Witnesham Ventures Ltd v Markwick and another
Service charges – Determination by leasehold valuation tribunal – Section 27A of Landlord and Tenant Act 1985 – Parties advancing no evidence but agreeing for leasehold valuation tribunal (LVT) to determine disputed items on basis of contents of Scott schedules – LVT making determination – Whether reasons inadequate – Whether possible to redetermine disputed items by making findings of fact on basis of burden of proof in absence of evidence – Appeal allowed
The first respondent applied to the leasehold valuation tribunal (LVT) for a determination, under section 27A of the Landlord and Tenant Act 1985, of the service charge payable to the appellant landlord in respect of the flat of which she was the lessee for the years 1999 to 2005. Various disputed items were agreed and the LVT inspected the premises; directions were then given for the preparation of revised Scott schedules setting out the parties’ contentions on the items that remained in dispute. The hearing resumed at a later date but the parties did not call any evidence. Instead, they agreed that the LVT should determine the disputed items on the basis of the contents of the Scott Schedules to a total value of £214,540. The LVT gave a preliminary determination, setting out its conclusions as to the various service charge items and the amounts payable, with a view to the parties agreeing the terms of an order to be made by consent. However, no such agreement was reached and the LVT gave a final decision. In its reasons for the decision, the LVT stated that it had reviewed each item outstanding on the Scott schedules and that, in respect of all items that it had found to be recoverable as service charges, it was satisfied, on all the available evidence before it, that those items were reasonable and had been reasonably incurred.
The appellant appealed, contending that the LVT had failed to give adequate reasons for its decision. The second respondent, as the residents’ association that represented the various lessees in the appellant’s buildings, acted on behalf of the first respondent on the appeal. It accepted that the LVT’s decision could not stand for the reason that the appellant had advanced. However, it contended that the appropriate course was for the LVT to determine the items in dispute, where those items turned on any finding of facts and no evidence was available but merely conflicting assertions, against the party upon which the burden of proof lay, on the basis that that party had failed to discharge the burden in the absence of any evidence.
Service charges – Determination by leasehold valuation tribunal – Section 27A of Landlord and Tenant Act 1985 – Parties advancing no evidence but agreeing for leasehold valuation tribunal (LVT) to determine disputed items on basis of contents of Scott schedules – LVT making determination – Whether reasons inadequate – Whether possible to redetermine disputed items by making findings of fact on basis of burden of proof in absence of evidence – Appeal allowedThe first respondent applied to the leasehold valuation tribunal (LVT) for a determination, under section 27A of the Landlord and Tenant Act 1985, of the service charge payable to the appellant landlord in respect of the flat of which she was the lessee for the years 1999 to 2005. Various disputed items were agreed and the LVT inspected the premises; directions were then given for the preparation of revised Scott schedules setting out the parties’ contentions on the items that remained in dispute. The hearing resumed at a later date but the parties did not call any evidence. Instead, they agreed that the LVT should determine the disputed items on the basis of the contents of the Scott Schedules to a total value of £214,540. The LVT gave a preliminary determination, setting out its conclusions as to the various service charge items and the amounts payable, with a view to the parties agreeing the terms of an order to be made by consent. However, no such agreement was reached and the LVT gave a final decision. In its reasons for the decision, the LVT stated that it had reviewed each item outstanding on the Scott schedules and that, in respect of all items that it had found to be recoverable as service charges, it was satisfied, on all the available evidence before it, that those items were reasonable and had been reasonably incurred.The appellant appealed, contending that the LVT had failed to give adequate reasons for its decision. The second respondent, as the residents’ association that represented the various lessees in the appellant’s buildings, acted on behalf of the first respondent on the appeal. It accepted that the LVT’s decision could not stand for the reason that the appellant had advanced. However, it contended that the appropriate course was for the LVT to determine the items in dispute, where those items turned on any finding of facts and no evidence was available but merely conflicting assertions, against the party upon which the burden of proof lay, on the basis that that party had failed to discharge the burden in the absence of any evidence.Decision: The appeal was allowed. The LVT could not determine the case on the basis of the contents of the Scott schedules and by applying the burden of proof; that would not comply with the overriding objective of dealing with cases justly. The dispute between the parties could justly be determined only by the making of findings of fact. Further, scope arose for disagreement as to where the burden of proof lay on many of the items in dispute, for example, as to whether it was for the appellant to show that certain works had been done to a reasonable standard or that expenditure had been incurred reasonably or for the respondents to show that they had not.Since the respondents had not also appealed, it was not the totality of the LVT’s decision that could not stand but only that part of it that disallowed, without giving adequate reasons, the items in the Scott schedule that the appellant claimed. The appropriate course was to remit the disputed items for a fresh decision by a differently constituted LVT. The costs order made by the previous LVT under section 20C of the 1985 Act should be quashed and the costs issue reconsidered by the newly constituted LVT in respect of all the costs of the proceedings before the LVT, including those already incurred.Timothy Evans (instructed by The Mitchell Plampin Partnership, of Maldon) appeared for the appellant; Stephen Kinch, solicitor (of Burt Brill & Cardens, of Worthing) appeared for the second respondent; the first respondent was present as an observer but did not appear as a respondent to the appeal and was not represented.Sally Dobson, barrister
