of this application Mr Hanna QC frankly accepted that the point had simply not occurred to the respondent or its advisors prior to the judgment of the Tribunal on 8 th November 2000 but went on to submit that the amendment should be admitted for a number of reasons:
(1) The appellant would not be prejudiced in any way by permitting such an amendment to be made.
(2) In omitting to raise the issue at an earlier stage, the respondent should not be taken to have formally admitted or conceded the point.
(3) Even if the respondent was to be regarded as having formally conceded the point, Mr Hanna QC relied upon authorities such as Gale v Superdrug Stores Plc
[1996] 3 All ER 468, Bird v Birds Eye Walls Ltd [1987] The Times 24 th July and H
Clarke (Doncaster) Ltd v Wilkinson [1965] Chan 694 as setting out circumstances in which the court had a discretion to permit any such concession to be withdrawn.
10. On behalf of the appellant Mr Weir QC submitted that both parties had agreed as to the nature of the specific question that was originally submitted for the opinion of the
Tribunal, that the Tribunal had delivered its opinion upon that agreed question in the course of its judgment on 8 th November 2000 and that, having done so, the Tribunal had exhausted its jurisdiction and was effectively “functus officio”.
11. Mr Weir QC emphasised that proceedings before the Tribunal were adversarial rather than inquisitorial in character and he referred to the words of Pearce LJ in Fallon v
Calvert [1960] 1 All ER 281 at 282G who said:
“In a civil suit the function of a court in this country (unlike that of courts in some other countries) is to decide cases on the evidence that the parties think fit to call before it. It is not inquisitorial.”
12. He also referred to paragraph 20/8/3 of Vol 1 of the 1999 White Book at which the learned authors cited, inter alia, Fallon v Calvert and observed that it is not the duty of the court to force upon the parties amendments for which they do not ask and that the court plays only a passive role in relation to the raising of issues for its consideration and determination.

13. Mr Weir also drew the attention of the Tribunal to the letter from the representative of the Commissioner of Valuation dated 2 nd March 1998 which, he argued, constituted evidence of a concession by the Commissioner that the only relevant issue was the question originally submitted to the Tribunal. Mr Weir QC also asked the Tribunal to consider the “chilling” effect which permitting such an amendment at this stage might have upon the willingness of ratepayers and their advisors to negotiate with the
Commissioner.
Conclusions
14. The Tribunal is conscious that some of the authorities cited by the parties concern the application of the Civil Procedure Rules, a regime that does not apply within this jurisdiction. However, bearing that caveat in mind, the Tribunal notes that all three judges in the Court of Appeal in Stewart v Engel & Anor [2000] 3 All ER 518, Roch,
Clarke LJJ and Sir Christopher Slade, were in agreement that a court has power to reopen its judgment or order in the period between delivery, either oral or written, and the date upon which the judgment or order is sealed or filed in accordance with the provisions of the equivalent of Rules of the Supreme Court (NI) 1980, Order 59 rule
4(1). At page 524 Sir Christopher Slade cited with approval some examples of cases where the jurisdiction might justifiably be invoked referred to by Neuberger J in Re
Blenheim Leisure (Restaurants) Ltd (No 3) [1999] The Times 9 Nov which included:
“… A plain mistake on the part of the court; a failure of the parties to draw to the court’s attention a fact or point of law that was plainly relevant; or discovery of new facts subsequent to the judgment being given.”
15. Having done so, Sir Christopher Slade went on to say:
“It is to be observed that in all these instances, if the court had no power to reconsider its order before it was drawn up, the only remedy open to the party prejudiced would be by way of appeal from the order. Though on such hypothetical facts an appeal would itself have a good chance of success, common sense suggests that in such cases the judge who made the order should himself have the powers to vary it before the appeal procedure has to be set in motion, with the likelihood of

