Where a Local Authority (the ‘Billing Authority) applies [1] by way of complaint to the Magistrates Court for a liability order against an alleged ratepayer, for allegedly due but unpaid, national non-domestic rates (‘Business Rates’), it will also request[2a] that the Magistrates Court issue a summons requiring the alleged ratepayer to attend the Magistrates Court to answer the complaint (the ‘Complaint’). In England, this happens pursuant to regulation 12(2) in Part III to Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations (SI 1989/1058) (the ‘Regulations’), which reads:
‘The application is to be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding.’
Further, by reg.12(5) of the Regulations:
‘The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid.’
Whether the justices, the Magistrates Court, is so ‘satisfied’, will involve: (i) the burden of proof/onus of proof; and (ii) the concept of ‘weight’ and the weighing up of the evidence. Within this, an important issue for both the complainant Billing Authority and the defendant alleged ratepayer, will be, at any given time during the Complaint’s progress, who bears the onus of producing evidence in support of their position, otherwise the Magistrates Court will find against them.
This article will consider the onus of proof and 5 cases in detail: (1) Ratford v Northavon District Council [1987] 1 QB 357 (Slade and Ralph Gibson LJ and Sir John Megaw) (‘Ratford’); (2) Westminster City Council v Tomlin [1990] 1 All ER 920 (Croom-Johnson LJ, Mann LJ and Fox LJ) ('Tomlin'); (3) Pall Mall Investments v Camden LBC [2013] EWHC 459 (Admin) (Holman J) (‘Pall Mall’); (4) Queen Street Properties Ltd v Cardiff City and Council Council [2022] EWHC 39 (Admin) (Eyre J) ('Queen Street') and (5) Total Sprint Ltd v Swale BC [2023] EWHC 2968 (Admin); [2024] 1 WLR 1687 (Eyre J)('Total Sprint'). The first case, Ratford, is under the old General Rate Act 1967 (now repealed[2b]) but:
(i) the provision under review was very similarly worded. In Pall Mall, Holman J said, at paragraph 18 ‘The actual wording of that part of the [Regulations] is not identical to the wording of section 97(1) of the General Rate Act 1967, but appears to be to exactly the same effect’; and
(ii) Ratford’s key principles were carried forward by Pall Mall into Business Rates. Holman J said, at paragraph 18 ‘…insofar as the earlier authorities reflect or are based upon the language of section 97(1) of the General Rate Act 1967, they are equally in point, albeit that the relevant provision is now regulation 12(2) to which I have referred.’
It is therefore convenient to start[2c] with Ratford.
Ratford
In Ratford, on 28.2.83, a rating authority, Northavon District Council (the ‘Council’) had made the rate, and had duly published it the following week. The rate was due on 1.4.83. Initially, the Council addressed a demand for payment for a particular hereditament, a certain premises on an industrial estate (the ‘Premises’), to a company called Sabre Tooling Ltd (the ‘Company’). However, the Company had given a debenture to a bank, and on 5.4.83, the bank exercised a power within the debenture and appointed receivers (the ‘Receivers’) over the Premises. On 6.4.83, the Receivers notified the Council of their appointment, and the Council amended its ratings records, marking the Receivers, personally, as the occupiers of the premises from 5.4.83. On 2.6.83, the Council sent: (a) a demand for rates to the Company for the period to 4.4.83, and (b) a demand for rates for the period 5.4.83 to 31.3.84, to the Receivers.
The Receivers made no payment, and on 21.7.83, the Council preferred a complaint to the Magistrates Court under section 97(1) of the General Rate Act 1967, seeking, not a liability order, but to enforce by distress (by applying for the issue of a warrant of distress[3]) against the Receivers, asserting that the Receivers, though being persons duly rated and assessed in the general rate in question, had not paid it.
Section 97(1) of General Rate Act 1967, so far as material, provided:
'The proceedings for the issue of a warrant of distress … may be instituted by making complaint before a justice of the peace and applying for a summons requiring the person named in the complaint to appear before a magistrates' court to show why he has not paid the rate specified in the complaint.’
On 22.9.83, the Receivers, caused the company to dispose of the property to another (foreshortening the Receivers liability, to 5.4.83 to 22.9.83 period).
At the first hearing in the Magistrates Court on 1.11.83, '...the [Council] proved that the rate was duly made and published, that it had been duly apportioned in accordance with section 18 of the Act of 1967, and that the apportioned rate had been due demanded of the [R]eceivers and not paid.’ (at 364G)
The justices in the Magistrates Court accepted the submission that ‘In the circumstances, the council …had established a prime facie case against the [R]eceivers that they were the rateable occupiers and that the onus of proof lay on the [R]eceivers to show that they were not liable to pay the rates.’ (at 364G). The justices ‘held that the onus was upon the [R]eceivers to show that they were not liable’.
At a resumed hearing on 22.11.83, the Receivers argued that, on the basis of evidence contained in an agreed statement of facts and the relevant documents (namely, the debenture, appointment and 6.4.83 letter), the Receivers never entered into rateable occupation of the premises. However, the Receivers chose not to give evidence and no evidence was called on their behalf.
The justices found as a fact that the Receivers were rateable occupiers of the property and were liable for the rates. In essence, ‘(i) they regarded the onus of proof as falling throughout all the proceedings on the [R]eceivers to show that they were not in rateable occupation of the premises; and (ii) they considered that the [R]eceivers had not discharge this onus on the available evidence’ (at 366B)
The Receivers appealed by way of case stated to Kennedy J, who in turn was appealed by the Receivers to the Court of Appeal.
In the Court of Appeal, after consideration of Des Salles d’Epinoix v Kensington and Chelsea (Royal) London Borough Council [1970] 1 WLR 179, Forsythe v Rawlinson (1980) 21 RVR 97 and Verrall v Hackney London Borough Council [1983] QB 445, Slade LJ in Ratford said, at 369G:
‘On the basis of these authorities and on general principle, I would derive the following propositions of law as to the burden of proof in rating cases:
(1) A rating authority will not be justified in applying for a summons against a person under s 97(1) of the 1967 Act if it has no reasonable grounds for believing that he is or may be in rateable occupation of the premises in question if it were to decide to apply for a summons in such circumstances, its decision would be open to judicial review. This I infer is what Donaldson LJ had in mind in saying in Forsythe v Rawlinson at 98 that 'the rating authority is only entitled to issue a complaint against people who are within the category of those who may prima facie be liable for the rates'. Thus, though for present purposes I find it unnecessary to express any concluded view on this point, it may be that s 97(1) must be read subject to the implicit qualification that it would place no onus on a person who received a summons which so far lacked any reasonable basis that the decision to issue it could be successfully attacked on Wednesbury grounds (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223). This I infer is what Lord Parker CJ may have had in mind in saying that s 97(1) contemplates that 'assuming that there is prima facie evidence that he is the rateable occupier … it is for him then to appear and show for one reason or another why he has not paid' (Des Salles d'Epinoix v Kensington and Chelsea Royal Borough [1970] 1 All ER 18 at 21, [1970] 1 WLR 179 at 183).
