Dr Patricia M Scriven & ors v Calthorpe Estates & ors [2013] UKUT 0469 (LC)

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Paddy Arnold v Rodney Britton & others [2012] EWHC 3451 (Ch), Part I
22nd October 2013
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Paddy Arnold v Rodney Britton & others [2012] EWHC 3451 (Ch), Part II
27th November 2013
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Introduction

I interrupt my broadcast of Arnold v Britton to bring news from the Upper Tribunal of procedural guidance on the First-tier Tribunal’s reviewing powers.

This is not a service charge case. The issue appealed was whether the LVT was correct to hold that it had no jurisdiction to vary an estate management scheme under section 159 of the Commonhold and Leasehold Reform Act 2002.

By the time the case reached the Upper Tribunal, the parties to the appeal all agreed that:

a) The LVT was wrong;

b) The decision should be set aside, and

c) The application for a variation of the estate management scheme should be reconsidered on its merits by the FTT.

The appeal was heard by Martin Rodger QC, Deputy President of the Upper Tribunal.

“Although uncontroversial”, said he, “the appeal is timely. It allows the Tribunal to draw attention to important new powers given to the tribunals of the Property Chamber by the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013, and to the existing jurisprudence from other Chambers on the scope of those powers”.

Scriven before the LVT

Applications to vary an estate management schemes are not regulars before leasehold valuation tribunals. The LVT’s task was made none the easier by the absence of legal representation at the hearing.

The LVT dismissed the application on the ground that it had no jurisdiction to consider the application. Its decision was based more than in part on a previous LVT declining jurisdiction in Walker v Hampstead Garden Suburb Trust Ltd (LON/OOAC/LVE/2007/001).

Walker appealed

Unbeknown to the LVT, Walker was appealed to the Lands Tribunal. Mr Walker initiated the appeal, but had later been substituted as appellant by another resident of the Garden Suburb, Mr Botterill.

Hence it was under the name and reference Botterill v Hampstead Garden Suburb Trust Ltd LRX/135/2007 that the appeal in Walker was considered by HHJ Gilbart QC in the Lands Tribunal in late 2007.

HHJ Gilbart QC decided that section 159(3) did confer jurisdiction to vary an estate management scheme, and reversed the LVT’s decision on jurisdiction.

Scriven and permission to appeal

When Botterill was drawn to the LVT’s attention, permission to appeal was granted, limited to the jurisdiction point.

Martin Rodger QC very fairly observed that: “the LVT was clearly right to grant permission to appeal, and I am sure that if its researches had uncovered Botterill before the hearing on 13 December 2012 it would have followed the decision of the Lands Tribunal”.

And so it was that Dr Scriven’s appeal on the Botterill point was unopposed, although all of the respondents made it clear that they continued to oppose the application to vary the estate management scheme itself.

The appeal

I have a sneaky suspicion that the question of jurisdiction rather intrigued Martin Rodger QC. He set out the various provisions of sections 159 of the 2002 Act in so far as they related to estate charges, indulged in a little soliloquy on the issues raised by it, and concluded, rather beguilingly, that “despite the consensus in this case, I must acknowledge a doubt in my own mind over the Tribunal’s decision in Botterill”.

Exercising self-restraint however, he said: “As no party opposes the appeal I have heard no argument concerning the proper construction of section 159. For that reason I do not consider that this is an appropriate case in which to reconsider the Tribunal’s decision in Botterill, which I therefore propose to follow”.

He allowed the appeal, and moved on to the procedural matters. Stay with me please – it really is worth it.

Loss of time pre- and post-01 July 2013

“It is regrettable”, said Martin Rodger QC, “that the parties have so far been delayed by at least 6 months. The LVT did what it could under the rules then in force to facilitate the bringing of the appeal by giving its permission promptly; there was at that time nothing more that the LVT could have done when it realised that it had made its determination in reliance on reasoning which had already been overruled on appeal to the Tribunal which it was duty bound to follow”.

He continued: “Had the LVT been asked to grant permission to appeal after 1 July 2013, the procedural tools now at its disposal would have enabled it to take a very different approach. From that date the LVT became part of the Property Chamber of the First-tier Tribunal and, for the first time, acquired the power to review its own decisions. Because of the significance of that new power, although it was not available in this case, I take this opportunity to highlight and comment on it”.

Review by the First-tier Tribunal

Those of my readers who accompanied me through the marathon which was my preview of the new procedure rules for the First-tier Tribunal will imminently be putting out the bunting of happy recognition.

Statutory basis for review

Martin Rodger QC first identified the statutory basis of the First-tier Tribunal’s power of review:

He noted that:

  • Section 11(5)(d) of the 2007 Act provides that a decision of the First-tier Tribunal under section 9 is an “excluded decision” against which there is no right of appeal on a point of law to the Upper Tribunal, and
  • Section 11(5)(e) also makes it clear that a decision of the First-tier Tribunal which has been set aside under section 9 is also an excluded decision.

Part 6 of the 2013 Rules makes provision for correcting, setting aside, reviewing and appealing decisions of the First-tier Tribunal.

Rule 53 is concerned with the consideration of applications for permission to appeal, and directs the First-tier Tribunal to take into account the overriding objective to deal with cases fairly and justly when considering whether to review a decision on receiving an application for permission to appeal.

