Decision Nº LRX 86 2011. Upper Tribunal (Lands Chamber), 26-10-2012
| Jurisdiction | UK Non-devolved |
| Judge | Mr Norman J Rose FRICSHis Honour Judge Gerald |
| Date | 26 October 2012 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LRX 86 2011 |
|
UPPER TRIBUNAL (LANDS CHAMBER) |
|
|
UT Neutral citation number: [2012] UKUT 374 (LC)
Case Number: LRX/86/2011
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
LANDLORD AND TENANT – service charges – Landlord and Tenant Act 1985 s20C – Leasehold Valuation Tribunal (Fees) (England) Regulations 2003 Regulation 9
IN THE MATTER OF AN APPEAL AGAINST A DECISION
OF A LEASEHOLD VALUATION TRIBUNAL FOR THE
LONDON RENT ASSESSMENT PANEL
BETWEEN ST JOHN’S WOOD LEASES LIMITED Appellantand
JOANN O’NEIL Respondent
Re: Flat 4,
Athena Court,
2 Finchley Road,
London,
NW8 6DP
Before: His Honour Judge Gerald and N J Rose FRICS
Sitting at 43-45 Bedford Square, London WC1B 3AS
on 6-7 September 2012
Cecily Crampin instructed by Butcher Burns LLP for the Appellant
The Respondent in person.
The following cases were referred to in this decision:
Iperion Investments Corporation v Broadwalk House Residents Limited [1995] 2 EGLR 47
The Tenants of Langford Court (Sherbani) v Doren Limited LRX/37/2000
Schilling v Canary Riverside Development PTE Limited LRX/26/2005
The Church Commissioners v Derdabi [2010] UKUT 380 (LC) LRX/29/2011
Roache v News Group Newspapers Limited [2003] 1 WLR 60
Lucie M v Worcestershire County Council and Evans [2002] EWHC 1292 (admin)
Flannery v Halifax Estate Agencies Ltd [2000] 1WLR 377
English v Emery Reimbold & Strick Limited [2002] 1WLR 2409
South Buckinghamshire DC v Porter (No 2) [2004] 1WLR 1953
DECISION
Introduction
-
The Appellant is the landlord of the block of 23 flats known as Athena Court, Finchley Road, London. The Respondent is the tenant of one of those flats. On 29th September 2010 she issued an application (the “Application”) for determination of her liability to pay and the reasonableness of the service charges demanded by the Appellant pursuant to sections 19 and 20 of the Landlord and Tenant Act 1985 (“the 1985 Act”).
-
After a two day hearing on 14th and 15th February 2011 and a site visit on 8th March 2011, the Leasehold Valuation Tribunal (“the LVT”) on 3rd May 2011 issued its decision (the “Decision”). Having dealt with the substantive issues, none of which are challenged, the LVT ordered that the Appellant be disallowed from recovering its costs through the service charge and that it pay the Respondent her £500 court fees. It said
“81. The Applicant has also made an application under section 20C of the [1985] Act for an order that the Respondent be disentitled from recovering all or any of the costs it had incurred in responding to this matter. Having carefully considered all of the circumstances of this case, and, in particular, to the fact that the Applicant had, in the course of the hearing, obtained a number of significant concessions from the Respondent and the fact that she had overall succeeded on the majority of the issues, the Tribunal considered it was just and equitable to make an order preventing the Respondent from recovering any of the costs it had incurred in these proceedings.
“82. For the same reasons, the Tribunal also made an order requiring the Respondent to reimburse the Applicant the total fees of £500 paid by her to have this application issued and heard.”
-
Although not expressly stated, it is common ground that paragraph 81 was intended to benefit an additional 19 tenants named elsewhere, thereby preventing the Appellant from recovering costs through the service charge from any of those tenants. Reimbursement of the £500 fee was ordered under Regulation 9 of the Leasehold Valuation Tribunal (Fees) (England) Regulations 2003 (“the 2003 Regulations”)
-
The Appellant sought permission to appeal the section 20C order and the order to pay the Applicant her £500 fees. The application was refused by the LVT on 22nd June 2011 but permission was granted by the President on 8th September 2011 who ordered that the appeal be by way of review, so that the appeal is to be dealt with solely by reference to the evidence before the LVT. By section 31A(7)(a) of the 1985 Act this Tribunal “may exercise any power available to the leasehold valuation tribunal in relation to the original matter”.
The statutory provisions
-
Section 20C of the 1985 Act (as amended) so far as relevant provides that:
“(1) A tenant may make an application for an order that all or any of the costs incurred, or to be incurred, by the landlord in connection with proceedings before a… leasehold valuation tribunal… are not to be regarded as relevant costs to be taken into account in determining the amount of any service charge payable by the tenant or any other person or persons specified in the application.
“(3) The court or tribunal to which the application is made may make such order on the application as it considers just and equitable in the circumstances.”
-
Regulation 9 relating to the reimbursement of fees provides as follows:
“(1) … in relation to any proceedings in respect of which a fee is payable under these Regulations a tribunal may require any party to the proceedings to reimburse any other party to the proceedings for the whole or part of any fees paid by him in respect of the proceedings.”
Grounds of Appeal
-
Although expressed in a somewhat more complex and lengthy manner, the gravamen of the appeal is threefold. First, the LVT erred in law in approaching the issue of costs as one which follows the event rather than what is just and equitable in the circumstances. Secondly, that it was wrong to find that the Respondent had obtained a number of significant concessions or had “overall succeeded on the majority of issues”. Thirdly, that the LVT had failed to give any or any sufficient reasons for those findings and the exercise of its discretion in respect of section 20C and also repayment of the £500 LVT costs.
-
In so summarising the Appellant’s Grounds of Appeal we intend no discourtesy to the Appellant who has extensively and exhaustively set out its complaints about the Decision in its Statement of Case, Reply and Skeleton Argument or to the Respondent who has comprehensively replied in her Statement of Case and also in her briefer Skeleton Argument. In this decision, we focus upon what appear to us to be the central issues.
Principal arguments
-
The Appellant’s principal argument is that no reasonable tribunal could have concluded that the Respondent had obtained a number of significant concessions during the course of the hearing, or that she had overall succeeded on the majority of the issues. In any event it is unjust and inequitable that it should be deprived of the whole of its costs of dealing with all of the issues raised by the Respondent when they were largely part and parcel of discharging the management function and the Respondent was unsuccessful in respect of many of them.
-
The Respondent seeks to uphold the reasoning found in the Decision as well as to some extent adding to or supplementing those reasons or providing alternative reasons to support the Decision. One particular point was the Respondent’s submission that much of what was resolved, by determination or agreement, should have been resolved well before the Application thereby justifying the Decision.
Relevant authorities – section 20C
-
In Iperion Investments Corporation v Broadwalk House Residents Limited [1995] 2 EGLR 47 (CA) Peter Gibson LJ referred to section 19 of the 1985 Act (which he said “prevents a landlord from recovering so much of a service charge as consists of costs unreasonably incurred”) and section 20C (“which goes further”) and then said at 49F:
“Thus it is apparent that the court has a discretion to direct that litigation costs be excluded from a service charge, even if the costs have passed the test of section 19 and have been reasonably incurred. The obvious circumstances which Parliament must be taken to have had in mind in enacting section 20C is a case where the tenant has been successful in litigation against the landlord and yet the costs of the proceedings are within the service charge recoverable from the tenant.”
And at 49H:
“To my mind, it is unattractive that a tenant who has been substantially successful in litigation against his landlord and who has been told by the court that not merely need he pay no part of the...
To continue reading
Request your trial