(2) Even if this implicit qualification to s 97(1) exists, it can, in my opinion, only apply in a case where on the facts known to the rating authority the person named in the complaint could not have been reasonably regarded by the authority as a reasonably possible candidate for the position of rateable occupier.
(3) Subject to (1) and (2) above, at the hearing of a summons under s 97(1), all the rating authority has to show in the first instance is that (a) the rate in question has been duly made and published (b) it has been duly demanded from the respondent, and (c) it has not been paid. If these three things are shown, the burden then falls on the respondent to show sufficient cause for not having paid the sum demanded (see Verrall v Hackney London BC [1983] 1 All ER 277 at 283, [1983] QB 445 at 459 per May LJ). The question whether a person who appears to be in occupation of a particular property is in actual occupation of it will be peculiarly within his knowledge. It seems to me probable that the legislature, in enacting s 97(1), would have contemplated that the burden of proving a defence based on non-occupation of the property would in the first instance fall on the respondent.
(4) However, the standard of proof will be merely that of the balance of probabilities, and in Donaldson LJ's words in Forsythe v Rawlinson at 98, 'like all cases of the burden of proof in litigation, it is a swinging burden'. As the evidence of varying weight develops before the magistrates, the eventual burden of proof will, in accordance with ordinary principles of evidence, remain with or shift to the person who will fail without further evidence (see, for example, 17 Halsbury's Laws (4th edn) para 15).’
Ratford was followed by Burnett J in North Somerset DC v Honda Motor Europe Ltd [2010] EWHC 1505 (QB).[4]
On the facts in Ratford, Slade LJ accepted that ‘neither the appointment of the [R]eceivers by the bank…nor the taking over by the [R]eceivers, when appointed, of the management of the company’s affairs, was necessarily sufficient to render the [R]eceivers rateable occupiers in the place of the company’ (at 371A). However, from 6.4.83 letter, ‘…the council knew that the rateable occupiers must be either the company or the [R]eceivers. Their decision to invoke the section 97 procedure against the [R]eceivers could not…have been successfully attacked by Wednesbury grounds.’ (at 371C; see also 378D). Consequently, before the Magistrates Court, ‘…the onus of proof, at least in the first instance…fell on the [R]eceivers to show that no change of rateable occupation had taken place.’ (at 371D).
The Court of Appeal found that the Receivers’ had prima facie discharged this burden, by producing evidence that while they had been empowered to take possession, they had not been obliged to take possession, and further that in carrying out their activities, they should be deemed to be the agents of the company. With that shown, the onus had shifted again, onto the Council, to show that the Receivers dispossessed the company. But the Council had failed to displace this onus, as there had not been sufficient evidence before the justices to justify a finding that the Receivers dispossessed the company (the full reasoning is in the endnote[5]).
The Court of Appeal concluded, at 380A, that: (i) in the circumstances established by the evidence, the onus of proof had not lay on the Receivers; and so (ii) the Receivers were not 'occupiers' of the property for the purposes of rating within the meaning of the General Rate Act 1967.
That the burden of proving that the rates have not been paid by an alleged ratepayer, lies on the Billing Authority, was further confirmed by the Court of Appeal in Tower Hamlets LBC v Fallows [1990] RA 255 ('Fallows').
Tomlin
As noted in Total Sprint at paragraph 47, in Tomlin, Croom-Johnson LJ (with whom Mann and Fox LJJ agreed) explained the underlying justification for imposing the evidential burden on the alleged ratepayer, to show cause why he has not paid. It is based on the imbalance of knowledge as between the alleged ratepayer on the one hand and the Billing Authority on the other. Croom-Johnson LJ considered knowledge of occupation from the rating authority's standpoint, emphasising the authority's limited scope for knowledge and saying at 1288H:
'The rating authority cannot know the full circumstances surrounding each rateable property in its area, and section 97(1) contemplates that if the authority establishes a prima facie case that the rates have been properly demanded and not paid, the burden of proof then shifts to the respondent to the summons to appear and show for one reason or another why he has not paid: see Des Salles d'Epinoix v. Kensington and Chelsea (Royal) London Borough Council [1970] 1 W.L.R. 179, 182 , per Lord Parker C.J…'
Pall Mall
In Pall Mall, a property in Hatton Garden, London (‘the Property’) had at all material times been unoccupied and so, liability for any Business Rates due fell upon the person entitled to possession of it. Pall Mall Investments Ltd (‘PMIL’) where the freeholders of the Property and so were liable for failure to discharge the obligation to pay Business Rates for the Property unless instead, another person had been entitled to possession of it during the liability period (1.4.09 to 31.3.11), that is, another person had held, throughout the relevant liability period, a leasehold interest carved out of the freehold.
From an early stage, PMIL produced a document that purported to be a lease granted as from 1.4.09 to Lonia Limited (‘Lonia’), without doing any more. The billing authority, London Borough of Camden (‘Council’) made it clear the Council did not accept that piece of paper as being an authentic lease. Following the summons (16.2.11), summoning a hearing (17.3.11), the Magistrates Court made 2 sets of directions (7.4.11 and 12.5.11), each in turn requiring (amongst other things) PMIL to serve its witness statements. PMIL did not serve any witness statements (or statements of evidence) at all.
At the 31.5.11 hearing before DJ Henderson in the Magistrates Court, only a solicitor-advocate and a surveyor (to assist the solicitor-advocate on technical ratings matters) attended for PMIL. No evidence on oath was called by the Council or PMIL. It had not been in dispute, and the DJ found, that the 3 initial requirements were satisfied: (a) The rate in question had been properly set (duly made and published); (b) the rates had been duly demanded by the Council from PMIL (in proper form and reminders sent in proper form); and (c) it had not been paid (see paragraphs 2,10 and 17).