Rule 55 is concerned with the review of decisions.

Guidance

Martin Rodger QC outlined the valuable guidance which was already available in two decisions of the Upper Tribunal (Administrative Appeals Chamber), where the power of review has been exercisable since 2008.

R (RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC):

  • A decision of a three-judge panel of the Upper Tribunal, including Lord Justice Carnwath, Senior President of the Tribunals;
  • It considers the purpose of the review power;
  • It warns that it should not be used in a way which:
    • Usurps the Upper Tribunal’s function of determining appeals on contentious points of law, or otherwise
    • Subverts the integrity of the appeal process.
    • The review power is flexible and involves a large element of judgment or discretion.

JS v Secretary of State for Work and Pensions [2013] UKUT 100 (AAC):

  • Another decision of a three-judge panel of the Upper Tribunal;
  • It contains a detailed consideration of the scope of the power under section 9(4)(b) to amend reasons in consequence of a review, and
  • It warns of the danger that, in amending the reasons already given for a decision, “the judge will drift into justification to such an extent that the tribunal changes from a decision-maker into an adversary in the appeals process”.

Reviews in the Property Chamber

The Deputy President considered that three further points were relevant:

  • The exercise of the power in appropriate cases has the potential to avoid expensive and time consuming appeals;
  • The purpose of the power of review was described by the Upper Tribunal (Administrative Appeals Chamber) in JS v Secretary of State for Work and Pensions [2013] UKUT 100 (AAC) (at §28) as being “to allow the First-tier Tribunal to avoid the need for an appeal to the Upper Tribunal in the case of clear errors”;
  • The power is discretionary and is exercisable by a tribunal on its own initiative or on application by any party. A review may only be undertaken when the First-tier Tribunal receives an application for permission to appeal

The review process, step by step

When

  • The First-tier Tribunal may only “undertake a review of a decision” (rule 55(1)) if it is satisfied that a ground of appeal is likely to be successful;
  • The power should therefore be used only in cases where a decision is clearly wrong. As the Tribunal explained in R (RB) v First-tier Tribunal (Review) (at §24) it cannot have been intended to enable the First-tier Tribunal “to take a different view of the law from that previously reached, when both views are tenable”.

The right to be heard

  • Before carrying out a review and exercising any of its powers, the First-tier Tribunal should consider whether it is appropriate to notify every other party to the proceedings that an application for permission to appeal has been received or that it proposes to carry out a review of its own initiative;
  • Where the First-tier Tribunal is considering making any significant change to its decision, fairness, transparency and convenience would all seem to require that it first allow the parties to make representations on the proposed change, if they have not yet had an opportunity to do so;
  • Prior notification may not be essential and a more robust approach may be permissible, because rule 55(3) provides safeguards for parties who are not heard at this stage. Nonetheless, where the consequence of a review may be to deprive a successful party of the benefit of a decision in its favour, the fairer and more efficient course is likely to be allow representations to be made at the outset.

After the review

  • On reviewing a decision, the First-tier Tribunal may take the steps specified in section 9(4) of the 2007 Act, which are:
    • Correction of accidental errors in the decision;
    • Amendment of the reasons given for the decision, or
    • Setting aside the decision;
    • If the Tribunal decides that no action is required, rule 52(2) requires it to consider whether to grant permission to appeal.

Notification of the parties

  • The parties must be notified of the outcome of the review and of their right to appeal;

  • If the First-tier Tribunal takes any action following a review without first giving all parties the opportunity to make representations, rule 55(3) obliges it, when giving notice of the outcome of the review, to inform any party that did not have an opportunity to make representations of its entitlement to apply for the action to be set aside and for the decision to be reviewed again.

Where the decision is set aside

  • Where the outcome of a review is that a decision is set aside, the First-tier Tribunal will then either re-decide the matter under section 9(5)(a) or refer it to the Upper Tribunal for it to re-decide under section 9(5)(b).

The paradigm case

Concluding his judgment, Martin Rodger QC observed: “Had the LVT in this case received an application for permission to appeal its decision after 1 July 2013, on the grounds that it had overlooked the binding decision of the Tribunal in the Botterill case, this would have been a clear case in which the power to review the decision and set it aside could swiftly have been exercised by the LVT. The delay and expense of this appeal would have been avoided, and the merits of the application could promptly have been reconsidered by the same tribunal”.

Observations

It could be said that the link from Dr Scriven’s case in the LVT to a discussion of the First-tier Tribunal’s new review power is not completely seamless. To my mind however, the odd rusty rivet can only give more character to the procedural engine which informs both the style and the substance of this decision.

Looking at the content of the guidance, for me one of the most useful pointers here is the indication that it is only really when things have gone truly pear-shaped that the First-tier Tribunal is most likely to exercise its new power. If the law is unclear, as I read the Deputy President’s decision, the grant of permission to appeal is the answer.

The references to cases in the other Upper Tribunals are comforting. Whilst I appreciate that an Upper Tribunal decision does rather suggest that something has gone askew at First-tier level, it is heartening to know that other First-tier Tribunal jurisdictions have been working with the review process without collapse (that I have heard of) since 2008.

Fingers crossed for the Property Chamber.

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