The Upper Tribunal (Lands Chamber) has again highlighted the perils of determining disputed issues of fact only on the basis of written material provided by unrepresented parties.
In Smith v Waterloo Warehouse RTM Co Ltd [2023] UKUT 8 (LC); [2023] PLSCS 5 the appellant was the long lessee of two flats situated in a block in East Waterloo Dock, Liverpool. The respondent was the RTM company responsible for managing the block.
A dispute arose between the parties as to the reasonableness and payability of service charges for the service charge years 2015 to 2018.
The lessee argued that contrary to section 47 of the Landlord and Tenant Act 1987 some of the service charge demands failed to include the prescribed information; namely, his landlord’s name and address for service. Further, contrary to section 21B of the Landlord and Tenant Act 1985, the service charge demands were not accompanied by the requisite summary of the tenant’s rights and obligations. The lessee argued that copies of the demands that had been provided were doctored.
The lessee also contended that he had agreed with the RTM company’s previous managing agents that the service charges he paid would be allocated to his current service charges and not pre-2015 outstanding service charges.
The First-tier Tribunal determined the matter on the papers as the parties did not request an oral hearing. It found on balance that the service charge demands for the disputed years did contain the prescribed information and summary.
In reaching its decision the FTT made three key findings. First, leasehold management companies, even if substandard in their discharge of other functions, did produce service charge demands in the correct form. Second, if the service charge demands did not include the prescribed information or the summary they would have been challenged by other leaseholders. Lastly, the copy documents produced by the RTM company were in the correct form and the FTT had not identified any evidence of them being doctored.
The FTT also found that the lessee had not reached any agreement as to how his service charge payments would be allocated.
On appeal to the UT, the lessee argued that the FTT should not have determined the contested issues of fact without a hearing. The UT agreed. When a contested factual issue turned entirely on the credibility of witnesses, it would be difficult to decide the matter fairly or reliably without a hearing.
In the present case, one party was lying as to whether an agreement was reached on the allocation of payments but the FTT failed to give reasons for preferring the RTM company’s evidence. Additionally, the lessee had provided positive evidence that demands he received were not in the correct form and the FTT had no evidence as to whether other leaseholders had challenged the demands.
The matter was remitted to the FTT for a fresh determination.
Elizabeth Dwomoh is a barrister at Lamb Chambers