PMIL relied upon the ‘lease’ and had argued that there was no evidentiary basis upon which the court could conclude that the ‘lease’ did not create a tenancy. Against this, while the Council had not objected to the ‘lease’ piece of paper being received by the DJ, the Council had clearly challenged the authenticity, validity and legal effect of the ‘lease’. As to the ‘lease’, the DJ noted:
a. It was undated;
b. The signatures were illegible;
c. It comprised one side of A4 paper;
d. There was no reference to liability for rates;
e. It did not contain the detail generally found in a commercial lease.
And so he was not satisfied on a balance of probabilities that the lease was genuine. PMIL appealed by way of case stated.
The appeal came before Holman J. After considering Ratford and Westminster City Council v Tomlin [1990] 1 All ER 920, National Westminster Bank PLC v Rosemary Doreen Jones [2001] 1 BCLC 98 ('Rosemary'), Holman J said, at paragraph 19:
‘It seems to me…that once the primary facts had been established or admitted there was an evidential burden which “swung” or “shifted” to [PMIL] to show that they were not in rateable occupation.’
Holman J then dealt with the contention, that:
(i) the ‘…mere production of the piece of paper headed “Lease” by [PMIL’s solicitor advocate] was, and must be, sufficient to discharge that particular burden, so that the evidential burden then “swung” or “shifted” back again onto [the Council] to establish (albeit on the balance of probability) that the “Lease” was not genuine or authentic.’ (paragraph 19)
(ii) ‘…the starting point has to be that the piece of paper headed “Lease” must be taken at face value according to its terms.’ (paragraph 20).
(iii) The “Lease” was either : (I) genuine; (II) a forgery; or (III) a sham, and that ‘…even in a case which falls to be decided on the balance of probability the law requires cogent evidence from any person or party who contends that a document is a forgery or a sham.’ (paragraph 21).
Though PMIL placed reliance on Neuberger J in Rosemary, Holman J said Neuberger J’s observations[6] in Rosemary needed to be understood in their context. In Rosemary, ‘…there was a considerable evidential substratum against which the judge was able to consider whether or not the agreements were “sham”’ (paragraph 22) however, in Pall Mall, ‘[t]he situation was…frankly, a great deal more nebulous’ (paragraph 23) - the Council not expressly having identified or asserted the “Lease” was a sham or forgery - and the DJ simply having identified ‘…a number of features which raised in his mind serious doubts about the real authenticity of the “Lease” and led to his conclusion that he was not satisfied that the lease was “genuine”’ (paragraph 23).
Then Holman J said, at paragraphs 24 to 26:
‘It seems to me that [PMIL] made a choice and a decision in this case. They had been given an ample opportunity by the two sets of directions that I have described above to file evidence and/or call a witness or witnesses as to the making and signing of the “Lease” and the surrounding circumstances. For instance, whoever it was who purportedly signed on behalf of [PMIL] could have made a statement evidencing and describing how he or she had signed the document and identifying his signature; evidencing and describing the circumstances in which the other officer of [PMIL] did so; and perhaps evidencing and describing the circumstances in which, the directors of Lonia…did so and indeed naming them.
Instead, they chose simply to hand up a piece of paper. [The Council] had already clearly pointed out in correspondence a number of question marks in relation to that document. [The Council’s solicitor] clearly repeated those points to the district judge and there is nothing at all in [(a) to (e)] that could possibly have taken [PMIL’s solicitor advocate or PMIL] by surprise. The points made are all obvious ones derived simply from looking at the piece of paper.
In my view, this appeal boils down... to the concept of “weight”. That was essentially a matter for the district judge. He felt unable to attach any significant weight to a piece of paper which was simply proffered without any supporting written or oral evidence at all.’
As to what weight ought to be attributed to the ‘lease’, Holman J ruled, at paragraph 28, that it had been ‘…a matter for the [DJ] to decide how much weight properly to attach to the piece of paper headed “Lease”…’ and that he had been ‘… entitled to conclude that he could not attach enough weight to it to swing the evidential burden back onto [Council]’.
Consequently, at paragraph 27, Holman J held that the DJ had not been wrong when the DJ had found that:
(i) there was insufficient evidence to conclude that the purported ‘lease’ was adequate to demonstrate a transfer of the Property; and
(ii) PMIL had failed to satisfy the DJ on the balance of probabilities that PMIL were not entitled to ‘occupation’ (meaning possession, technically) of the Property.
The appeal was dismissed.
Queen Street
In Queen Street, Eyre J said, at paragraph 31:
'As explained in Ratford the burden is on the Council to show that the rate in question has been duly published and demanded and that it has not been paid. When that is shown the burden falls on the respondent to a summons to show sufficient cause why it should not pay the rate in question. That, however, is a swinging burden in the sense that the evidence advanced by a respondent may mean that the rating authority in question becomes called upon to disprove inferences arising naturally from such evidence.'
Total Sprint
In Total Sprint, Eyre J considered Holman J's judgment in Pall Mall. He found that he was not bound to follow Holman J's approach (Total Sprint, paragraph 51) as '...the question of who bore the evidential burden was not in dispute before Holman J' (Total Sprint, paragraph 51)[7]. But Eyre J said in Total Sprint, at paragraph 51:
'...it is also clear that Holman J considered the wording of section 97(1) and of regulation 12(2) together with the earlier authorities. Having done so he concluded that the similarities in the legislative language and in the issues to be considered were such that the approach applicable to section 97(1) was also applicable to regulation 12(2). I am not bound to follow Holman J's approach but unless the position in Pall Mall Investments is properly distinguishable from the circumstances of this case I should do so as a matter of judicial comity unless I am convinced either that it is wrong (Robert Goff LJ per curiam in R v Greater Manchester Coroner ex p Tal [1985] QB 67 at 81A-B) or that there is a powerful reason for not doing so (Lord Neuberger in Willers v Joyce (No2) [2016] UKSC 44, [2018] AC 843 at [9]).'
As to whether or not Eyre J was perusaded that Holman J's approach was wrong, Eyre J in Total Sprint said, at paragraph 53:
'...for the following reasons not only am I not persuaded that Holman J's analysis was wrong but I am satisfied that as a matter of construction of regulation 12 it expresses the correct approach.'
Eyre J in Total Sprint explained his reasoning as follows, from paragraphs 54 to 63:
'When interpreting legislation the court seeks to ascertain the objective meaning of the words used when read in context. The relevant context is primarily that of the statute or other instrument in which the words appear when that is read as a whole ...Other legislation can form part of the context in which the language of a particular instrument is to be interpreted but the primary context remains the balance of the statute or instrument in question.
