Practice and procedure – Abuse of process – Unsuccessful application by owners of lodges in holiday park for recognition of tenant’s association under section 29 of Landlord and Tenant Act 1985 – Application dismissed on ground that lodge owners not tenants of “dwelling” – Further application for determination of service charge liability under section 27A dismissed on same ground – First-tier tribunal holding that application an abuse of process where issue already determined in earlier proceedings – Whether appellants’ case properly struck out where not parties to earlier application – Appeal dismissed
In 2011, the appellants acquired a lodge which was sited, pursuant to a 125-year lease, on a plot in the respondent’s holiday park in Torpoint, Cornwall. The park had previously been the subject of an application in 2010 by a number of lodge owners, including the appellants’ predecessors in title, for the recognition of a tenant’s association under section 29 of the Landlord and Tenant Act 1985. That application been dismissed by the rent assessment committee, which held that, on an application of sections 29, 18 and 38 of the 1985 Act, the occupants of the lodges did not fulfil the requirement of being “qualifying tenants” since they did not pay a service charge as defined in the Act, namely a charge payable by a “tenant of a dwelling” in addition to the rent. In that regard, it held that the lodges were not “dwellings” as defined in section 38 of the Act, since they were not a “building or part of a building”; moreover, the lodge owners were not tenants of the lodges but only of the plots on which they were sited.
In November 2012, the appellants and other lodge owners applied to the leasehold valuation tribunal (LVT) under section 27A of the 1985 Act, for a determination of their service charge liability. The LVT took the view that its jurisdiction to determine that matter depended on the particular lodges being “dwellings”, which point had been decided by the rent assessment committee against all the leaseholders except the appellants. Following a hearing on the jurisdiction point, the LVT dismissed the application save in relation to the appellants.
Subsequently, the first-tier tribunal (FTT), as the successor of the LVT, indicated that it was minded to strike out the appellants’ case also as being frivolous, vexatious or otherwise an abuse of process. Following a hearing on that issue, the FTT concluded that there was no significant difference between the appellants’ case and that of the other lodge owners and proceeded to strike it out pursuant to r 9(3)(d) of the Tribunal Procedure (First-Tier Tribunal) (Property Chamber) Rules 2013.
The appellants appealed. They contended that their position was different and their case raised different issues from those determined by the rent assessment committee, since they were arguing that their lodge was attached to the plot as a tenant’s fixture.
Held: The appeal was dismissed.
(1) The 2013 Rules conferred a power on the FTT to strike out proceedings as an abuse of process, whereas the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 contained no such express power for the Upper Tribunal (UT). The FTT was therefore the primary gatekeeper with responsibility for barring vexations or abusive claims. The UT would interfere with a decision of the FTT on abuse of process only if the FTT had made an error of law by misunderstanding or misapplying the relevant law. However, it was for the FTT to put such weight as it thought appropriate on the various facts that it found: Aldi Stores Ltd v WSP Group [2007] EWCA Civ 1260; [2007] PLSCS 244 applied.
(2 Where jurisdiction depended on criteria that were defined in statute, those criteria had to be satisfied. The tribunal could not be given jurisdiction by the parties’ failure to address a particular criterion or an agreement by them to waive it. An important purpose of r 9(3) was to give to the FTT the ability, in proper cases as defined by the rules, to avoid the necessity to revisit that jurisdictional question on every occasion that it arose. It was a desirable procedural power to prevent the FTT from being faced with an unnecessary number of applications on essentially the same point.
(3) The FTT had been entitled to strike out the appellants’ case as an abuse of process, applying the appropriate broad, merits-based approach: Johnson v Gore-Wood & Co (No 1) [2002] 2 AC 1; [2000] PLSCS 292 and Price v Nunn [2013] EWCA Civ 1002; [2013] PLSCS 206 applied. In order to succeed in establishing jurisdiction under section 27A, the appellants had to show both that their lodge was a “dwelling” which was a “building” and that there was a tenancy of it. If the lodge was not a “building”, it would make no difference whether there was a tenancy of it or not. The argument as to whether the lodge had become annexed to the plot or was a tenant’s fixture attached to it was relevant to whether there was a tenancy of the lodge, but was not relevant to whether the lodge was a building and thus a dwelling. The FTT had understood the point that the appellants were making but had been entitled to find that the “tenant’s fixture” argument made no difference to the basic finding that the lodges were not dwellings within section 27A. There was no evidential basis for concluding that the importance of the issue would be significantly different for the appellants than for the other lodge owners by reason of the length of their lease. Further, no real distinction could be drawn between the position of parties who were seeking to establish that their lodge was a dwelling under the 1985 Act for the purposes of section 27A and parties who sought to establish exactly the same thing, under exactly the same statutory definition, for the purposes of section 29.
The FTT had also been entitled to take the view that it should not allow a case to be re-litigated on substantially the same grounds as previous proceedings simply because the new case was brought by a successor in title who had not been a party to those earlier proceedings. It had properly taken the view that the difference in the parties to the new proceedings was a powerful factor in the application of the broad-merits based judgment but did not operate as a bar to the application of the abuse of process principle. The fact that the new party was a successor in title, who had played no part in the previous litigation, was one of the important facts that had to be taken into account, but it was for the FTT to weigh that fact with the rest in reaching its overall judgment. The FTT had been entitled to take into account the risk of “opening the floodgates” namely the possibility that litigation would be encouraged by allowing the application by a successor in title to proceed in the sort of factual circumstances that they were considering. That was a matter of balance and weight for them to decide. Accordingly, there were no grounds for interfering with the FTT’s decision.
Per curiam: The better view was that the appellants’ lodge was not a “building” and thus not a “dwelling”. It could not only be enjoyed where it was. It could be taken apart and put back together elsewhere, without any process of demolition or even any process that could fairly be described as re-erection. It was not attached to the plot in any way that made it a fixture. It had not become part of the realty but was a mobile home.
Rawdon Crozier (instructed by Fursdon Knapper, of Plymouth) appeared for the appellants; Jill Headford (of Tozers LLP, of Exeter) appeared for the respondent.
Sally Dobson, barrister
Read the transcript of Caddick and another v Whitsand Bay Holiday Park Ltd
