Upper Tribunal – Appeal from leasehold valuation tribunal – Service of proceedings Ð LVT proceedings not properly served on appellant landlord – LVT giving decision in favour of respondent leaseholders and RTM company – Whether Upper Tribunal obliged to allow appellant’s appeal and remit case to LVT – Whether having discretion to dispense with service and dismiss appeal – Appeal dismissed The respondents were the leaseholders of flats in a block in London SW19, plus an RTM company that had acquired the right to manage the flats in November 2010 pursuant to Part 2 of the Commonhold and Leasehold Reform Act 2002. The appellant company owned the freehold of the block; at the relevant time, its registered office was in Jersey. The respondents applied to the leasehold valuation tribunal (LVT), under section 27A of the Landlord and Tenant Act 1985, for a determination of their liability for service charges for the years 2005 to 2010; they contended that they were not liable to pay anything for those years owing to various failures on the part of the appellant to provide information required by statute, including an address for service in England and Wales as required by section 48 of the Landlord and Tenant Act 1987. Neither the respondents nor the appellant appeared at the LVT hearing. The LVT accepted the respondents’ case and held that none of the service charges for the relevant years had been validly claimed. It ordered the appellant to repay service charges of £149,509 to each of the respondent leaseholders. The appellant applied to set aside the LVT’s order on the ground that it had not been served with notice of the proceedings and had not known about them. It gave evidence that the relevant documents had been served at the wrong Jersey address and on two parties in the United Kingdom, both of which had formerly provided service to the appellant but no longer did so at the time of the LVT application. It pointed out that regulation 23 of the Leasehold Valuation Tribunals (Procedure) (England) Regulations 2003, governing the service of documents in LVT proceedings, made no provision for what should happen in the event that a party was not served in accordance with the rules; it contended that the Upper Tribunal should set aside the LVT’s decision in such cases and remit the matter for rehearing. Held: The appeal was dismissed. The LVT proceedings had not been served on the appellant at its registered address in Jersey. In any event, regulation 23 of the 2003 Regulations did not provide for LVT proceedings to be served outside the UK. Where the application to the LVT gave an address for service that was outside the UK, regulation 23(4)(a)(iii) and 23(5) envisaged that the LVT would make an order either dispensing with service or for substituted service. The LVT had made no such order in the instant case. Although regulation 23(1)(c) permitted service on agents, no party had been served with the LVT application as agent for the appellant. The parties served in the UK had been served in their own right on the ground that they were managing agents. It followed that the appellant had not been served with the proceedings in accordance with the 2003 Regulations. However, on the evidence, the appellant must have been aware of the proceedings, either through the person who advised it on property issues relating to the flats or through its solicitor; both knew of the proceedings and were in regular contact with the appellant. The appellant had therefore known of the proceedings but had made a deliberate decision not to take part in them. That was consistent with its longstanding unwillingness to take proper responsibility for the management of the flats, which had resulted in the management being placed in the hands of the RTM company and in the leaseholders making their application to the LVT in reliance on the appellant’s failure to comply with statutory requirements as to the provision of information. The only reason why the appellant now sought to be involved was because of the judgments against it for large sums. Where the appellant was aware of the proceedings, the Upper Tribunal was not bound to allow the appeal. The Upper Tribunal on an appeal could exercise any power that was available to the LVT. That included the power to dispense with service on party who was outside the UK. The Upper Tribunal should exercise its powers on appeal on similar principles to those that applied to the exercise of powers under the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, including the overriding objective under r 2 to deal with cases justly and fairly. There were exceptional circumstances in the instant case that justified the Upper Tribunal in exercising its discretion to dispense with service of the proceedings on the appellant and refuse to set aside the LVT’s decision: Nelson v Clearsprings (Management) Ltd [2006] EWCA Civ 1252; [2007] 2 All ER 407; [2006] PLSCS 201 applied. Adam Swirsky (instructed by Davies & Partners) appeared for the appellant; the first respondent appeared in person for the respondents. Sally Dobson, barrister
