R Spaul v Upper Tribunal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leggatt |
| Judgment Date | 22 May 2013 |
| Neutral Citation | [2013] EWHC 2016 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2136/2012 |
| Date | 22 May 2013 |
[2013] EWHC 2016 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Leggatt
CO/2136/2012
Mr M Simeon Jones (instructed by Southfields) appeared on behalf of the Claimant
The Defendant did not appear and was not represented
Mr P Letman (instructed by Manches) appeared on behalf of the InterestedParty
This the hearing of a claim for judicial review of a decision of the Upper Tribunal (Lands Chamber) dated 25 October 2011, refusing permission to appeal from a decision of the Leasehold Valuation Tribunal.
The decision of the Leasehold Valuation Tribunal, which was given on 11 May 2011, related to a building at 103 Gloucester Place, London W1. The claimant, Mr Spaul, owns the leasehold of Flat C in that building. The management company for the building is a company called 103 Gloucester Place Limited, which I shall refer to as "the management company".
The proceedings before the Leasehold Valuation Tribunal consisted of an application made by the management company under section 27(a) of the Landlord and Tenant Act 1985 for a determination that proposed service charges for the year 2010/11 were payable by leaseholders. Those charges included costs to be incurred in connection with major works. Mr Spaul's case, in short, is that he did not receive consultation notices for the works, as required by section 20 of the 1985 Act, and did not receive notice of the application to the Leasehold Valuation Tribunal until on or about 23 June 2011, by which time the application had been determined.
Mr Spaul was refused permission to appeal by the Leasehold Valuation Tribunal and applied out of time to the Upper Tribunal (Lands Chamber). Mr Spaul contends that the Upper Tribunal acted unlawfully in refusing permission to appeal.
The present proceedings for judicial review began on 28 February 2012. On 16 May 2012, Miss Geraldine Andrews QC, sitting as a High Court Judge, granted permission to proceed with the claim and also granted an extension of time for bringing the claim for judicial review. The Upper Tribunal, as defendant, has not taken part in these proceedings but the management company and managing agent have done so, as interested parties, and have been represented at this hearing by counsel, Mr Letman.
It is common ground between the parties that, in accordance with the decision of Mr Justice Charles in R(HS)v Upper Tribunal [2012] EWHC 3126 (Admin), the second tier appeal criteria identified by the Supreme Court in R(Cart) v Upper Tribunal [2012] 1 AC 663, though relevant at the stage of granting permission to proceed, are not applicable at this hearing and that the claim is to be decided by applying the ordinary well established principles of judicial review.
For the purposes of this case, the approach of the Land Chamber of the Upper Tribunal to the grant of permission to appeal was governed by an amended version of the Lands Tribunal (Fees) Rules 1996. I have not been shown those rules, but their effect is explained in Interim Practice Directions and Guidance dated 13 May 2009, which is before the court. Paragraph 6.9 of that guidance states that:
"The Tribunal will grant permission to appeal only where it appears that there are reasonable grounds for concluding that the LVT may have been wrong for one or more of the reasons A to C."
Reasons A to C are listed in paragraph 6.7 of the guidance. For present purposes, the relevant reason is that "there was a substantial procedural defect."
Mr Spaul's case is that there was a substantial procedural defect in the proceedings before the Leasehold Valuation Tribunal in that he was not given notice of the application to that Tribunal, or of the subsequent hearing. Pursuant to regulation 5 of the Leasehold Valuation Tribunals (Procedure)(England) Regulations 2003, it is the responsibility of the Tribunal on receipt of an application to send a copy of the application and of the documents accompanying it to each person named as a respondent. Regulation 23 provides:
"Where any notice or other document is required under these regulations to be given or sent to a person by the Tribunal, it shall be sufficient compliance with the requirement if: (a) it is delivered or sent by prepaid post to that person at his usual or last known address."
The address to which the Tribunal will send the notice of the application and of any hearing is that provided by the applicant. In this case the management company, as applicant, gave Mr Spaul's address as being Flat C of the building. Mr Spaul says that he did not live at that address, which was occupied by a sub-tenant, and did not receive any relevant communications sent to that address including notice of the application. What is more, he says that the management company knew that Flat C was not his address, and knew that he had a different address and what that address was, but did not give that address in the application to the Leasehold Valuation Tribunal, which caused him not to receive notice of the application.
In refusing permission to appeal, the President of the Upper Tribunal, Mr George Bartlett QC, gave the following reasons:
"The applicant to the LVT was under no duty to give notice of the application to the present applicant. Under regulation 5.1 of the Leasehold Valuation Tribunals (Procedure)(England)Regulations (2003), it is for the LVT to send a copy of the application to a respondent. The duty of an applicant is to include in his application the name and the address of the respondent. There is nothing to indicate that the applicant to the LVT was aware both that Mr Spaul had an address other than Flat C, and what that address was, and that therefore that other address should have been entered on the application form."
It is Mr Spaul's case in these proceedings that the finding that there was "nothing to indicate" that the applicant to the LVT was aware both that Mr Spaul had an address other than Flat C, and what that address was, was erroneous — with the result that the decision to refuse permission to appeal was made on an incorrect factual basis.
Mr Spaul says that, had the Upper Tribunal properly reviewed his application for permission to appeal and the accompanying documents, it would have seen that there was evidence to show that the management company was aware that his address was not Flat C, but was an address at 209 Clapham Road, Stockwell, London SW9. Had the Upper Tribunal seen this evidence, then it would have been bound to decide that there were reasonable grounds for concluding that there was a substantial procedural defect in the proceedings before the Leasehold Valuation Tribunal.
To determine whether the claim for judicial review is well founded, it is therefore critical to consider the material submitted to the Upper Tribunal by Mr Spaul's solicitors in support of the application for permission to appeal. Regrettably, the evidence presented in these proceedings on that critical point has been wholly unsatisfactory and the manner in which the evidence has been presented has been utterly shambolic.
No witness statement has been adduced to indicate what the material submitted to the Upper Tribunal was, and neither the application for permission to appeal nor the documents said to have accompanied it were included in the bundle of documents prepared for this hearing. It was only yesterday, on the morning of the hearing itself, that some such documents were produced by Mr Spaul's solicitors and provided as additions to the bundle. The documents produced at that stage comprised: the application form itself; what was said to have been the covering letter dated 5 August 2011; two documents referred to in that letter described, respectively, as grounds of appeal and a case summary; and certain other documents which were said to have been exhibited to the case summary.
Due to the late start of this hearing yesterday, the case was adjourned overnight part heard. This morning further documents have been produced by Mr Spaul's solicitors. They include another letter, dated 28 July 2011, which turns out, it seems, to have been the letter which originally enclosed the application to the Upper Tribunal for permission to appeal. That letter states that it enclosed four sets of documents, described as follows:
1) Notice of appeal against a decision of the LVT.
2) Case summary.
3) Copies of exhibits.
4) Copy of the decision of the LVT.
5) A cheque in the sum of £350.
The letter then requests the...
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