Sinclair Gardens Investments (Kensington) Ltd. v Lands Tribunal

This is an application for judicial review of a decision of the Lands Tribunal dated the 2^nd December 2003 refusing leave to appeal against a decision of a Leasehold Valuation Tribunal (‘LVT’) dated 3^rd June 2003.

The Claimant is the landlord of 75 Eardley Crescent, London, SW5, a four storey terraced house converted into 6 flats. In 2002 the lessees of two of the flats, the Interested Parties in these proceedings, challenged the Claimant’s service charge expenditure for the years ending 24^th June 1999, 2000, 2001, 2002 and the budget for 2003.

Their applications under section 19(2A) of the Landlord and Tenant Act 1985 (as amended by the Housing Act 1996) (‘the 1985 Act’ and the ‘1996 Act’ respectively) were heard by an LVT on 10^th – 12^th March and 28^th April 2003. In its decision dated 3^rd June 2003 the LVT disallowed a number of the Claimant’s costs including, in particular, the cost of certain damp proofing works.

Section 31A of the 1985 Act (inserted by the 1996 Act) deals with the LVT’s jurisdiction to resolve disputes as to service charges. Sub-section (5) applies the provisions of (inter alia) paragraph 2 of schedule 22 to the Housing Act 1980 to an LVT exercising jurisdiction under section 31A. Paragraph 2 provides that no appeal may be made to the High Court under section 11 of the Tribunals and Inquiries Act 1992 against an LVT’s decision, but that a dissatisfied party may appeal to the Lands Tribunal.

Permission to appeal to the Lands Tribunal from a decision by an LVT is not normally required, but sub-section (6) of section 31A provides that:

“No appeal shall lie to the Lands Tribunal from a decision of a leasehold valuation tribunal under this Act without the leave of the leasehold valuation tribunal concerned or the Lands Tribunal.”

Section 3 of the Lands Tribunal Act 1949 (‘the 1949 Act’) deals with procedure and appeals. Sub section (4) states that:

“A decision of the Lands Tribunal shall be final:

Provided that any person aggrieved by the decision as being erroneous in point of law may, within such time as may be limited by rules of court, in England and Wales appeal to the court and otherwise require the tribunal to state and sign a case for the decision of the court and, where the decision of the Lands Tribunal is given on a review by way of appeal of the previous decision of another person, that person if dissatisfied with the decision of the Lands Tribunal shall be treated for this purpose as a person aggrieved thereby.”

The Court referred to in sub-section (4) is the Court of Appeal: see sub-section (11).

Sub-section 3(6) authorises the making of rules “for regulating proceedings before the Lands Tribunal.” Pursuant to this power the Lord Chancellor made The Lands Tribunal (Amendment) Rules 1997 (‘the Amendment Rules’). The Amendment Rules introduce a new Part IIA, dealing with Applications for Leave to Appeal, into the Lands Tribunal Rules 1996 (‘the Rules’). Rule 5A states that:

“Part IIA applies to applications to the Lands Tribunal for leave to appeal against a decision of the Leasehold Valuation Tribunal under section 31A of the Landlord and Tenant Act 1985”

Rule 5C(1) provides that:

“A person (‘the applicant’) may only apply to the Lands Tribunal for leave to appeal if he has made an application to the Leasehold Valuation Tribunal for such leave and that application has been refused.”

The remainder of rule 5C sets out the time within which and the manner in which an application for leave must be made to the Lands Tribunal. The parties to the hearing before the LVT are served with the relevant documents and given an opportunity to make written representations to the Tribunal as to whether or not leave should be granted.

Rule 5D prescribes how an application for leave is to be determined by the Lands Tribunal:

“(1)

The Tribunal shall determine an application for leave without a hearing unless it considers that there are special circumstances which make a hearing necessary or desirable.

(2)

The registrar shall serve on the applicant and each respondent a notice recording the decision of the Tribunal on the application for leave.”

If leave is refused the Registrar refunds the fee paid by the Appellant (rule 5E).

The Lands Tribunal (Amendment) Rules 2003 which came into force on 7^th December 2003 substitute “permission” or “permission to appeal” for “leave” or “leave to appeal”.

On the 18^th June 2003 the Claimant applied to the LVT for leave to appeal. On 10^th July the LVT refused leave, setting out its reasons for so doing, and stating that a further application for leave could be made to the Lands Tribunal.

