Decision of leasehold valuation tribunal — Permission to appeal refused Judicial review of refusal permitted in exceptional circumstances — Appeal dismissed
The appellant was the landlord of a four-storey house that had been converted into six flats. In 2002, the interested parties, who were lessees of two of the flats, made an application to a leasehold valuation tribunal (LVT), under section 19(2A) of the Landlord and Tenant Act 1985, challenging the amount of service charge levied by the appellant. The LVT disallowed a number of items claimed by the appellant, including the cost of damp-proofing works, on the ground that they amounted to improvements rather than repairs recoverable under the relevant covenant in the leases.
The appellant applied, under section 31A(6), for permission to appeal, but that application was refused by both the LVT and the Lands Tribunal. The appellant then sought permission to apply for judicial review of the tribunal’s decision.
Dismissing the claim, the judge held that: (i) since section 3(4) of the Lands Tribunal Act 1949 did not provide a right of appeal from a decision of the tribunal refusing permission to appeal an LVT decision, judicial review was the only possible remedy; but (ii) permission for judicial review should be granted only in exceptional circumstances, namely, very narrow grounds relating to jurisdictional error or on procedural irregularity of a kind such as to amount to a denial of the applicant’s right to a fair hearing. He found no such grounds in the instant case. The appellant appealed.
Held: The appeal was dismissed.
1. The tribunal’s refusal of permission to appeal was not a “decision” susceptible to an appeal within the meaning of section 3(4), and, accordingly, that section did not constitute an impediment to an application for judicial review. The correct approach to such an application was to ask whether the relevant statutory scheme amounted to; (i) an adequate system for reviewing the merits of the first instance decision; and (ii) fair, adequate and proportionate protection against the risk that the first instance tribunal had acted without jurisdiction or had fallen into error. If the statutory scheme satisfied that test, judicial review of a refusal to give permission to appeal should be granted only in exceptional circumstances: R (on the application of Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738; [2003] 1 WLR 475 applied. When determining whether the test had been satisfied, reference should be made to: (i) the generic nature of the issues involved; (ii) the effect of the statutory procedures concerned, particularly those relating to appeals; (iii) the nature and constitution of the tribunals involved in those procedures; and (iv) the legislative intention, so far as it could be ascertained. Those factors were to be assessed against fundamental policy considerations, including the desirability of finality and of finding the legally correct answer, and against the practicalities, such as the burdens on the court and, here, the pressures on the tribunal.
2. In the instant case, the nature of the dispute involved questions of detail and points that turned on the particular facts of the case, together with insignificant sums of money compared the costs that would be incurred on any appeal. The LVT and the tribunal satisfied the requirements of a “court” for the purposes of Article 6 of the European Convention on Human Rights since both were independent judicial bodies, that had the additional advantage of specialising in service charge disputes. Moreover, the purpose of the 1985 Act was, in part, to protect residential tenants, and it was legitimate to take account of their protection in respect of the cost and uncertainty of drawn-out litigation. The general policy of the 1985 Act was to leave residential service charge issues to the good sense of the LVT, under the expert supervision of the tribunal: Orchard Court Residents’ Association v St Anthony’s Homes Ltd [2003] EWCA Civ 1049; [2003] 2 EGLR 28; [2003] 33 EG 64 considered. In all the circumstances, the judge had taken the proper approach to the appellant’s application for judicial review. The issue raised by the appellant, namely whether the items claimed fell within the terms of the particular repairing covenant, was a standard, “bread-and-butter” issue for the LVT, and no exceptional circumstances arose.
Paul Letman (instructed by P Chevalier & Co, of Chessington) appeared for the appellant; Jonathan Karas (instructed by the Treasury Solicitor) appeared as advocate to the court.
Sally Dobson, barrister
