Decision Nº LRX 53 2014. Upper Tribunal (Lands Chamber), 17-09-2014
| Jurisdiction | UK Non-devolved |
| Judge | His Honour Judge Gerald |
| Date | 17 September 2014 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LRX 53 2014 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2014] UKUT 0420 (LC)
UTLC Case Number: LRX/53/2014
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
Right to manage – time – computation of time – contents of claim notice – specify date of intention to acquire right to manage to be “at least three months after that specified” under subsection s80(6) of the Commonhold and leasehold Reform Act 2002, section 80(7)
IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE
LEASEHOLD VALUATION TRIBUNAL
BETWEEN:
and
SINCLAIR GARDENS INVESTMENTS
(KENSINGTON) LIMITED
Respondent
Re: Windermere Court, 44 Park Road, Kenley, Surrey CR8 5AR
Before: His Honour Judge Nigel Gerald
Sitting at: 45 Bedford Square, London,WC1B 3AS
Determination on written representations
Dodds v Walker [1981] 2 All ER 609 (HL)
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The appellant appeals against the 5th March 2014 decision of the First-Tier Tribunal Property Chamber (Residential Property) (“FFT”) refusing its application for the appointment of a manager under the Commonhold and Leasehold Reform Act 2002 in respect of which the Deputy President of this Tribunal granted permission to appeal by way of review on 19th June 2014 following refusal of permission to appeal the FFT on 14th April 2014. There have been no written representations from the respondent.
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The facts can be shortly stated and are not in dispute. On 29th August 2013 the appellant RTM company gave a claim notice to the respondent under section 79(6) of the 2002 Act, specifying that the respondent must respond to it by giving a counter-notice by 30th September 2013, that it intended to acquire the right to manage the subject premises on 31st December 2013.
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Section 80 of the 2002 Act prescribes the contents of the claim notice. There are two material provisions for these purposes:
“80(6)
It [the claim notice] must specify a date, at least one month after the relevant date, by which each person who was given the notice under section 79(6) may respond to it by giving a counter-notice under section 84.
“80(7)
It [the claim notice] must specify a date, at least three months after that specified under subsection (6), on which the RTM company intends to acquire the right to manage the premises.”
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For these purposes, “the relevant date” is the 29th August 2013, when the claim notice was given, and the 30th September 2013 is the date specified under section 80(6). The dispute is whether or not the 31st December 2013 specified date satisfied the requirements of section 80(7) or whether the earliest date it could have been was 1st January 2014.
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The FFT held that the claim notice was invalid and so dismissed the application because the 1st January 2014 was the earliest date which could have been specified under section 80(7). Having cited and sought to apply the leading authority of Dodds v Walker [1981] 2 All ER 609 (HL), which I shall refer to in a moment, the kernel of the decision is to be found in paragraph 10:
“10. Accordingly the date of 30th September 2013 at s80(6) should have led to a date of not earlier than 1st January 2014 in s80(7), this being ‘a date, at least three months after that specified under subsection (6)’. The inclusion of the word ‘after’ means that the date must be after 31st December 2013, being three calendar months from the date contained at s80(6), ignoring that day in calculating the period.”
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It is the appellant’s case that this was wrong, and a misapplication of the corresponding date rule as expounded in Dodds v Walker where Lord Diplock said at 610f (only the first paragraph of which was cited and purportedly applied by the FFT):-
“My Lords, reference to a ‘month’ in a statute is to be understood as a calendar month. The Interpretation Act 1978 says so. It is also clear under a rule that has been consistently applied by courts since Lester v Garland (1808) 15 Ves 248 [1803-13] All ER Rep 436 that, in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or a specified number of months after the giving of a notice the general rule is that the period ends on the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given.
“The corresponding date rule is simple. It is easy of application. Except in a small minority of cases, of which the instant case is not an example, all that the calculator has to do is to mark in his diary the corresponding date in the appropriate subsequent month. Because the number of days in five months of the year is less than in the seven others the inevitable consequence of t4h corresponding date rule is that one month’s notice given in a 30-day month is one day shorter than one month’s notice given in a 31-deday month and is three days shorter if it is given in February. Corresponding variations in the length of notice reckoned in days occurs where the acquired noticed is a plurality of months.
“This simple general rule, which Cockburn CH in Freeman v Read (1863) 4 B&S 174 at 184, 122 ER 425 at 429 described as being ‘in accordance with common usage… and with the sense of mankind’, works perfectly well without need for any modification so long as there is in the month in which the notice expires a day which bears the same number as the day of the month on which the notice was given. Such was the instant case and such will be every other case except for notices given on the 31st of a 31-day month and expiring in a 30 day month or in February, and notices expiring in February and given on 30th or 29th (except in leap years) of any other month of the year. In these exceptional cases, the modification of the corresponding date rule that is called for is also well established:...
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