Tyson Fury Refused Permission to Appeal NDR Decision

Image: Severin Stalder/severinstalder/Unsplash
Image: Severin Stalder/severinstalder/Unsplash

Tyson Fury and two of his brothers have been unsuccessful in their attempt to appeal a Magistrates’ Court decision ordering them to pay Cheshire East Borough Council £99,200 in unpaid Non-Domestic Rates and legal costs in connection with their land at Styal, Wilmslow.

The Rates

There was no dispute that the land in question was in use as a car park serving nearby Manchester Airport. Cheshire East Borough Council served Tyson, Shane, and John O’Thiea Fury with demand notices for Non-Domestic Rates payable by virtue of the occupation of the land.  The Council commenced proceedings against the Furys following their failure to pay the outstanding rates.

The Furys disputed that they were involved in the running of the car park and claimed that their tenant, a company named Holiday Car Parks Manchester Limited was responsible for the rates.

Their case was rejected by the Council because of a lack of evidence of this Company having any involvement in the car park. The company had filed dormant accounts with Companies House which showed that it had no employees and was not trading.

The Council contended that it was not possible to identify who the actual occupier was and in those circumstances the Court was entitled to infer that Tyson and his brothers were in occupation because they owned the land in question.

Application to Adjourn

The Furys had been sporadically represented by a solicitor at various stages throughout the proceedings, who had intermittently claimed to be acting as a litigation friend. Their solicitor withdrew his assistance in an untimely manner, days before a trial was due to take place in December 2023.

Notwithstanding the fact that the Furys had the assistance of a solicitor at points during the case they failed to engage in the proceedings and did not serve any witness evidence in support of their defence to the Council’s claim.

The cessation of the Furys’ solicitor’s involvement in the case prompted an application to the Court to vacate the hearing. The application, which was made by a friend of the Fury family was rejected on grounds that he had no standing to intervene in the proceedings.

They were ultimately able to obtain a replacement solicitor and another application to vacate the hearing was presented to the trial judge. This second application was also unsuccessful however the judge did permit two witnesses, John Fury and Babikir Elmosbah (a director of Holiday Car Parks Manchester Limited) to give oral evidence during the course of the hearing.

The Trial

The trial of the case, which received widespread media coverage, was heard before District Judge John McGarva in the Chester Magistrates Court on 12 December 2023. Cheshire East Borough Council was represented by Alex Worthington, a Barrister and Associate Director at Greenhalgh Kerr Solicitors.

The evidence of Mr Elmosbah, who chose not to answer a number of questions on grounds of his privilege against self incrimination, was found to lack credibility. The Judge also concluded that John Fury was unable to assist him in determining the issues in the case due to the extent of his reliance upon a family friend (being the same individual who had made the original application to adjourn the hearing).

The judge accepted the Council’s case and entered a liability order in favour of the Council after finding that;

the respondents have not got anywhere near establishing a prima facie case that the company (Holiday Car Parks Manchester Limited) were in actual occupation of the premises

The Appeal

After conclusion of the trial the Furys applied to the District Judge who heard the case to state a case for the Opinion of the High Court on grounds that: 

  • The decision not to adjourn the hearing was unfair.
  • The judge had made an error in his approach to the application of the swinging burden of proof.

Failure to engage in the proceedings

The Judge ordered that the Furys had to personally attend Court to sign a recognisance in the sum of £5,000 before he would agree to state a case. Having not heard anything from the Furys or their solicitors the Judge warned that his decision would be reviewed if they did not comply with his direction within 14 days.

Despite this warning the Furys did not comply with the Judge’s request.  

Accordingly, on 28th February 2024 the Judge’s Judgment in respect of the Furys’ application to state a case was circulated.

The Judgment expressed concern at the Furys’ failure to engage with the original proceedings. Specifically, they had failed to attend Court for the trial of the case, nor did they provide any witness evidence in support of their defence. He was therefore satisfied that there was a strong likelihood of the Furys not engaging with the High Court if he agreed to state a case and their failure to respond to the request for a recognisance provided strong evidence that these concerns were well founded.

As a consequence of the Furys’ persistent failure to engage with the proceedings their application to state a case has been refused. Cheshire East Borough Council is at liberty to enforce the liability order that it has obtained.

Cheshire East Borough Council was represented by Nicky Kinnear, Associate Solicitor of Greenhalgh Kerr Solicitors.

Further information

If you would like further information regarding the case or require assistance with disputed liability order proceedings in the Magistrates Court please do not hesitate to contact Nicky Kinnear (Nicky.Kinnear@greenhalghkerr.com or Alex Worthington (Alex.Worthington@greenhalghkerr.com).

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