Tenant requesting notice of service expenditure – Managing agent providing summary of relevant costs in purported compliance with section 21 of the Landlord and Tenant Act 1985 (as amended) – Proceedings issued against managing agent for failure to comply with statutory requirements – Whether proceedings resulting from trivial or technical breach amounting to abuse of process – Application for leave to move for judicial review refused
On 19 July 1996 M became the landlord of premises known as 10 Hatherley Grove, London W2, which consisted of six flats. In October 1996 the landlord requested the managing agent to supply a notice of service expenditure for the year ending 29 September 1996. In purported compliance with section 21 of the Landlord and Tenant Act 1985 (as amended) the landlord sent to the tenants a summary of the costs incurred in relation to the premises, incorporating the total split between the six flats, subject only to insurance items showing a small balance outstanding (“the document”). One of the tenants complained to the applicant council that the document did not constitute a valid notice of service expenditure. The council informed the managing agent that the document did not comply with section 21 and was, accordingly, contrary to section 25(1) of the 1985 Act.
A revised notice of service expenditure was not supplied and the council issued proceedings. Meanwhile, the landlord issued proceedings for outstanding service charges of £1,900 owed by the tenant. The magistrate concluded that the document did not comply with the requirements of section 21(5) and (6) of the 1985 Act. However, relying on Taber v Macdonald and another [1998] PLSCS 53 he concluded that he was satisfied the alleged offence was so trivial that it did not justify the bringing of proceedings and, accordingly, the proceedings should be stayed. The applicants sought leave to move for judicial review of the magistrate’s decision contending that the document had not complied with section 21, and, therefore, it had been inappropriate to stay the proceedings.
Held The application was refused.
1. Although the document had not complied with section 21 and was therefore contrary to section 25 of the 1985 Act. the magistrate had not been entitled to rely on Taber v Macdonald and another, since it was not relevant to a landlord’s duties under section 21 but applied to instances where a landlord did not have the information required by a tenant.
2. The failure to set out the details required by section 21 in a notice of service expenditure was a criminal offence and, therefore, it could not be concluded that proceedings brought as a result of a trivial or technical failure could amount to an abuse of process. However, the court might take the view that there should be no penalty or order costs sanctions where proceedings were brought as a result of such a failure.
3. It was not appropriate to grant leave to move for judicial review since the tenant had essentially obtained the information necessary, and his appropriate remedy was to request to see any relevant documents.
Timothy Spencer (instructed by the solicitor to Westminster City Council) appeared for the applicants; the respondent did not appear and was not represented.
Thomas Elliott, barrister
