Clarise Properties Ltd v Rees & Anor

LADY JUSTICE ARDEN: This is an application for permission to appeal by Clarise Property Limited for whom Mr Mark Loveday appears.

It is for permission to appeal from the decision of the Upper Tribunal Lands Chamber, Mr Martin Rodger QC, dated 21 November 2014 which was itself on appeal from a decision of the Land and Leasehold Valuation Tribunal for the Wales Rent Assessment Committee (which I will call LVT Wales) dated 12 May 2004.

Before the Upper Tribunal, the proposed Respondent to this appeal was represented by Mr Barry Denyer-Green of counsel. He has put in some written submissions which we have read and considered.

There are two issues on this application. First, does the second appeal test set out in the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 ("the 2008 Order") made pursuant to section 13(6) of the Tribunals, Courts and Enforcement Act 2007 apply in this case? Second, is the relevant test satisfied?

I will take the first issue. Does the second appeal test apply? An application for permission to appeal from a decision of the High Court or a County Court which was itself made on appeal is what we call a second appeal. Only the Court of Appeal can give permission for a second appeal. Under CPR 52.13 the Court of Appeal may only grant such permission where the appeal would raise an important point of principle or practice, if it has not yet been established, or there is some other compelling reason to hear it.

The basis on which we are hearing this application is that the appeal does not involve an important point of principle or practice. Rather, what is sought to be made the subject of grounds of appeal are points on the interpretation of a lease dated 7 June 1991. They are specific to leases in that form and it is said by the Upper Tribunal that there is no important point of principle. For my purposes, it is not necessary to express a view on whether there is an important point of principle or practice. I express no final view on that point.

The rule which I have described relating to applications for permission to appeal in second appeals applies to decisions of the Upper Tribunal which are on appeal: see the 2008 Order. The 2008 Order has two paragraphs. Paragraph 1 says that:

Then paragraph 2 is the material provision. It replicates the second appeal test which applies for appeals from decisions of the High Court or the County Court which are on appeal to decisions of the Upper Tribunal which are on appeal. Accordingly, it reads:

The route for an appeal from the Leasehold Valuation Tribunal (and I mean Leasehold Valuation Tribunals in England or Wales) was to the Lands Tribunal: see section 175 of the Commonhold and Leasehold Reform Act 2002.

By virtue of the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009, the functions of the Lands Tribunal have been transferred to the Upper Tribunal and the Lands Tribunal has been abolished.

The difficulty, however, is that the 2008 Order is made under section 13(6) of the 2007 Act, which only applies to appeals from the Upper Tribunal from the First-tier Tribunal. The First-tier Tribunal is a tribunal created by the 2007 Act.

To explain this point, it is easiest to start with section 13(2). This provides:

Sub-section (14) is not material in this case.

Section 13(1) confers a right of appeal on a point of law to the Court of Appeal of England and Wales. It provides:

We are not concerned with excluded decisions.

The expression "relevant appellate court" is defined by sub-sections (11) to (13) of section 13, which are again easier to read by taking the last provision first. Sub-section (13) reads:

Sub-sections (11) and (12) then provide:

I have not seen a designation by the Upper Tribunal of this court for the purposes of section 13, but this court is clearly the most appropriate court for the appeal in this case.

So far, everything that I have read or said suggests that the appeal is a second appeal, but then we must go to sub-section (6). Sub-section (6) refers to sub-section (7) and that provides:

So that is limiting the appeals under section 13 to cases where the application is for permission or leave to appeal from any decision of the Upper Tribunal on an appeal under section 11.

Turning to section 11, it is sufficient to read sub-section (1). Sub-section (1) provides:

Again, we are not concerned with excluded decisions.

The LVT Wales is in this case clearly not the First-tier Tribunal. The LVT Wales was not created by the 2007 Act. That means, in my judgment, that applications for permission to appeal from the Upper Tribunal on appeal from the LVT Wales do not constitute appeals to which section 13 of the 2007 Act applies. It is nothing to the point that the position for LVTs in England is now different because different statutory provision has been made for them.