It follows that my focus must be on regulation 12 read as a whole and seen primarily in the context of the 1989 Regulations albeit as I will explain below account is also to be taken of the factual context.
[Counsel for the alleged ratepayer] contended that the terms of section 97(1) and of regulation 12(2) were materially different...That contention is simply untenable. A summons "directing" a person to appear and a summons "requiring" a person to appear are materially the same particularly as in each case the person is to appear in order "to show why he has not paid".
The next point made by [counsel for the alleged ratepayer] was that I should not have regard to the authorities as to section 97(1) because the 1988 Act was not a consolidating act and there were differences of wording between the provisions in the 1967 Act and in the 1989 Regulations.... In my judgement... it is ... legitimate to have regard to the decisions in Ratford and Tomlin. I have already explained that the relevant words are materially the same. What is also significant is that the factual context is the same namely the liability for rates. It follows that Ratford and Tomlin are Court of Appeal decisions as to the effect of those words in that factual context. It then becomes necessary to consider whether the language of regulation 12 taken as a whole and seen in the context of the 1989 Regulations as a whole means that the context of the words when used in those provisions is such that they are to have a different meaning for the purposes of those regulations from that which they had for the purposes and in the context of the 1967 Act.
It is in this respect that [counsel for the alleged ratepayer] laid particular emphasis on regulation 12(5). He said that the reference there to the court making the order "if it is satisfied that the sum has become payable by the defendant" meant as a matter of basic principle that the onus was on the rating authority as the party seeking an order to satisfy the court of that matter. [Counsel for the alleged ratepayer] said that regulation 12(2) was to be read in the light of and subject to regulation 12(5). He went so far as to say that regulation 12(5) "imposes an express obligation on a local authority to prove that the sum has become payable on the balance of probabilities".
I do not accept that regulation 12(5) has the effect for which [counsel for the alleged ratepayer] contended. The reference there to the court making an order if it is satisfied does not necessarily mean that the court has to be caused to be satisfied by the Council. It is right that the legal burden of establishing a proposition is normally on the party seeking to rely on that proposition. However, it is to be remembered that the Ratford approach is concerned with the question of which party bears the evidential burden of raising the issue of rateable occupation. Moreover, just as regulation 12(2) has to be interpreted having regard to regulation 12(5) so the latter has to be interpreted having regard to the former. Regulation 12 has to be read as a whole with effect being given to all its provisions. In that exercise the starting point is that the defendant is before the court because of a summons requiring the defendant "to show why he has not paid the sum which is outstanding". This sets the context for the proceedings and is the reason why there is to be a hearing. The words of regulation 12(2) can only sensibly be read as imposing at least an evidential burden on the person summonsed. The meaning and effect which [counsel for the alleged ratepayer] sought to give to regulation 12(5) would deprive the words of regulation 12(2) of their clear and natural meaning.
[Counsel for the Billing Authority] was right to say that regulation 12(5) can properly be read as explaining what happens when the court is satisfied that the sum is payable without laying down the process by which it is to be satisfied still less stipulating who bears the burden of satisfying the court. [Counsel for the Billing Authority] was also right to say that while regulation 12(5) does impose an express obligation it imposes that obligation on the court and not the rating authority. The express obligation set out in regulation 12(5) is an obligation on the court to make the order once it is satisfied that the sum has become payable and is unpaid.
I find that on a natural reading of the language used and even without having regard to Ratford the effect of regulation 12(2) is that the person summonsed bears the burden (at least at the evidential level) of showing a good reason for nonpayment and so of showing that such person was not in rateable occupation of the premises in question. The presence of regulation 12(5) does not lead to a different conclusion. Regulation 12(2) does expressly place the burden of showing why he has not paid on the person to be summonsed. Regulation 12(5) is to be read in the context of that and if it was intended to have the effect of providing that such person did not have that burden then one would expect that to be stated expressly and clearly. Moreover, on this interpretation regulation 12(5) still makes complete sense when read as indicating that the court has no discretion once satisfaction has been established and/or as explaining the consequences of such satisfaction.
That conclusion is supported by the factual context of the 1989 Regulations. It is here that the points made in Ratford and Tomlin are of particular note. In those cases the Court of Appeal indicated that the putative ratepayer's special opportunity for knowledge and the rating authority's limited scope for knowledge as to occupation of the premises were material to the interpretation of section 97. Those considerations remain present and are part of the factual context of the 1989 Regulations. Account is similarly to be taken of them when interpreting those regulations.
A further, albeit subsidiary, point is the use in both regulation 12(2) and regulation 12(5) of the words "the sum". In regulation 12(2) those words refer back to "the amount which has fallen due" and "the amount stated in the reminder notice" in regulation 12(1) – indicating that those amounts are both seen as "the sum which is outstanding". The reference to "the sum" in regulation 12(5) must be a reference to the same sum. [Counsel for the alleged ratepayer] was driven to submitting that the references using the same words in the same regulation were to different things. That submission was not supported by the language of the regulation and was untenable. The conclusion that the words "the sum" in both sub-regulations apply to the same amount supports the view that the procedure for satisfaction of the court for the purposes of regulation 12(5) is that laid down in regulation 12(2) with the defendant having to show why he has not paid.'
Eyre J's full reasoning is set out in a footnote[8]. Eyre J in Total Sprint went on to state that, accordingly, the 1st instance '...the District Judge's approach to the burden of proof derived as it was from Ratford and Pall Mall Investments was correct' (paragraph 64). And 'That approach as set out at [260] – [262] in his reasons; at [44] in the stated case; and in the seventh of the questions was an admirably succinct and well-structured summary of the effect of the legislation and of the authorities.' (paragraph 64)[9]. Paragraphs 260-262 are not quoted in Eyre J's judgment, but paragraph 44 of the Case Stated is. However, paragraph 44 of the Case Stated summarised more than paragraphs 260-262 of the 1st instance judgment. At paragraph 41 of Total Sprint, Eyre J said 'The reasoning and conclusions set out at [246] – [262] of the reasons were accurately summarised thus at [44] of the case stated:' Quite which bit of paragraph 44 is from 260-262 of the 1st instance judgment is left unclear. To speculate, it seems likely it is (b) to (d) of paragraph 44 of the Case Stated, namely:
'b. The burden of proof in relation to the issue of rateable occupation is an evidential burden of proof which is fixed to the person summonsed. The "shifting" or "swinging" burden of proof referred to in the authorities considered in Pall Mall Investments did not describe the burden of proof in relation to the issue of rateable occupation as moving from the person summonsed to the billing authority or vice versa. The "shifting" burden referred to in Tomlin was a description of the burden of proof held by the person summonsed (i.e. in relation to the issue of rateable occupation) arising only once the billing authority had discharged its burden of proof as to the matters described above. The "swinging" burden referred to in the fourth proposition of law in Ratford described the balance of probabilities, in that as one party adduced evidence in relation to an issue, then so the other party must adduce more evidence in relation to that issue.
