Victory Place Management Company Ltd v (1) Florian Gunter Kuehn
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos |
| Judgment Date | 30 January 2018 |
| Neutral Citation | [2018] EWHC 132 (Ch) |
| Court | Chancery Division |
| Docket Number | Appeal Ref: CH-2017-000072 |
| Date | 30 January 2018 |
[2018] EWHC 132 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HH JUDGE CRYAN
The Rolls Building
The Royal Courts of Justice
7 Rolls Building, Fetter Lane,
London EC4A 1NL
Sir Geoffrey Vos, Chancellor of the High Court
Appeal Ref: CH-2017-000072
Mr David Phillips QC and Mr Simon Butler (instructed by J Garrard & Allen) appeared for the Appellants
Mr Christopher Heather QC and Mr Tim Hammond (instructed by Longmores Solicitors) appeared for the Respondent
Hearing date: 25 th January 2018
Sir Geoffrey Vos, Chancellor of the High Court:
Introduction
This is an appeal against the order of HHJ Cryan dated 27 th February 2017, whereby he granted the claimant/respondent, Victory Place Management Company Limited (“VPMC” or the “claimant”), an injunction requiring the defendants/appellants, Mr Florian Gunter Kuehn (“Mr Kuehn”) and Mrs Gabrielle Maria Kuehn (“Mrs Kuehn”) (together the “defendants”), to remove their dog from 18 Imperial House, 9 Victory Place, London E14 8BQ (the “Property”).
This appeal raises a single question about whether the judge was right to decide that VPMC had complied with its implied obligation to deal reasonably with a request by the defendants to be allowed to keep their dog in the Property, notwithstanding a covenant in their lease preventing them doing so without the written consent of VPMC. It was common ground that an obligation on VPMC should be implied into the covenant, at least, to the effect that it was obliged only to take into account matters that it ought to have taken into account and not to take into account matters which ought not to have been considered. This was the first limb or “process” requirement taken from Lord Greene MR's judgment in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 at pages 233–4 (“ Wednesbury”), and referred to by Baroness Hale in Braganza v. BP Shipping Ltd [2015] UKSC 17 at paragraph 24 (“ Braganza”).
VPMC is the management company for Victory Place which is a gated residential development in Limehouse comprising 146 flats or maisonettes (“Victory Place”) held on long leases, one of which the defendants hold. The members of VPMC are the lessees at Victory Place, who in turn elect its board of directors.
The defendants entered into a covenant (the “Covenant”) in Part III of the seventh schedule of their occupational underlease dated 16 th February 1998 (the “Lease”), which was expressed to be enforceable by parties including the freeholder (the “Lessor”) and VPMC and the lessees of the other properties in Victory Place, and provided as follows:-
“No dog bird cat or other animal or reptile shall be kept in the [Property] without the written consent of [VPMC]”.
VPMC originally cross-appealed on the ground that the judge had been wrong to hold that the second limb of the Wednesbury test was also to be implied, so that a further obligation on VPMC should be implied into the Covenant to the effect that it was obliged not to come to an unreasonable or irrational decision. Since, however, the defendants confined their argument on this appeal to their “process” complaint, I shall not need to determine that interesting question.
As Mr David Phillips QC, leading counsel for the defendants, put the issue in opening his appeal, the core question the court had to decide was whether the “no dogs” policy pursued by VPMC was an illegitimate predetermination to reach a particular decision (in which case he ought to succeed) or a legitimate predisposition towards a particular point of view (in which case he accepted that the appeal would fail). I shall return to this question in due course, but first I shall need to set out a little more of the background.
Factual background
The Lease was granted on 16 th February 1998 to the then-tenant for a term of two hundred years less three days. By clause 3(c) of the Lease, the tenant covenanted “with the Phase Management Company [now VPMC] to observe and perform the covenants … set out in Parts II and III of the Seventh Schedule”. The tenant also covenanted in a similar manner with the lessees of the other dwellings at Victory Place.
Various documents recording meetings of VPMC and emails between 2002 and 2014 show that VPMC was operating a strict “no pets” policy at Victory Place on the premise that that was the majority view of the lessees. This policy is described in detail in a statement made by Ms Ewa Jones, a director and chair of VPMC (“Ms Jones”), upon which Mr Phillips placed great reliance. I shall return to set out some short passages from that statement.
In 2014, Mr and Mrs Kuehn were contemplating purchasing the Property, or more formally taking an assignment of the Lease. They owned a young Yorkshire/Maltese terrier called Vinnie, and so asked the estate agent whether dogs were permitted in Victory Place, to which he replied that it would not be a problem. Nonetheless the judge found that Mr and Mrs Kuehn probably knew of the “no dogs” policy from the beginning, and this finding was not challenged.
