West hampstead Mamagement Company Ltd v PEARL PROPERTY Ltd [CA (Civil), 26/07/2002]
| Jurisdiction | England & Wales |
| Judge | MASTER VENNE,LORD JUSTICE PETER GIBSON,Lady Justice Arden,LADY JUSTICE ARDEN,MR JUSTICE CRESSWELL |
| Judgment Date | 26 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1072,[2002] EWCA Civ 1372 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 July 2002 |
| Docket Number | C/2001/2825/A,C2/2001/2825 |
[2002] EWCA Civ 1072
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LANDS TRIBUNAL
MR JUSTICE FRANCIS, FRICS, TRIBUNAL MEMBER
Royal Courts of Justice
Strand
London WC2
Master Venne
C/2001/2825/A
MISS L MCLEAN (instructed by Piper Smith and Basham, London
SW1V 2AF) appeared on behalf of the Appellant.
MR J EDWARDS and MR M MURRAY (instructed by Marshall Ross and Preveler, London EC2) appeared on behalf of the Respondent.
There is before the court an application by a firm of solicitors, Messrs Piper Smith and Basham, for an order that they be removed from the record as acting for the appellants, West Hampstead Management Company Limited, in proceedings pending before the court.
The matter arises in this way: on 19th December the court received an appellant's notice by which the company, West Hampstead Management Limited, sought permission to appeal against a decision of the Lands Tribunal which had been given on 19th November. That notice was signed, I note, by a director of the company, but the name of the solicitors, Piper Smith and Basham, together with their address, was included on the form.
On 21st January of this year the court received an amended appellant's notice which was completed and signed by those solicitors, and Miss McLean, who appears before me today, does not seek to contend that those solicitors were not on the record.
On 25th January Buxton LJ extended time in which to file the appellant's notice. He granted permission to amend that notice and also permission to appeal if such permission was indeed to be required. In addition the Lord Justice directed that the matter be entered in the short warn list. Subsequently correspondence followed and I acceded to an application to remove the matter from the short warned list.
Against that background I now turn to the present application which was received as recently as 26th June. It was prepared and signed by Miss Lisa McLean who has helpfully appeared before me today. She deposes to the fact that on 19th December she received a voice mail from the court stating that her firm was on the record as acting for the appellants. She then spoke to Mr Edwards and Mr Murray, who are directors of the company, and both of whom have appeared today; Mr Edwards making submissions on both their behalfs.
She made clear that her firm was not prepared to act until she had received full payment of the costs incurred in respect of an earlier application to adjourn the Tribunal proceedings. She then goes on to describe how a cheque, which was received in January 2002, was not subsequently honoured and was returned unpaid by the bank. She also pointed out that counsel's fees remain outstanding.
On 16th March a bill was delivered to West Hampstead for a little over £4,000, but which, at least at the time of the deposition, remained unpaid. There is also in issue an amount of some £2,379 which are counsel's fees.
Today Miss McLean has brought me up-to-date. She tells me that some money has been paid, indeed some £2,500. Mr Edwards, for his part, has asserted that he has himself paid some amount towards counsel's fees and that there is, indeed, no great distance between them in respect of the funds which are now due.
Be that as it may, the solicitors feel that they are not in a position to act for this company until they have been put properly in funds for the purposes of the forthcoming hearing before this court. In these circumstances I feel bound to make the order sought removing their name from the record and I will simply add this: that if West Hampstead are in a position, as they contend, to reinstruct and place the solicitors in funds then Miss McLean has said that she, for her part, speaking on behalf of the firm, would be willing to act in the matter.
[2002] EWCA Civ 1372
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
(Mr P R Francis FRICS)
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
Lady Justice Arden
Mr Justice Cresswell
C2/2001/2825
MR J GAVAGHAN (Instructed by Piper Smith & Basham, 31 Warwick Square, London SW1V 2AF) appeared on behalf of the Appellant.
MR ANTHONY RADEVSKY (Instructed by Marshall Ross & Prevezer, 4 Fredericks Place, London EC2R 8AB) appeared on behalf of the Respondent.