c. If there was evidence having any weight adduced by either party in relation to the issue of rateable occupation, the court would determine the issue on a balance of probabilities.
d. If there was no evidence having any weight adduced by either party in relation to the issue of rateable occupation (or if the evidence adduced by both parties carried equal weight), then the person summonsed would fail on a balance of probabilities to discharge the burden of proof in relation to that issue.'
Later, while discussing the issue of whether the proceedings against Total Sprint were a collateral attack on the liability orders the Billing Authority already had against another entity, Eyre J said at paragraph 91:
'The [Billing Authority] had to have fulfilled the formal criteria and to have rational grounds for believing that Total Sprint was or might be in rateable occupation of the Units but then the evidential burden passed to Total Sprint to show it was not in such occupation. In seeking the issuing of the summons the [Billing Authority] was doing no more than asserting that the formal criteria had been met and that it had the requisite belief.'
Conclusion
On an application by way of Complaint, the initial burden is on the Billing Authority to establish 3 initial requirements: (a) the rate in question has been properly set (multiplier made); (b) the rates have been duly demanded by the Billing Authority from the alleged ratepayer (in proper form and reminders sent in proper form); and (c) it has not been paid (see Honda and Fallows).
Once the Billing Authority establishes the 3 initial requirements, the onus of proof will be on the alleged ratepayer, to show why he is not liable for the Business Rates sought in the Complaint. Whether the alleged ratepayer manages to present sufficient evidence to ‘swing’ the onus back over to the Billing Authority will be a matter of what weight the Magistrates Court properly place on evidence pointing away from the alleged ratepayer being liable (typically evidence tendered by the alleged ratepayer). If successful, the onus will have ‘swung’ over to the Billing Authority, who's Complaint is liable to be dismissed unless it then produces evidence to shift the onus back over. In principle, this onus of proof may swing back and forth between the Billing Authority and the alleged ratepayer any number of times during the progress of a Complaint This 'swinging' may carry on through case preparation and into oral evidence, but will end at the close of evidence/judgment. In practice, whether the onus does swing at all, or how may times, will depend on what evidence is produced, what it tends to show, and what weight can properly be attributed to it. Another way of putting this is that, once the Billing Authority establishes the 3 initial requirements, the 'evidential burden' will be on the alleged ratepayer to show that they have not failed to pay/are not obliged to pay. Where the alleged ratepayer produces sufficient evidence to discharge that evidential burden, that evidential[10] burden swings over to the Billing Authority, to establish (on the balances of probabilities) that the alleged ratepayer has failed to pay/ought to have paid.
SIMON HILL © 2020-2024
BARRISTER
33 BEDFORD ROW
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[1]There are some constraints on a Billing Authority’s ability to lawfully apply by way of complaint to a justice of the peace under r.12(2) of Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations (SI 1989/1058). R.12(1) and (3) provide:
‘(1) Subject to paragraph (3), if an amount which has fallen due under regulation 8(2) in consequence of such a failure as is mentioned in sub-paragraph (a) of that provision is wholly or partly unpaid, or (in a case where a reminder notice is required under regulation 11) the amount stated in the reminder notice is wholly or partly unpaid at the expiry of the period of 7 days beginning with the day on which the notice was served, the billing authority may, in accordance with paragraph (2), apply to a magistrates' court for an order against the person by whom it is payable.
…
(3) Section 127(1) of the Magistrates' Courts Act 1980 does not apply to such an application; but no application may be instituted in respect of a sum after the period of 6 years beginning with the day on which it became due under Part II.’
[2a] Requesting a summons be issued by the court, against the alleged ratepayer/Defendant to the complaint, should be accompanied by any information required from the Billing Authority, to fulfil its obligation/duty of candour.
[2b]The General Rate Act 1967 was repealed by the Local Government Finance Act 1988, ss 117, 149, Sch 13, Pt I; for savings see SI 1990/777 and SI 1990/434, reg 3.
[2c] It is possible to go back, before Ratford & Another v Northavon District Council [1986] RA 137, to a case called County and Nimbus Estates Ltd. v Ealing Borough Council [1979] Rating Appeals 63, a Divisional Court case, on the application of the General Rate Act 1967 (now, effectively, obsolete). The judgment of the court was given by Drake J, who said at page 66:
'In my judgment, the passage in Ryde on Rating at page 861 correctly states the position when it says: “… if the rate is good on the face of it, and has been duly made and published, and there is jurisdiction to make a rate on the person charged, the duty of the justices becomes ministerial."'
In a similar vein, though under the Local Government Finance Act 1988/Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations (SI 1989/1058) (the ‘1989 Regulations’), Auld J in the case of Hackney Borough Council v Mott and Fairman [1994] Rating Appeals 381 said, at (4)/388:
'the magistrates' court was bound to make a liability order under Reg 12(5) of the 1989 Regulations once the court was satisfied, as it should have been, from the entry in the list that the sum was payable by the respondents and had not been paid.'
[3] Section 97(1) of General Rate Act 1967, so far as material, provides:
'The proceedings for the issue of a warrant of distress … may be instituted by making complaint before a justice of the peace and applying for a summons requiring the person named in the complaint to appear before a magistrates' court to show why he has not paid the rate specified in the complaint.’