On 29 th September 2014, Mr and Mrs Kuehn purchased the residue of the term granted by the Lease. They then embarked on substantial alterations to the Property, with a view to moving in once these were complete.
The board of VPMC arranged a meeting with Mr and Mrs Kuehn and their directly instructed counsel, Mr Simon Butler (“Mr Butler”) representing them, to discuss alterations to the Property. The meeting took place on 9 th September 2015. But Ms Jones's evidence was that, before the meeting, the board of VPMC had met to discuss the fact that the defendants owned a dog and had agreed to make it clear at the 9 th September 2015 meeting that “the policy of not allowing pets in [Victory Place] existed and was being enforced”, which was what Ms Jones went on to do.
At some stage, the defendants had made an application to the Lessor of Victory Place for consent to keep Vinnie at the Property, which was granted on 18 th September 2015.
On 19 th October 2015, Mr Butler emailed VPMC to seek consent to keep a dog at the Property in the following terms:-
“Please find attached notification from the landlord that my clients are permitted to keep a dog at the premises.
Can you please confirm that the Board [of VPMC] will give the same consent?
If the answer is in the negative, can you please confirm the reasons for refusing consent?
I look forward to hearing from you”.
On 19 th October 2015, VPMC made two responses by email, the first referring to the mention of the “no pets” policy at the 9 th September 2015 meeting, and the second attaching the Covenant and refusing consent in the following terms:-”
… [VPMC] has adopted a policy of not allowing pets on the premises. There is no need to justify this decision on an individual case by case basis. At any point in the past when approached with a question or request by any prospective buyers or existing leaseholders the Board's answer was always the same: Sorry, but not allowed. This policy stands firm and the Board would consider as breach of trust of all leaseholders who bought their flats with the understanding that pets are not allowed in Victory Place, if the Board were to break away from this policy without the consensus of the majority of the shareholders …”.
A number of communications between Mr Butler and VPMC's solicitors followed. On 29 th October 2015, VPMC's solicitors wrote to Mr Butler saying:-
“… Although our client will always consider special circumstances (such as a requirement for a guide dog), in the absence of any – and it is noted that your clients have not advised ours that any special circumstances exist – it is proper for our client to apply a blanket ban on dogs …”.
On 30 th October 2015, Mr Butler informed VPMC's solicitors by voicemail that Vinnie was required for therapeutic reasons. In a subsequent telephone conversation that day, VPMC's solicitors requested that medical evidence be provided to support that claim.
On 7 th November 2015, having completed the alteration works, Mr and Mrs Kuehn and Vinnie moved into the Property.
On 12 th November 2015, VPMC's solicitors emailed Mr Butler, requesting that full reasons for keeping Vinnie in the Property, supported by the medical evidence previously referred to, be provided by 4.00 p.m. the next day.
On 13 th November 2015, Mr Butler responded by email in the following terms:-
“… My client's reasons for keeping the dog in the flat are quite obvious. The dog is part of the family unit. My client would be keeping the dog in the flat whether or not it was supported by medical evidence. It just so happens that my client's medical practitioners have confirmed that Vinnie is helping my client clinically. Please accept these reasons for keeping the dog in the flat.”
On 18 th November 2015, VPMC's solicitors responded by writing a “Letter of Claim” to Mr Butler including the following:-
“… As I said to you before, [VPMC] will always consider any special circumstances for a leaseholder requiring a dog, for instance if a guide dog is needed. When they made their application your clients did not give any special reasons for needing to keep a dog in the Property. However, you subsequently mentioned that your clients would be providing medical evidence which showed a medical need to keep a dog, hence I asked you to provide your clients' full reasons supported by that evidence.
The only reason your clients have given for wanting to keep a dog in the Property is that the dog is part of the family unit. Despite a bald reference in your email dated 13 November 2015 to a confirmation from medical...
To continue reading
Request your trial
-
Overriding Interest Summer 2018
...any adjustment of market provisions to ensure that it was policy compliant. VICTORY PLACE MANAGEMENT COMPANY LIMITED V KEUHN AND KEUHN [2018] EWHC 132 (CH) Facts - Mr and Mrs Keuhn, lessees of a flat in Victory Place, were required to remove Vinnie, their terrier, to comply with a covenant ......
-
Pets In Flats A Question Of Consent
...reasonably? Such point was considered in the recent High Court case of Victory Place Management Company Limited v Kuehn & Anor [2018] EWHC 132 (Ch). Facts The proceedings involved an appeal by Mr and Mrs Kuehn against an injunction in the County Court requiring the removal of their belo......