exposing all parties to far greater expense and delay that an application to the court of first instance.”
16. Again, when considering the jurisdiction in Charlesworth v Relay Roads Ltd (In
Liquidation) & Others [1999] 4 All ER 397, Neuberger J said, at page 401:
“Nonetheless, it seems to me that, as a matter of principle, if, as those cases all show, the judge retains control of the case, to the extent of being able to reconsider the matter of his own motion or to hear further arguments on a point which he has decided, it seems to me that there must be power to permit pleadings to be amended, even if that involves a new argument being put forward, or further evidence being adduced, or even both, as the defendants seek here.”
17. In seeking to exercise its discretionary power in the interests of justice the court must have regard to all the relevant circumstances of the particular case as well as to the impact of the two potentially competing principles which require the parties to be permitted to raise all relevant issues while, at the same time, promoting the importance of ensuring that litigation is conducted as efficiently, economically and expeditiously as possible.
18. The differing approaches may be illustrated by quotations from two judgments. In
Gale v Superdrug Stores Plc [1996] 3 All ER 468 at 477-478, [1996] 1 WLR 1089 at
1098-1099 Millett LJ said:
“The administration of justice is a human activity and accordingly cannot be made immune from error. When a litigant or his advisor makes a mistake, justice requires that he be allowed to put it right, even if this causes delay and expense, provided that it can be done without injustice to the other party.
The rules provide for mis-joinder and non-joinder of parties and for amendment of the pleadings so that mistakes in the formulation of the issues can be corrected. If the mistake is corrected early in the course of litigation, little harm may be done; the later it is corrected, the greater the delay and the amount of costs which will be wasted. If it is corrected very late,

the other party may suffer irredeemable prejudice … In
Clarapede & Co v Commercial Union Association [1883] 32 WR
262 at 263 Brett MR said:
`However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side.
There is no injustice if the other side can be compensated by cost.’
I do not believe that these principles can be brushed aside on the ground that they were laid down a century ago, or that they failed to recognise the exigencies of the modern civil justice system. On the contrary, I believe that they represent a fundamental assessment of the functions of a court of justice which has a universal and timeless validity.”
19. On the other hand, after referring to these remarks by Millett LJ, in Worldwide Corp
Ltd v GPT Ltd [1998] CA Transcript 1835 Waller LJ observed that:
“We share Millett LJ’s concern that justice must not be sacrificed, but we believe his view does not give sufficient regard to the fact that the courts are concerned to view justice to all litigants, and that it may be necessary to take decisions vis a vis one litigant who may, despite all the opportunity he or his advisors have had to plead his case properly, feel some sense of personal injustice for the sake of doing justice both to his opponent and t o other litigants.”
20. Waller LJ then went on to cite the following remarks of Lord Griffith in Ketteman v
Hansel Properties Ltd [1988] 1 All ER 38 at 62, [1987] AC 189 at 220:
“Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lies. Many and diverse factors will bear on the exercise of this

discretion. I do not think it possible to innumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectations that the trial will determine the issues one way or the other. Furthermore, to allow an amendment before a trial begins is quite different from allowing it at the end of a trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence.”
21. In reaching its conclusion, the Tribunal has taken these principles into account, together with the specific circumstances of this case, and, in particular, has had regard to the following factors:
(1)
As appears from the terms in which it was expressed, the Tribunal’s decision of 8 th November 2000 was never intended to be final. The Tribunal recorded its reservations as to whether the question framed by the parties adequately dealt with all the relevant issues and, having done so, specifically invited the parties to address it further in relation to the provisions of Article 31(2) (a) .
(2) The circumstances of this case differ fundamentally from those in Stewart v
Engle in which an invitation to amend the case was repeatedly refused by one of the parties.
(3) If the Tribunal grants the relief sought by the Commissioner the appellant is not likely to suffer any prejudice which cannot be compensated by an appropriate award of costs. The appellant has not significantly altered its position or acted to its detriment on the basis of the decision of the Tribunal and granting leave to amend will ensure that the Tribunal has an opportunity to determine all the relevant issues.
Both the appellant and the respondent are corporate bodies as opposed to private individuals.
(4) While it accepts that, generally speaking, proceedings before it are adversarial rather than inquisitorial in nature, the Tribunal also agrees with the submission put forward by Mr Hanna QC that there is a fundamental distinction between a civil action and the statutory appeal provided for by Article 31 of the Rates

(NI) Order 1977. In order to qualify for rate relief the appellant must show that it comes within the relevant parts of Article 31 of the 1977 Order, in this case, Article
31(2) (a) and (b) . Any decision taken by the Tribunal will have public consequences for the rating system and the rating burden falling upon other ratepayers.
22. Accordingly, the Tribunal proposes to permit the Commissioner to amend its statement of case and argue the Article 31(2) (a) issue.
10 th September 2002
ORDERS ACCORDINGLY
The Honourable Mr Justice Coghlin and
Mr M R Curry FRICS IRRV MCI.Arb Hon.FIAVI
LANDS TRIBUNAL FOR NORTHERN IRELAND
Appearances:-
Appellant – Mr Reginald Weir QC with Mr Stephen Shaw QC instructed by L’Estrange
& Brett.
Respondent – Mr Nicholas Hanna QC instructed by the Departmental Solicitor’s
Office.