When considering an application to vary or discharge an order appointing a manager, a tribunal which asks itself whether it is just and convenient to vary or discharge an existing order will not misdirect itself.
In Orchard and another v Mooney and others [2023] UKUT 78 (LC)144 the Upper Tribunal considered an appeal against the First-tier Tribunal’s refusal to discharge a manager appointed under Part 2 of the Landlord and Tenant Act 1987 when it had been alleged that the manager was not impartial.
The manager had been appointed to manage 144 Goldhurst Terrace, London, NW6, a Victorian house divided into three long-leasehold flats. The house was owned by the leaseholders themselves and the appointment had been prompted by the leaseholders’ own inability to agree how the house should be managed.
A major issue was whether the source of water ingress was the roof (which was the freeholder’s responsibility) or an upper terrace which was demised to the Orchards, which issue was also the subject of litigation in the county court.
Managers appointed by the court have to adhere to the highest professional standards. The Orchards formed the view that the manager was not behaving in an even-handed manner when considering the cause of the water ingress. They applied for the manager to be discharged.
Their application was dismissed by the FTT but the UT applied the conditions set out in Ladd v Marshall [1954] 1WLR 1489 and allowed fresh evidence to be adduced. This evidence showed that the FTT had been misled. It had not been advised by the manager that her surveyor had changed his view and concluded that the likely point of water ingress was the roof or that the manager had disclosed the surveyor’s most recent report to another lessee and her solicitor (but not the Orchards) or that the manager had referred to the Orchards as “rogue freeholders”.
The decision of the FTT had to be set aside. The Upper Tribunal did not remit the matter but itself considered the application to discharge the manager. The 1987 Act provides little guidance as to the correct approach to such applications.
The UT considered the position at the date of the appeal and concluded that (on balance) it was not the just and convenient course to discharge the manager on the grounds that neither the tribunal nor the parties could have confidence in her and her conduct did not necessitate it.
Elizabeth Haggerty is a barrister