Upper Tribunal – Appeal from leasehold valuation tribunal – Service of proceedings Ð LVT proceedings not properly served on appellant landlord – LVT giving decision in favour of respondent leaseholders and RTM company – Whether Upper Tribunal obliged to allow appellant’s appeal and remit case to LVT – Whether having discretion to dispense with service and dismiss appeal – Appeal dismissed The respondents were the leaseholders of flats in a block in London SW19, plus an RTM company that had acquired the right to manage the flats in November 2010 pursuant to Part 2 of the Commonhold and Leasehold Reform Act 2002. The appellant company owned the freehold of the block; at the relevant time, its registered office was in Jersey. The respondents applied to the leasehold valuation tribunal (LVT), under section 27A of the Landlord and Tenant Act 1985, for a determination of their liability for service charges for the years 2005 to 2010; they contended that they were not liable to pay anything for those years owing to various failures on the part of the appellant to provide information required by statute, including an address for service in England and Wales as required by section 48 of the Landlord and Tenant Act 1987. Neither the respondents nor the appellant appeared at the LVT hearing. The LVT accepted the respondents’ case and held that none of the service charges for the relevant years had been validly claimed. It ordered the appellant to repay service charges of £149,509 to each of the respondent leaseholders. The appellant applied to set aside the LVT’s order on the ground that it had not been served with notice of the proceedings and had not known about them. It gave evidence that the relevant documents had been served at the wrong Jersey address and on two parties in the United Kingdom, both of which had formerly provided service to the appellant but no longer did so at the time of the LVT application. It pointed out that regulation 23 of the Leasehold Valuation Tribunals (Procedure) (England) Regulations 2003, governing the service of documents in LVT proceedings, made no provision for what should happen in the event that a party was not served in accordance with the rules; it contended that the Upper Tribunal should set aside the LVT’s decision in such cases and remit the matter for rehearing. Held: The appeal was dismissed. The LVT proceedings had not been served on the appellant at its registered address in Jersey. In any event, regulation 23 of the 2003 Regulations did not provide for LVT proceedings to be served outside the UK. Where the application to the LVT gave an address for service that was outside the UK, regulation 23(4)(a)(iii) and 23(5) envisaged that the LVT would make an order either dispensing with service or for substituted service. The LVT had made no such order in the instant case. Although regulation 23(1)(c) permitted service on agents, no party had been served with the LVT application as agent for the appellant. The parties served in the UK had been served in their own right on the ground that they were managing agents. It followed that the appellant had not been served with the proceedings in accordance with the 2003 Regulations. However, on the evidence, the appellant must have been aware of the proceedings, either through the person who advised it on property issues relating to the flats or through its solicitor; both knew of the proceedings and were in regular contact with the appellant. The appellant had therefore known of the proceedings but had made a deliberate decision not to take part in them. That was consistent with its longstanding unwillingness to take proper responsibility for the management of the flats, which had resulted in the management being placed in the hands of the RTM company and in the leaseholders making their application to the LVT in reliance on the appellant’s failure to comply with statutory requirements as to the provision of information. The only reason why the appellant now sought to be involved was because of the judgments against it for large sums. Where the appellant was aware of the proceedings, the Upper Tribunal was not bound to allow the appeal. The Upper Tribunal on an appeal could exercise any power that was available to the LVT. That included the power to dispense with service on party who was outside the UK. The Upper Tribunal should exercise its powers on appeal on similar principles to those that applied to the exercise of powers under the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, including the overriding objective under r 2 to deal with cases justly and fairly. There were exceptional circumstances in the instant case that justified the Upper Tribunal in exercising its discretion to dispense with service of the proceedings on the appellant and refuse to set aside the LVT’s decision: Nelson v Clearsprings (Management) Ltd [2006] EWCA Civ 1252; [2007] 2 All ER 407; [2006] PLSCS 201 applied. Adam Swirsky (instructed by Davies & Partners) appeared for the appellant; the first respondent appeared in person for the respondents. Sally Dobson, barrister