On the 2^nd July the Claimant applied to the Lands Tribunal for leave to appeal. The procedure set out in rule 5C was followed: both the Claimant and the interested parties made written submissions. On the 2^nd December 2003 Mr. N J Rose FRICS, a member of the Lands Tribunal, refused leave to appeal for the following reasons:

“The conclusions of the Leasehold Valuation Tribunal on the issues about which the applicant complains are ones which it could reasonably have reached. In the light of the submissions which have been made by the parties there are no reasonable grounds for concluding that the decision may have been wrong.”

On 6^th January 2004 the Claimant applied for permission to apply for judicial review of the Tribunal’s decision. In support of its grounds the Claimant asserted that it had no alternative remedy:

“There is clear authority, albeit related to appeals from other tribunals, that a refusal of permission to appeal by the Lands Tribunal is not a decision within the meaning of section 3(4) of the Lands Tribunal Act 1949.”

In its Acknowledgement of Service in response to the Claim Form the Registrar of the Lands Tribunal stated that:

“The Lands Tribunal tends to the view that a decision refusing leave to appeal from a decision of a Leasehold Valuation Tribunal is a decision for the purposes of Section 3(4) of the 1949 Act, so that appeal against it would lie to the Court of Appeal, and the Lands Tribunal would not be a party to the appeal.

In the event that the applicant’s remedy is held to lie in judicial review, since the application for judicial review arises out of inter partes proceedings, the Lands Tribunal would think it inappropriate that it should actively respond.”

The Claimant’s Solicitors took issue with the Registrar’s view that an appeal lay to the Court of Appeal and correspondence ensued. In a letter dated 9^th January the Registrar explained his reasoning in somewhat greater detail.

In his Skeleton Argument filed on behalf of the Claimant, Mr. Letman submitted that there were two issues to be decided:

“(1)

The jurisdiction issue; whether or not a refusal (or grant) of permission to appeal from a decision of the Leasehold Valuation Tribunal (under the Landlord and Tenant Act 1985) by the Lands Tribunal is itself a decision for the purposes of section 3(4) of the Lands Tribunal Act 1949, and thus whether it should be appealed to the Court of Appeal or judicially reviewed.

(2)

Subject to (1) above, whether or not the refusal of permission to appeal by the Lands Tribunal and its conclusion that there were no reasonable grounds for concluding that the decision of the LVT may have been wrong, because of the LVT wrongly interpreting or applying the law and taking into account irrelevant matters, was ‘Wednesbury’ unreasonable.”

In answer to (1) it was submitted that the refusal (or grant) of permission to appeal by the Lands Tribunal is not a relevant decision for the purposes of section 3(4) of the 1949 Act. In answer to (2) it was submitted that no reasonable tribunal would have refused permission to appeal.

In accordance with the indication in the second paragraph of its Acknowledgement of Service the Lands Tribunal played no further part in the proceedings. The interested parties were ordered to file any evidence and skeleton arguments by the 21^st June 2004. The case was listed for the 23^rd July. Mr O’Keefe sent a letter to the Court explaining why, due to a lack of legal representation, he would not be participating in the proceedings. When I received the papers on the previous day nothing had been heard from Ms. Da Graca.

Having read the papers I was concerned that the Claimant’s Skeleton Argument might not have correctly identified the second issue. Shortly before the hearing was due to commence on the 23^rd July my clerk e-mailed and faxed the following letter to Mr. Letman:

“Mr Justice Sullivan has asked me to draw your attention to the Court of Appeal’s decision in R(Sivasubramaniam) v. Wandsworth County Court [2003] 1 WLR 475.

He will wish to hear argument as to why the approach set out in paragraphs 49 – 56 of that case should not be applied if he accepts your first submission: that there is no appeal to the Court of Appeal from the Lands Tribunal’s refusal of leave to appeal.”

When the case opened Ms. Da Graca appeared and produced a witness statement which explained that she could not afford to be represented at the hearing. Nevertheless, the witness statement was, in effect, a skeleton argument which referred to a number of authorities, including Sivasubramaniam. In her witness statement Ms. Da Graca posed the question whether the approach in Sivasubramaniam applied to the Lands Tribunal, and pointed out that the Claimant’s submissions were silent on the point. Mr. O’Keefe attended to observe the proceedings.

Since Mr. Letman had not received either my letter or Ms. Da Graca’s witness statement until shortly before the hearing commenced I granted a short adjournment so that he could take instructions on the point and consider whether he wished to ask for more time to consider the implications of Sivasubramaniam.

After a short adjournment Mr. Letman said that while he was in a position to make (and did make) brief submissions, since the point was of wider interest, and of considerable importance to the Claimant, which owns many other properties, he would wish to have an opportunity to consider it in greater depth and respond in detail.

