Cory Brothers & Co. v “Mecca” (Owners of Turkish Steamship) [1897] AC 286

Response to this request is long overdue. By law, under all circumstances, North East Lincolnshire Council should have responded by now (details). You can complain by requesting an internal review.

Dear North East Lincolnshire Council,

The council relied on the case, "Devaynes v Noble (1816) 1 Mer 572", to argue that it was correct in allocating monies paid in respect of the taxpayer's current years council tax account to outstanding debt from a previous year which was subject to appeal.

The consequences were that the taxpayer was subject to unnecessary recovery action, additional costs, bailiff harassment and an inordinate amount of related injustice. The council successfully convinced the judge at the court hearing that its actions were justified. The council's witness statement in paragraphs 58 and 59 as follows:

https://www.scribd.com/doc/286074656/NEL...

" 58. The case of Devaynes V Noble 1816 merivale 529 (Claytons Case), it established the basic rule of 'first-in, first-out'. In further terms payments are presumed to be appropriated to debts in the order which the debts are incurred. If no election is made the earliest debts are paid first (NELC7).

59. It is the first item on the debit side of the account, that is discharged, or reduced, by the first item on the credit side. Devaynes V Noble 1816 merivale 529 *608 "

However, Clayton's Case has no relevance to Council Tax which clearly comprises of distinct sums between which a plain line of separation can be drawn (a demand notice is served each year).

Clayton's Case was referred to in the House of Lords in "Cory Brothers & Co. v “Mecca” (Owners of Turkish Steamship) [1897] AC 286" where the following was held;

“The rule in Clayton's Case (1 Mer. 572) that where there is an account current between parties, and payments are made without appropriation by either debtor or creditor, such payments are to be attributed to the earliest items in the account, does not apply to a case in which debts arise from distinct transactions which are not brought into a common account”

Was the council ignorant that the case law it relied on was irrelevant?

-or-

Did the council know that it was relying on irrelevant case law and confident that it could pull the wool over the eyes of the judge?

-or-

Is there some other explanation?

Yours faithfully,

Ching Smith

PPD - FOI, North East Lincolnshire Council

Dear Sir / Madam

 

Thank you for your information request which has been allocated reference
NELC/6838/1718. Based on the content of your correspondence, we determine
that this request is vexatious. Your correspondence is intended to raise
unfounded allegations against the Council, with no substance behind your
allegations, or intention to obtain information from North East
Lincolnshire Council. We also consider this correspondence to be part of a
concerted campaign aimed at hindering the Council's ability to undertake
the lawful collection of Council Tax.

 

Section 14 (1) of the Freedom of Information Act states that a public
authority is not obliged to comply with a request for information if that
request is vexatious. North East Lincolnshire Council will therefore not
be responding to this request.

 

In addition, It may be helpful if I explain that the Freedom of
Information Act (2000) gives individuals and organisations the right of
access to all types of recorded information held, at the time the request
is received, by public authorities such as North East Lincolnshire
Council. Section 84 of the Act states that in order for a request for
information to be handled as a Freedom of Information (FOI) request, it
must be for recorded information. For example, a Freedom of Information
request would be for a copy of a policy, rather than an explanation as to
why we have that policy in place. On occasion, North East Lincolnshire
Council receives requests that do not ask for recorded information, but
ask more general questions about, for example, a policy, opinion or a
decision. In this instance I am satisfied that your request falls outside
of the scope of the Freedom of Information Act as it is not a request for
recorded information but is a request for an explanation based upon your
interpretation of information.

 

If you disagree with the Council determining your request is vexatious you
have the right to request an internal review by the Council. If following
this you remain dissatisfied you may contact the Office of the Information
Commissioner. If you wish to request an internal review, please contact me
and I will make the necessary arrangements.

 

Yours sincerely on behalf of North East Lincolnshire Council

 

Feedback Officer

 

 

Dear North East Lincolnshire Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of North East Lincolnshire Council's handling of my FOI request 'Cory Brothers & Co. v “Mecca” (Owners of Turkish Steamship) [1897] AC 286'.

Thank you for informing me of my right to request an internal review by the Council. I would like to take that opportunity for the following reasons.

Firstly, in respect of the application of Section 14(1) of the Freedom of Information Act the Council has not submitted any evidence or arguments to support its assertion that the request was effectively an abuse of the rights provided by the legislation (see paragraph 42 Information Commissioner's Decision Notice, FS50592465). https://ico.org.uk/media/action-weve-tak...

There is no evidence in the response to demonstrate that my request is vexatious. It is merely stated that ‘your correspondence is intended to raise unfounded allegations against the Council, with no substance behind your allegations, or intention to obtain information from North East Lincolnshire Council’. In the absence of evidence to support the council's claim it would not be entitled to rely upon Section 14(1) of the Freedom of Information Act to refuse to comply with this request.

