Freehold Properties 250 Ltd v Beverley Ann Field
| Jurisdiction | England & Wales |
| Judge | Mr Justice Marcus Smith |
| Judgment Date | 08 April 2020 |
| Neutral Citation | [2020] EWHC 792 (Ch) |
| Date | 08 April 2020 |
| Docket Number | Appeal No: 9BS0075C |
| Court | Chancery Division |
[2020] EWHC 792 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES IN BRISTOL
CHANCERY APPEALS (ChD)
On the appeal from the order of Mr Recorder Norman dated 19 July 2019 sitting at the County Court at Bristol
Bristol Civil Justice Centre
2 Redcliff Street
Redcliffe
Bristol BS1 6GR
(Court sitting remotely)
THE HONOURABLE Mr Justice Marcus Smith
Appeal No: 9BS0075C
Mr Jonathan Upton (instructed by Stevensons Solicitors) for the Appellant, Freehold Properties 250 Limited
Mr Ewan Paton and Mr Jay Jagasia (instructed by Barcan & Kirby LLP) for the Respondents, Ms Beverley Ann Field and 18 others
Hearing date: 27 March 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. The Judgment was handed down remotely at 4:15pm on 8 April 2020 (the deemed time of hand-down) by emailing the parties' representatives and submitting the Judgment for publication on BAILII.
A. INTRODUCTION
. The Respondents are all long leasehold owners of 11 properties of which the Appellant is the freeholder (the Properties). 1 The Properties are either purpose-built terraced or semi-detached properties situated on an estate in Bradley Stoke, Bristol. The Respondents seek to acquire the freehold title to the Properties from the Appellant under the Leasehold Reform Act 1967 (as amended from time-to-time, the 1967 Act). The Appellant contends that the Respondents have no right to acquire the freeholds pursuant to the 1967 Act.
. Although the Appellant took a number of points against the Respondents, by the time the dispute came before the judge at first instance, Mr Recorder Norman, the only point remaining was whether the Properties and/or the leases of those Properties fell within the scope of the 1967 Act.
. By a judgment handed down on 19 July 2019, after a trial that took place on 15 and 16 July 2019, Mr Recorder Norman determined:
(1) That the Properties and/or the leases of those Properties fell within the scope of the 1967 Act and that the Respondents were accordingly entitled to acquire the freehold title to the Properties from the Appellant. The Appellant was given permission to appeal this holding by Mr Recorder Norman. 2
(2) That – if he was wrong on this point – the “avoidance” provisions contained in section 23 of the 1967 Act were not engaged, so that if (contrary to his holding at paragraph 3(1) above) the Properties and/or the leases of those Properties fell outside the scope of the 1967 Act, the Respondents were not entitled to acquire the freehold title to the Properties. By their Respondents' notice, the Respondents contend that the Recorder was wrong to conclude that section 23 was not engaged and that the decision of the Recorder could be upheld on this alternative basis.
. This Judgment is structured as follows:
(1) The appeal was conducted remotely over the internet. I explain the circumstances of and basis for this in Section B below.
(2) In Section C below, I deal with certain procedural objections taken by the Respondents to the Appellant's appeal. The Respondents say that the Appellant (acting by counsel who did not appear below) is arguing a new legal point that was not taken before Mr Recorder Norman; that falls outside the scope of the permission to appeal given by Mr Recorder Norman; and that involves resiling from a concession made at trial by the Appellant.
(3) In Section D below, I describe the manner in which the Properties are held by the Respondents. The parties are agreed that for the purposes of the points here under consideration, the Properties are, in all material respects, identical. Accordingly, Mr Recorder Norman considered only one of the Properties for the purposes of his decision: 126 Great Meadow Road, Bradley Stoke, Bristol. I propose to follow the same course. Accordingly, Section D is confined to a description of this property, which I shall refer to as Number 126.
(4) In Section E below, I set out the relevant provisions of the 1967 Act and determine whether the leaseholders of Number 126 (the Seventh and Eighth Respondents, Ms Sandra Lovelock and Ms Valerie Rutherford) are entitled to acquire the freehold title to Number 126 from the Appellant. Thus, Section E deals with the point described in paragraph 3(1) above.