Slade LJ at 364A, explains how liability to pay rates arose:
'Under s 16 of the General Rate Act 1967 the liability to be assessed for rates in respect of a hereditament falls on 'every occupier of property', whoever he may be. Section 96(1) of the Act, so far as material, provides:
'… if any person fails to pay any sum legally assessed on and due from him in respect of a rate for seven days after it has been legally demanded of him, the payment of that sum may … be enforced by distress … under warrant issued by a magistrates' court … ‘'
[4]In North Somerset DC v Honda Motor Europe Ltd [2010] EWHC 1505 (QB), Burnett J said, at paragraph 135:
'The starting point is the judgment of Slade LJ in Ratford & Another v Northavon District Council [1986] RA 137 . He considered the burden of proof in rate recovery proceedings where the issue was rateable occupation. A demand can only be served on someone whom the rating authority has reasonable grounds for believing is in rateable occupation. At enforcement proceedings the rating authority has to show that the rate in question has been duly made and published; that it has been duly demanded and has not been paid. If these three things are shown, the burden then shifts to the defendant to show cause why the demand has not been paid. The burden of proof is on the balance of probabilities – see page 149.'
[5]In Ratford v Northavon District Council [1987] 1 QB 357, Slade LJ said, at 378D:
(1) I respectfully agree with the justices and with the judge that the council, on receiving the letter of 6 April 1983, were justified in applying for a summons against the receivers under s 97(1) of the 1967 Act. The contents of this letter gave them reasonable grounds for believing that the receivers might be in rateable occupation of the premises, since they were within the category of those who might prima facie be liable. As appears from the authorities cited above, it is possible for a receiver to be appointed on terms which involve a change of rateable occupation (see for example the National Provincial Bank case 85 LJ Ch 106 at 112 per Astbury J).
(2) At the first hearing before the justices, the council having shown that the rate in question had been duly made and published, that it had been duly demanded from the receivers and that it had not been paid, the burden fell in the first instance on the receivers to show sufficient cause for not having paid the sum demanded.
(3) In my judgment, however, the receivers prima facie discharged this burden by showing that they had been appointed on terms which, though empowering them to take possession of the company's premises and to carry on and manage its business, did not oblige them to take possession, and further provided that in carrying out their activities they should be deemed to be the agents of the company.
(4) This much having been shown, the onus, in my opinion, shifted to the council to show that the receivers had dispossessed the company, or, to put it another way, to show that the quality of any possession of the premises which the receivers might have enjoyed was not that of mere agents. For possession held by a person in his capacity as agent is in law the possession of his principal.
(5) The agreed statement of facts placed before the justices did no more than show that the receivers had had representatives on the property from time to time during their receivership, that they had managed the company's business and authorised the payment of various outgoings, that the company had at their direction disposed of the company's assets, including, eventually, the leasehold interest in the premises, and that during the receivership they had had control of those of the company's assets covered by the debenture. However, in my opinion, the decisions in Re Marriage Neave & Co (a decision of this court), and in the National Provincial Bank case and Gyton v Palmour show that these facts are quite consistent with the company remaining in legal possession and rateable occupation of the premises.
In my opinion, therefore, there was no sufficient evidence before the justices to justify a finding that the receivers had dispossessed the company, which had unquestionably been in possession and rateable occupation of the premises up to the date of their appointment.'
[6] In Pall Mall Investments v Camden LBC [2013] EWHC 459 (Admin), Holman J said, at paragraph 21:
'He places particular reliance upon the judgment of Neuberger J in National Westminster Bank PLC v Rosemary Doreen Jones and others [2001] 1 BCLC 98. [PMIL's solicitor advocate] places emphasis upon paragraphs 36, 37 and 46 of that judgment, but the essence of the matter is encapsulated in paragraph 59 under the heading “Conclusion on Sham”. Neuberger J says:
In one sense, lawyers find it difficult to grapple with the concept of sham, presumably on the basis that, subject to questions of mistake … there is a very strong presumption indeed that parties intend to be bound by the provisions of agreements into which they enter, and, even more, intend the agreements they enter into to take effect … A sham provision or agreement is simply a provision or agreement which the parties do not really intend to be effective, but have merely entered into for the purpose of leading the court or a third party to believe that it is to be effective. Because a finding of sham carries with it a finding of dishonesty, because innocent third parties may often rely upon the genuineness of a provision or an agreement, and because the court places great weight on the existence and provisions of a formally signed document, there is a strong and natural presumption against holding a provision or a document a sham.
[7] Also, Eyre J in Total Sprint Ltd v Swale BC [2023] EWHC 2968 (Admin); [2024] 1 WLR 1687 said, at paragraph 53:
'[Counsel for the ratepayer] correctly noted that the proper construction of regulation 12 did not appear to have been in issue before Holman J. This would be a factor which would provide some support for taking a different approach from that of Holman J if I were persuaded that his approach was wrong.'
[8] Explaining why Holman J's analysis and approach was the correct approach to the burden of proof in relation to reg.12 of the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 Pt III, Eyre J in Total Sprint Ltd v Swale BC [2023] EWHC 2968 (Admin); [2024] 1 WLR 1687 said, at paragraphs 54 to 63:
'54. When interpreting legislation the court seeks to ascertain the objective meaning of the words used when read in context. The relevant context is primarily that of the statute or other instrument in which the words appear when that is read as a whole (see R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3, [2022] 2 WLR 343 per Lord Hodge at [29] – [31] and per Lady Arden at [59]). Other legislation can form part of the context in which the language of a particular instrument is to be interpreted but the primary context remains the balance of the statute or instrument in question.
55. It follows that my focus must be on regulation 12 read as a whole and seen primarily in the context of the 1989 Regulations albeit as I will explain below account is also to be taken of the factual context.
56. [Counsel for the alleged ratepayer] contended that the terms of section 97(1) and of regulation 12(2) were materially different. He said that there was a distinction between a summons "requiring the person named in the complaint to appear before a magistrates' court" (the wording of section 97(1) ) and a summons "directed to that person to appear before the court" (the wording of regulation 12(2)). [Counsel for the alleged ratepayer] submitted that the latter formulation was in some way more akin to providing information to the person summonsed. That contention is simply untenable. A summons "directing" a person to appear and a summons "requiring" a person to appear are materially the same particularly as in each case the person is to appear in order "to show why he has not paid".