Even though the council has not substantiated its claim that any allegations which might be insinuated are unfounded, it is not seen how it could. The allegations referred to in the response I must assume relate to the assertion regarding case law referred to in the request - i.e. that it was not relevant but was able regardless to persuade the judge otherwise.

The council can verify this itself (see URL below) which directly links to the relevant passage quoted from the House of Lords case i.e. "Cory Brothers & Co. v “Mecca” (Owners of Turkish Steamship) [1897] AC 286"

https://books.google.co.uk/books?id=kyst...

The representations in the link below, which I understand are held by the council, would give it no justification to assert that there have been unfounded allegations raised against the council (for example from para 62).

https://www.scribd.com/document/28772478...

“62. The Council relies on the case of Devaynes V Noble 1816 merivale 529 (“Clayton”) to support its assertion that its Council Tax processing system ‘allocates unspecified payments correctly’ (see WS paras 58-59). It argues that payments are presumed to be appropriated to debts in the order in which the debts are incurred and if no election is made the earliest debts are paid first, and cites from Clayton: “it is the first item on the debit side of the account, that is discharged, or reduced, by the first item on the credit side.”

63. The present issues however, can be distinguished from those arising in Clayton as that concerned the distribution of monies between parties from a running account (bank) where all the sums paid in formed a single account. In the Defendant’s case, there are two distinct accounts in issue; one in respect of his current Council Tax liability and the other, relating to a previous year’s account where that liability, is in any event, disputed and has been since it was incurred in November 2012.

64. Sir W. Grant Master of the Rolls in his judgment in Clayton (as follows) implied it would not simply be reinventing existing authority.....”

Regarding the second point which suggests that the request, even if not considered vexatious, would be invalid under the freedom of Information act because it is asking a question, or asking for an explanation. Please refer to the guidance on the Information Commissioner’s website under the heading; “Can a question be a valid request?”. It is clearly the Commissioner’s view that not only a question may be a valid request but asking for an explanation also may be valid.

https://ico.org.uk/for-organisations/gui...

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/c...

Yours faithfully,

Ching Smith

PPD - FOI, North East Lincolnshire Council

Dear Sir / Madam

 

I am pleased to acknowledge your correspondence and wish to confirm that
an Internal Review of the handling of your Information Request
NELC/6838/1718 is to take place.

 

The Internal Review has been passed to the relevant department for
processing and you can expect your response within the 20 working day
limit. If it will take us longer than 20 working days to respond to you,
we will inform you of this and provide you with the expected date for
receiving a response.

 

Further information about how we will deal with your Freedom of
Information requests is available on our website at:
[1]https://www.nelincs.gov.uk/council-infor....

 

Please feel free to contact me if you require any further information or
assistance quoting the reference number above.

 

Yours sincerely

 

North East Lincolnshire Council

 

 

 

PPD - FOI, North East Lincolnshire Council

Dear Sir / Madam

Further to your request an Internal Review has taken place into North East
Lincolnshire Council's handling of your information
request NELC/6838/1718, concerning council tax payments.

I have reviewed the response provided to you and the handling of your
request in accordance with the Freedom of Information Act and find that
the wording and focus of your request clearly demonstrates it is vexatious
in nature. The wording of the request suggests that the Council has
committed perjury, which is an unfounded allegation. If you believe this
is the case then the Freedom of Information Act is not an appropriate
route to raise these allegations or to get them addressed. In addition the
Council considers this to be part of a concerted campaign aimed at
hindering the Council's ability to undertake the lawful collection of
Council Tax. Neither is it appropriate for the Council to comment on, or
advise on your interpretation of case law. Such an argument should be
presented to and determined by the courts.

I trust that this Internal Review answers your queries in relation to your
request, and clarifies that your request has been handled in accordance
with the Freedom of Information Act. 

If you remain dissatisfied with the Council’s handling of your request, or
the decision of the internal review you can request an independent review
by contacting the Information Commissioner's Office at Wycliffe House,
Water Lane, Wilmslow, Cheshire SK9 5AF.

Yours sincerely on behalf of North East Lincolnshire Council

Ian Hollingsworth

Information Governance and Complaints

 

show quoted sections

Dear PPD - FOI,

Thank you for your 8 November 2017 email in which you have stated:

"The wording of the request suggests that the Council has committed perjury, which is an unfounded allegation. If you believe this is the case then the Freedom of Information Act is not an appropriate route to raise these allegations or to get them addressed."

It is a member of the public's legal right to request whatever information he chooses from a public body. It is that public body's duty then to provide the information (if held), unless the information is exempt from disclose by any of the exemptions provided in part II of the Freedom of Information Act 2000. There is no exemption which can be applied by the public body specifically for the purpose of preventing it from being exposed for wrongdoing.

Yours sincerely,

Ching Smith

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