Clarise Properties Ltd v Rees and Another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Sir Bernard Rix |
| Judgment Date | 29 July 2015 |
| Neutral Citation | [2015] EWCA Civ 1118 |
| Docket Number | C3/2014/4164 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2015 |
[2015] EWCA Civ 1118
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(LANDS CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lady Justice Arden
Sir Bernard Rix
C3/2014/4164
Mr M Loveday (instructed by SE Law Solicitors) appeared on behalf of the Applicant
The Respondent was not present and was not represented
(Approved by the court)
This is an application for permission to appeal by Clarise Property Limited for whom Mr Mark Loveday appears.
It is for permission to appeal from the decision of the Upper Tribunal Lands Chamber, Mr Martin Rodger QC, dated 21 November 2014 which was itself on appeal from a decision of the Land and Leasehold Valuation Tribunal for the Wales Rent Assessment Committee (which I will call LVT Wales) dated 12 May 2004.
Before the Upper Tribunal, the proposed Respondent to this appeal was represented by Mr Barry Denyer-Green of counsel. He has put in some written submissions which we have read and considered.
There are two issues on this application. First, does the second appeal test set out in the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 ("the 2008 Order") made pursuant to section 13(6) of the Tribunals, Courts and Enforcement Act 2007 apply in this case? Second, is the relevant test satisfied?
I will take the first issue. Does the second appeal test apply? An application for permission to appeal from a decision of the High Court or a County Court which was itself made on appeal is what we call a second appeal. Only the Court of Appeal can give permission for a second appeal. Under CPR 52.13 the Court of Appeal may only grant such permission where the appeal would raise an important point of principle or practice, if it has not yet been established, or there is some other compelling reason to hear it.
The basis on which we are hearing this application is that the appeal does not involve an important point of principle or practice. Rather, what is sought to be made the subject of grounds of appeal are points on the interpretation of a lease dated 7 June 1991. They are specific to leases in that form and it is said by the Upper Tribunal that there is no important point of principle. For my purposes, it is not necessary to express a view on whether there is an important point of principle or practice. I express no final view on that point.
The rule which I have described relating to applications for permission to appeal in second appeals applies to decisions of the Upper Tribunal which are on appeal: see the 2008 Order. The 2008 Order has two paragraphs. Paragraph 1 says that:
i. "This Order may be cited as the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 and shall come into force on 3rd November 2008."
Then paragraph 2 is the material provision. It replicates the second appeal test which applies for appeals from decisions of the High Court or the County Court which are on appeal to decisions of the Upper Tribunal which are on appeal. Accordingly, it reads:
i. "Permission to appeal to the Court of Appeal in England and Wales or leave to appeal to the Court of Appeal in Northern Ireland shall not be granted unless the Upper Tribunal or, where the Upper Tribunal refuses permission, the relevant appellate court, considers that —
(b) the proposed appeal would raise some important point of principle or practice; or
(c) there is some other compelling reason for the relevant appellate court to hear the appeal."
The route for an appeal from the Leasehold Valuation Tribunal (and I mean Leasehold Valuation Tribunals in England or Wales) was to the Lands Tribunal: see section 175 of the Commonhold and Leasehold Reform Act 2002.
By virtue of the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009, the functions of the Lands Tribunal have been transferred to the Upper Tribunal and the Lands Tribunal has been abolished.
The difficulty, however, is that the 2008 Order is made under section 13(6) of the 2007 Act, which only applies to appeals from the Upper Tribunal from the First-tier Tribunal. The First-tier Tribunal is a tribunal created by the 2007 Act.
To explain this point, it is easiest to start with section 13(2). This provides:
i. "Any party to a case has a right of appeal, subject to subsection (14)."
Sub-section (14) is not material in this case.
Section 13(1) confers a right of appeal on a point of law to the Court of Appeal of England and Wales. It provides:
i. "For the purposes of subsection (2) [which I have just read], the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision."
We are not concerned with excluded decisions.
The expression "relevant appellate court" is defined by sub-sections (11) to (13) of section 13, which are again easier to read by taking the last provision first. Sub-section (13) reads:
i. "In this section except subsection (11), "the relevant appellate court", as respects an appeal, means the court specified as respects that appeal by the Upper Tribunal under subsection (11)."
Sub-sections (11) and (12) then provide:
i. "(11) Before the Upper Tribunal decides an application made to it under subsection (4) [that is for permission], the Upper Tribunal must specify the court that is to be the relevant appellate court as respects the proposed appeal.
ii. (12) The court to be specified under subsection (11) in relation to a proposed appeal is whichever of the following courts appears to the Upper Tribunal to be the most appropriate —
(a) the Court of Appeal in England and Wales;
(b) the Court of Session;
(c) the Court of Appeal in Northern Ireland."
I have not seen a designation by the Upper Tribunal of this court for the purposes of section 13, but this court is clearly the most appropriate court for the appeal in this case.
So far, everything that I have read or said suggests that the appeal is a second appeal, but then we must go to sub-section (6). Sub-section (6) refers to sub-section (7) and that provides:
i. "An application falls within this subsection if the application...
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