57. The next point made by [counsel for the alleged ratepayer] was that I should not have regard to the authorities as to section 97(1) because the 1988 Act was not a consolidating act and there were differences of wording between the provisions in the 1967 Act and in the 1989 Regulations. In the latter regard [counsel for the alleged ratepayer] placed particular emphasis on the presence of regulation 12(5). He urged me to consider the language of regulation 12 without reference to the approach in Ratford . In response [counsel for the Billing Authority] submitted that the term "to appear before the court to show why he has not paid" was a term which the authorities had found to have a particular meaning in the rating context and that the use of that term in regulation 12 was to be seen as the adoption and application of that established meaning. In my judgement even if matters do not go as far in that regard as [counsel for the Billing Authority] submitted it is nonetheless legitimate to have regard to the decisions in Ratford and Tomlin . I have already explained that the relevant words are materially the same. What is also significant is that the factual context is the same namely the liability for rates. It follows that Ratford and Tomlin are Court of Appeal decisions as to the effect of those words in that factual context. It then becomes necessary to consider whether the language of regulation 12 taken as a whole and seen in the context of the 1989 Regulations as a whole means that the context of the words when used in those provisions is such that they are to have a different meaning for the purposes of those regulations from that which they had for the purposes and in the context of the 1967 Act .
58. It is in this respect that [counsel for the alleged ratepayer] laid particular emphasis on regulation 12(5). He said that the reference there to the court making the order "if it is satisfied that the sum has become payable by the defendant" meant as a matter of basic principle that the onus was on the rating authority as the party seeking an order to satisfy the court of that matter. [Counsel for the alleged ratepayer] said that regulation 12(2) was to be read in the light of and subject to regulation 12(5). He went so far as to say that regulation 12(5) "imposes an express obligation on a local authority to prove that the sum has become payable on the balance of probabilities".
59. I do not accept that regulation 12(5) has the effect for which [counsel for the alleged ratepayer] contended. The reference there to the court making an order if it is satisfied does not necessarily mean that the court has to be caused to be satisfied by the Council. It is right that the legal burden of establishing a proposition is normally on the party seeking to rely on that proposition. However, it is to be remembered that the Ratford approach is concerned with the question of which party bears the evidential burden of raising the issue of rateable occupation. Moreover, just as regulation 12(2) has to be interpreted having regard to regulation 12(5) so the latter has to be interpreted having regard to the former. Regulation 12 has to be read as a whole with effect being given to all its provisions. In that exercise the starting point is that the defendant is before the court because of a summons requiring the defendant "to show why he has not paid the sum which is outstanding". This sets the context for the proceedings and is the reason why there is to be a hearing. The words of regulation 12(2) can only sensibly be read as imposing at least an evidential burden on the person summonsed. The meaning and effect which [counsel for the alleged ratepayer] sought to give to regulation 12(5) would deprive the words of regulation 12(2) of their clear and natural meaning.
60. [Counsel for the Billing Authority] was right to say that regulation 12(5) can properly be read as explaining what happens when the court is satisfied that the sum is payable without laying down the process by which it is to be satisfied still less stipulating who bears the burden of satisfying the court. [Counsel for the Billing Authority] was also right to say that while regulation 12(5) does impose an express obligation it imposes that obligation on the court and not the rating authority. The express obligation set out in regulation 12(5) is an obligation on the court to make the order once it is satisfied that the sum has become payable and is unpaid.
61. I find that on a natural reading of the language used and even without having regard to Ratford the effect of regulation 12(2) is that the person summonsed bears the burden (at least at the evidential level) of showing a good reason for nonpayment and so of showing that such person was not in rateable occupation of the premises in question. The presence of regulation 12(5) does not lead to a different conclusion. Regulation 12(2) does expressly place the burden of showing why he has not paid on the person to be summonsed. Regulation 12(5) is to be read in the context of that and if it was intended to have the effect of providing that such person did not have that burden then one would expect that to be stated expressly and clearly. Moreover, on this interpretation regulation 12(5) still makes complete sense when read as indicating that the court has no discretion once satisfaction has been established and/or as explaining the consequences of such satisfaction.
62. That conclusion is supported by the factual context of the 1989 Regulations. It is here that the points made in Ratford and Tomlin are of particular note. In those cases the Court of Appeal indicated that the putative ratepayer's special opportunity for knowledge and the rating authority's limited scope for knowledge as to occupation of the premises were material to the interpretation of section 97. Those considerations remain present and are part of the factual context of the 1989 Regulations. Account is similarly to be taken of them when interpreting those regulations.
63. A further, albeit subsidiary, point is the use in both regulation 12(2) and regulation 12(5) of the words "the sum". In regulation 12(2) those words refer back to "the amount which has fallen due" and "the amount stated in the reminder notice" in regulation 12(1) – indicating that those amounts are both seen as "the sum which is outstanding". The reference to "the sum" in regulation 12(5) must be a reference to the same sum. [Counsel for the alleged ratepayer] was driven to submitting that the references using the same words in the same regulation were to different things. That submission was not supported by the language of the regulation and was untenable. The conclusion that the words "the sum" in both sub-regulations apply to the same amount supports the view that the procedure for satisfaction of the court for the purposes of regulation 12(5) is that laid down in regulation 12(2) with the defendant having to show why he has not paid.
64. Accordingly, the District Judge's approach to the burden of proof derived as it was from Ratford and Pall Mall Investments was correct. That approach as set out at [260] – [262] in his reasons; at [44] in the stated case; and in the seventh of the questions was an admirably succinct and well-structured summary of the effect of the legislation and of the authorities.'
[9] Eyre J in Total Sprint Ltd v Swale BC [2023] EWHC 2968 (Admin); [2024] 1 WLR 1687 quoted question 7 from the Case Stated for an opinion of the High Court, at paragraph 43:
'(7) Is the approach to the burden of proof for the purposes of regulation 12 of the 1989 Regulations as follows:
a. the billing authority bears the burden of proving that (a) the rate in question had been duly made and published, (b) the rate had been duly demanded from the person summonsed, and (c) the rate had not been paid;
b. the person summonsed bears the burden of proving that they had not been in rateable occupation of the property during the period alleged by the billing authority;
c. those burdens are evidential burdens of proof and they are fixed to the party holding them;
d. once the billing authority has discharged its burden of proof, there is no requirement on it to establish a prima facie case of rateable occupation, or to do sufficient to raise the issue of rateable occupation, before the burden of proof on the person summonsed arises in relation to that issue;
e. whilst the billing authority must have reasonable grounds believing that the person summonsed is in rateable occupation, it does not need to prove them before a magistrates' court in an application to obtain a liability order; and
f. any challenge to the application for the summons by the billing authority, and/or the continuing by the billing authority of the application for the liability order, on the basis of a challenge to the billing authority's grounds for believing the person summonsed to be in rateable occupation of the property, is by judicial review;
g. the references to a "swinging" and "shifting" burden of proof in Ratford and Tomlin (as applied to reg.12 in Pall Mall Investments ) are not to be understood as describing movement of the burden of proof in relation to the issue of rateable occupation from the person summonsed to the billing authority, or vice versa;
h. where there was evidence carrying any weight in relation to the issue of rateable occupation, the court should determine the issue on a balance of probabilities; and
i. where there was no evidence carrying any weight in relation to that issue (or if the evidence that had been adduced by both parties carried equal weight), then the person summonsed would fail on a balance of probabilities to discharge the burden of proof in relation to the issue?'