(5) In Section F below, I consider the point at paragraph 3(2) above, namely whether the “avoidance” provisions in section 23 of the 1967 Act are engaged. I do so on the assumption that the Seventh and Eighth Respondents are not otherwise entitled to acquire the freehold title to Number 126 from the Appellant.
(6) Finally, Section G sets out how I dispose of this appeal.
B. THE HEARING
. This hearing took place during the COVID-19 “coronavirus” pandemic. By my order of 24 March 2020:
(1) I ordered that the hearing take place by video-conference rather than at the Bristol Civil Justice Centre.
(2) I set out how electronic documents and authorities should be delivered to me remotely.
. The hearing was listed at the Bristol Civil Justice Centre as a remote hearing: media representatives were invited to attend in real-time by contacting my clerk to receive login details for the hearing. The hearing was video-recorded at my direction. In these circumstances, the hearing was a public hearing within the meaning of Practice Direction 51Y.
. I am very grateful to both parties and their representatives for facilitating, at relatively short notice, this hearing. Their assistance in compiling effective and workable electronic bundles, at short notice, was greatly apprecated by me. Argument lasted for a day on 27 March 2020, and I reserved my judgment. This is that judgment.
C. PROCEDURAL ISSUES: CAN THE APPELLANT PROPERLY ADVANCE THE POINTS BEING MADE ON APPEAL?
. The Respondents contend that the Appellant may not make the contentions that it advances in the grounds of appeal and in its written submissions. That is because the contentions advanced by the Appellant on this appeal are different to those that were made before Mr Recorder Norman.
. The Respondents advance three objections:
(1) First, that the point taken on appeal is a new point, not argued below.
(2) Secondly, it is an attempt to resile from a concession made by the Appellant at trial.
(3) Thirdly, that Mr Recorder Norman, when giving permission to appeal, did not give permission in relation to this point.
. I do not consider there to be anything in these three objections. It is important to note that the Appellant has simply re-framed its legal arguments, albeit, as will be seen, radically: there is no attempt by the Appellant to introduce new factual material. It is trite that whilst stringent conditions must be satisfied if a party to an appeal seeks to adduce new evidence, the same is not true when it comes to points of law. Provided no new evidence is required, an appellant is in general, and subject to certain limitations I articulate below, perfectly entitled to re-frame the argument in light of the judgment being appealed.
. To deal more specifically with the objections advanced by the Respondents:
(1) I consider that the Appellant is perfectly entitled to take what might be regarded as a new point, provided that the Appellant is simply re-framing the legal issues and not seeking to introduce new evidence. I stress that very different rules apply where an appellant wishes to adduce new factual material, but that is not this case.
(2) The Respondents contended that this was a case where the Appellant was doing far more than “re-frame” a legal argument. Specifically:
(a) The Appellant was abandoning the legal argument run before Mr Recorder Norman, which turned on whether Number 126 fell within or without section 2(2) of the 1967 Act. Certainly, it is true that the ambit of section 2(2) formed an essential argument before Mr Recorder Norman, whereas it was accepted before me that section 2(2) could not preclude the Seventh and Eighth Respondents from seeking to enfranchise their lease.
(b) Instead, before me the Appellant relied on the wording in section 1(1) of the 1967 Act – specifically, the words “a tenant of a leasehold house”, a phrase that it will be necessary to consider in detail below – to contend that Mr Recorder Norman's conclusion that the Respondents fell within the 1967 Act was wrong. Although, unsurprisingly, section 1(1) was referenced before Mr Recorder Norman, it cannot be suggested that the arguments in relation to section 1(1) that were run before me were run before Mr Recorder Norman. Mr Upton, counsel for the Appellant, did not seek to suggest otherwise.
In these circumstances, the Respondents contended, the Appellant was not re-framing the argument, but impermissibly substituting one legal argument for another.
(3) I consider that the Appellant was, even accepting the Respondents' characterisation of the change in the Appellant's position, 3 permitted to pursue this very different line of argument. It seems to me that provided: (i) the point is open to the Appellant on the pleadings; (ii) sufficiently wide permission to appeal has been given; and (iii) the Respondents were not taken by...
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