Friday, 26th July 2002
I will Lady Justice Arden to give the first judgment.
This is an appeal from the Lands Tribunal (Mr P R Francis FRICS) dated 19th November 2001, dismissing an appeal from a decision dated 23rd August 2000 of the London Leasehold Valuation Tribunal and allowing a cross-appeal to the extent that the enfranchisement price should be £519,000. This appeal is concerned with one point only, namely, the question whether the Lands Tribunal was correct in fixing the valuation date at 22nd February 2000 pursuant to the Leasehold Reform, Housing and Urban Development Act 1993 ("the 1993 Act"), Schedule 6, paragraph 1(1). That paragraph defines "valuation date" as follows:
"`The valuation date' means—
(a) The date when it is determined, either by agreement or by a leasehold valuation tribunal under this Chapter, what freehold interest in the specified premises is to be acquired by the nominee purchaser, or
(b)if there are different determinations relating to different freehold interests in the specified premises, the date when determinations have been made in relation to all the freehold interests in the premises."
The appellant contends that the Lands Tribunal should have fixed the valuation date at 5th May 1999. It contends that if the appeal succeeds, the case should be remitted back to the Lands Tribunal for a further valuation.
This case concerns the exercise of the right of collective enfranchisement. I need to describe in broad terms the procedure laid down in the Act. The right itself is conferred by section 1, which provides:
"(1) This Chapter has effect for the purpose of conferring on qualifying tenants of flats contained in premises to which this Chapter applies on the relevant date the right, exercisable subject to and in accordance with this Chapter, to have the freehold of those premises acquired on their behalf—
(a)by a person or persons appointed by them for the purpose, and
(b)at a price determined in accordance with this Chapter.
and that right is referred to in this Chapter as 'the right to collective enfranchisement'.
(2) Where the right to collective enfranchisement is exercised in relation to any such premises ('the relevant premises')—
(a)the qualifying tenants by whom the right is exercised shall be entitled, subject to and in accordance with this Chapter, to have acquired, in like manner, the freehold of any property which is not comprised in the relevant premises but to which this paragraph applies by virtue of subsection (3).
I need not read paragraph (b).
Subsection (3) provides in the relevant part:
"Subsection (2)(a) applies to any property if … at the relevant date either—
(a)it is appurtenant property which is demised by the lease held by a qualifying tenant of a flat contained in the relevant premises; or
(b)it is property which any such tenant is entitled under the terms of his flat to use in common with the occupiers of other premises (whether those premises are contained in the relevant premises or not)."
Accordingly, there is a right to acquire appurtenant property and property used in common.
"Appurtenant property" is defined by section 1(7) as:
"… in relation to a flat … any garage, outhouse, garden yard or appurtenances belonging to, or usually enjoyed with, the flat".
I go now to section 13, which deals with the notice which tenants must serve if they wish to exercise the right of collective enfranchisement:
"(1) A claim to exercise the right to collective enfranchisement with respect to any premises is made by the giving of notice of the claim under this section."
Subsection (2) provides for the notice to be given to the reversioner. For the purposes of this case the critical part of the subsection is that which deals with the contents of the notice, which I must now read in material part:
"(3) The initial notice must—
(a)specify and be accompanied by a plan showing—
(i)the premises of which the freehold is proposed to be acquired by virtue of subsection (1)(1).
(ii)any property of which the freehold is proposed to be acquired by virtue of section 1(2)(a), and
(iii)any property … over which it is proposed that rights (specified in the notice) should be granted … in connection with the acquisition of the freehold [interest] of the specified premises or of any such property so far as falling within section 1(3)(a).
…
(c) specify—
(i)any leasehold interest proposed to be acquired under or by virtue of section 2(1)(a) or (b), and
(ii)any flats or other units contained in the specified premises in relation to which it is considered that any of the requirements in Part II of Schedule 9 to this Act are applicable."
I interpose that Schedule 9 Part II deals with the mandatory leaseback of flats which do not qualify for acquisition by the tenants under their right of collective enfranchisement.
It will be seen from those...
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