The Transfer of Tribunal Functions Order 2013, which was brought into force on 1 July 2013 (and which I shall call the English LVT Transfer of Functions Order), abolishes the rent assessment facilities, including Leasehold Valuation Tribunals, Rent Tribunals, Rent Assessment Committees and Residential Property Tribunals in England, Agricultural Land Tribunals in England and the Office of the Adjudicator for HM Lands Registry and transfers their functions to the First-tier Tribunal or, in certain cases, to the Upper Tribunal. This Order does not apply to Wales. In my judgment, the application before us is not for a second appeal but for an appeal in the ordinary way.

The conclusion that I have reached is supported by my holding on appeal in R (ToTel Ltd) v the FTT [2012] EWCA Civ 1401 in which I held that for legislation to remove a right of appeal in pending proceedings would amount to retrospective legislation. Lord Neuberger, Master of the Rolls, agreed with my judgment.

My judgment was based on a decision of the Privy Council in Colonial Sugar Refining Company Limited v Irving [1906] AC 360. The important point for present purposes is that it was held not necessary that the decision of the lower Tribunal from which it was desired to appeal should have been given in advance of the removal of the right. Here, the right removed would be a right of removal in those cases which did not qualify as second appeals.

The significance of retrospectivity is that clear legislative provision is required if the court is to hold that it is effective as retrospective legislation. Accordingly, if there were any doubt about the position, this court would have to interpret the legislation in favour of the Appellant and against retrospectivity, namely against the application of the second appeals test to an appeal on appeal from the LVT Wales. To overcome this difficulty, the legislation would have to clearly indicate that the second appeal test was to apply. It does not do so. So this line of authority also supports the conclusion I have reached.

But that is not the end of the matter. The Respondent has filed submissions and counsel for the Applicant has taken us through the points which counsel for the Respondent. Mr Barry Denyer-Green, made. There is an important point with which I must deal.

Mr Denyer-Green submits that this court should treat the decisions of specialist tribunals with particular respect, which of course I would do consistently with performing my function as an appellate court. Mr Denyer-Green further submits this court should thus in effect apply the second appeals criteria to the Upper Tribunal even if it is not a decision of the Upper Tribunal on appeal from the First-tier Tribunal.

Mr Denyer-Green cites in support of his submission Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, Cawsand Fort Management Co Ltd v Stafford [2007] EWCA Civ 231 and Napp Pharmaceuticals Holdings Ltd v Director General of Fair Trading [2002] EWCA Civ 796.

I accept that this may be the right approach in some cases, particularly those cases where the court is concerned with a decision within the specialist function of the Tribunal, but I do not consider that it applies in this case for two reasons.

First, the grounds of appeal are, as I have explained, based on points of construction of a lease and therefore no question of the specialist expertise of what was formerly the Lands Tribunal is involved in this case.

Second, it would, in my judgment, be contrary to the statutory scheme to do this. Section 13 of the 2007 Act draws a distinction between appeals from the Upper Tribunal on appeal from the First-tier Tribunal and appeals from the Upper Tribunal on appeals from other tribunals, thus signifying that Parliament did not interfere with existing rights of appeal for the latter. Indeed, the reason why Parliament may have taken this course is the decision in Colonial Sugar to which I have already referred.

The distinction which I have made is confirmed in the context of Leasehold Valuation Tribunals by the provisions of the English LVT Transfer of Functions Order. The restriction in the Order to LVTs in England would suggest that the consent of the Welsh government is required, which means it would be contrary to the spirit of devolution for Welsh appeals simply to be assimilated to English appeals when it was not appropriate to do so. It will, moreover, be seen that I have reached my conclusion on a matter of the interpretation of the 2008 Order, and that it is not, as Mr Denyer-Green submits, necessary to hold that any part of the 2008 Order is ultra vires. Nor, contrary to his submission, is the reference to Wales in the context of the court sufficient to displace the interpretation which I have found.

The second issue: is the relevant test satisfied? I will deal with this shortly. The relevant test is whether there is a real prospect of success. Mr Denyer-Green's submissions accept that the points raised in the proposed grounds of appeal are arguable, but he does not accept that there is a real prospect of success.

This seems to me to be a very fine line to draw. In my judgment, the points which the Appellant seeks to raise are points of construction of a legal document of some complexity. Mr Loveday has set out his arguments in his skeleton argument in support of the appellant's notice. His arguments are not trivial or obviously wrong.

I do not wish to say more because I am going to give permission to appeal. I would hold that the test for a giving permission for an appeal is passed and permission should be given.

SIR BERNARD RIX: I agree.