[10] The wording, and in particular, the use of the word 'evidential' in 'evidential burden' here, comes from Holman J's judgment in Pall Mall Investments v Camden LBC [2013] EWHC 459 (Admin), at paragraph 19. However, labelling what is happening here, as the 'evidential burden' swinging or shifting from one party to another, is not unique, but is less common than the more traditional way of:
(1) using the following labels (from Phipson on Evidence (20th Ed) (Consolidated) Chapter 6 - Burden and Standard of Proof - Section 1 - Concepts (b) Persuasive and evidential burden, paragraph 6-02);
(a) 'evidential burden' - '...is sometimes referred to as “the duty of passing the judge”, or “the burden of adducing evidence”. It obliges the party on whom the burden rests to adduce sufficient evidence for the issue to go before the tribunal of fact.' (Phipson, para 6-02); as distinct from
(b) 'persuasive burdens' (persuasive burdens are also known as 'legal burdens' or 'probative burdens') - '...is the obligation imposed on a party by a rule of law to prove (or disprove) a fact in issue to the requisite standard of proof. A party who fails to discharge a persuasive burden placed on him to the requisite standard of proof will lose on the issue in question. The persuasive burden is often referred to as the burden of proof...' (Phipson, para 6-02)
(2) describing what is happening as (after the 3 initial requirements are estabished):
(a) the alleged ratepayer having the 'evidential burden' of showing cause why he has not paid sum demanded; And if that 'evidental burden' is discharged, then
(b) the Billing Authority having the 'persuasive burden' of showing that the alleged ratepayer failed to pay what was duly payable from the alleged ratepayer, to the requisite standard of proof.
For the avoidance of doubt, the onus/burden of proof is different from the standard of proof. In enforcement of business rates cases through business rates liabilty orders, the requisite standard of proof is the balance of probabilities - that is, 'more likely than not' (51% or more).
It can be added that there are hints in Eyre J's judgment in Total Sprint Ltd v Swale BC [2023] EWHC 2968 (Admin); [2024] 1 WLR 1687 ('Total Spirit') about the lack of clarity about quite what meaning is being applied to 'evidential burden' (particularly at the stage after the alleged rateapyer discharges the evidential burden on it) Eyre J in Total Sprint said:
(1) 'The reference there to the court making an order if it is satisfied does not necessarily mean that the court has to be caused to be satisfied by the Council. It is right that the legal burden of establishing a proposition is normally on the party seeking to rely on that proposition. However, it is to be remembered that the Ratford approach is concerned with the question of which party bears the evidential burden of raising the issue of rateable occupation.' [bold added] (paragraph 59)
(2) 'the effect of regulation 12(2) is that the person summonsed bears the burden (at least at the evidential level) of showing a good reason for nonpayment' [bold added] (paragraph 61)
(3) 'The words of regulation 12(2) can only sensibly be read as imposing at least an evidential burden on the person summonsed' [bold added] (paragraph 56)
However, writing extra-judicially in an article 'Black marbles, blue buses and yellow submarines: an essay on the civil standard and burden of proof' in the Law Quarterly Review [2024] LQR 570, Lord Leggart (Justice of the Supreme Court), under the heading '3. The function of the burden of proof', said (591-592):
'[Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 W.L.R. 948; [1985] 2 All E.R. 712.] and the line of Court of Appeal cases starting with [Morris v London Iron & Steel Co [1988] Q.B. 493; [1987] 2 All E.R. 496] show that the function of the burden of proof is not (or at least not primarily) to cater for a theoretical situation where the probabilities on each side are adjudged to be precisely equal. Nor is it to offer an escape route for judges who find it difficult to make up their minds. It is to provide a rule of decision in cases where the evidence is inadequate to permit a fact-finding tribunal reasonably to make a positive finding either way on the balance of probabilities. There are cases in which, whether because the evidence has too many gaps or is too unclear or unreliable or is insufficiently specific, the tribunal does not have reasonable grounds on which to base a conclusion either that an alleged fact in issue is more likely than not to be true or that it is more likely than not to be false. In such cases deciding the issue on the burden of proof is, in Lord Brandon’s words, "the only just course" to take.
It is the only just course to take because we do not want judges to make findings of fact which are not rationally supported by evidence. If the evidence is inadequate to justify a decision one way or the other, then rather than make a decision for which there are no reasonable grounds it is better to fall back on a default rule which allocates the risk of such an outcome in advance to one or other party. That is the primary function of the rules which allocate the burden of proof. Those rules are rules of substantive law which identify the essential elements of a claim or defence and hence the party in whose favour a fact in issue must be found for the claim or defence to succeed. It is an efficient principle, and a just one, to place on the party which needs a finding in its favour in order to succeed on an issue the onus of ensuring that there is enough evidence and evidence of sufficient quality placed before the tribunal to enable the tribunal to make a finding. If such evidence is lacking, the issue will be decided automatically by default against the party which bears this burden of proof.'
Later, he said, at 594:
'The standard of proof concerns the degree of epistemic probability required to justify a factual finding. The burden of proof, on the other hand, concerns the adequacy of the evidence which forms the basis for this assessment.'
And later, he said, at 594:
'We do not expect courts to be infallible, but we expect them to reach factual conclusions which are rationally supported by evidence. Cases where the evidence is so inadequate as to make this task impossible are thankfully rare. But it is in such rare cases that, to maintain the court’s legitimacy, it is necessary to fall back on the rules that allocate the burden of proof.'
(the whole article is recommended reading)
If 'evidential burden' is a reference ot the 'burden of proof' then the 'evidential burden' in business rates liability order cases (merely) puts the risk of insufficient evidence for the Court to make any determination on a (primary) fact, on the ratepayer. In other words, it is in the interests of the ratepayer to ensure there is at least sufficient evidence for the Court to make a decision on whether a (primary) fact is established on the balance of probabilities or not - since if there is insufficient evidence, the Court can just find the burden of proof not discharged, which will be to the ratepayer's disadvantage (as no defence will be proved, on the balance of probabilities).