Neither of the Interested Parties contended that the Claimant was entitled to appeal to the Court of Appeal against the Land’s Tribunal’s refusal of leave. Having read his Skeleton Argument I did not ask Mr. Letman to make any further submissions on issue (1) above. All parties were agreed that the “Sivasubramaniam point” should be dealt with by way of written submissions. I therefore ordered that the Claimant’s written submissions be filed and served within 14 days, and the Interested Parties’ responses (if any) be filed and served within 14 days thereafter. It was agreed that it was sensible to defer consideration of issue (2) in the Claimant’s Skeleton Argument pending resolution of the “Sivasubramaniam point”. I received written submissions from Mr Letman, but nothing further was received from the Interested Parties.

I accept the Claimant’s submission that the Lands Tribunal’s refusal of permission to appeal is not a “decision” for the purposes of subsection 3(4) of the 1949 Act. The starting point is the decision of the House of Lords in Lane v. Esdaile [1891] AC 210. The question was whether a refusal of the Court of Appeal to grant special leave to appeal was an order or judgement of the Court of Appeal within the meaning of section 3 of the Appellate Jurisdiction Act 1876, thus giving a right of appeal to the House of Lords. At pages 211 – 212 Lord Halsbury LC said this:

“But when I look not only at the language used, but at the substance and meaning of the provision, it seems to me that to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop an appeal – that there should not be an appeal unless some particular body pointed out by the statute (I will see in a moment what that body is), should permit that an appeal should be given. Now just let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself. How could any Court of Review determine whether leave ought to be given or not without hearing and determining upon the hearing whether it was a fit case for an appeal? And if the intermediate Court could enter and must enter into that question, then the Court which is the ultimate Court of Appeal must do so also. The result of that would be that in construing this order, which as I have said is obviously intended to prevent frivolous and unnecessary appeals, you might in truth have two appeals in every case in which, following the ordinary course of things, there would be only one; because if there is a power to appeal when the order has been refused, it would seem to follow as a necessary consequence that you must have a right to appeal when leave has been granted, the result of which is that the person against whom the leave has been granted might appeal from that, and inasmuch as this is no stay of proceedings the Court of Appeal might be entertaining an appeal upon the very same question when this House was entertaining the question whether the Court of Appeal ought ever to have granted the appeal. My Lords, it seems to me that that would reduce the provision to such an absurdity that even if the language were more clear than is contended on the other side one really ought to give it a reasonable construction. ”

Lane v. Esdaile was followed in In the matter of the Housing of the Working Classes Act 1890 Ex parte Stevenson [1892] 1 QB 609. A party dissatisfied with the amount of compensation awarded under the 1890 Act could, “upon obtaining the leave of the High Court” submit the question of the proper amount of compensation to a jury. Leave was refused by a High Court Judge and the claimant attempted to appeal to the Divisional Court which held that there was no right of appeal. On appeal to the Court of Appeal, Lord Esher MR said this, at page 611:

“I am, on principle and on consideration of the authorities that have been cited, prepared to lay down the proposition that, wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature of the thing, final and conclusive and without appeal, unless an appeal from it is expressly given. So, if the decision in this case is to be taken to be that of the judge at chambers, he is the legal authority to decide the matter, and his decision is final; if it is to be taken to be that of the High Court, then they are the legal authority entrusted with the responsibility of deciding whether there shall be leave to appeal, and their decision is final. In either case there is no appeal to this Court. What was said in the case of Lane v. Esdaile supports the view that I am taking. But the very nature of the thing really concludes the questions; for, if, there can be an appeal from that decision, the result is an absurdity, and the provision is made of no effect. If the contention for the claimant be correct, it would follow that the case might be taken from one Court to another till it reached the House of Lords on the question of whether there should be leave to appeal. That cannot be so. For these reasons, I think the appeal must be dismissed.”

Fry and Lopes LJJ agreed, the latter saying at pages 612 – 613:

“Where an appeal is given that is made subject to the leave of the Court or a judge, or any other legal authority, I think that the granting or refusal of leave by such Court or judge, or other legal authority, is final and unappealable. The object of making appeals subject to leave is to prevent unnecessary and frivolous appeals. If an appeal were allowed from the granting or refusal of leave to appeal, the result would be that, instead of checking appeals, they might be multiplied to a most mischievous extent; for an appeal from the granting or refusal of leave might be carried from the Divisional Court to this Court, and from this Court to the House of Lords.”

These decisions were followed by the Court of Appeal in the context of a refusal by the Social Security Commissioner of leave to appeal from a Supplementary Benefit Tribunal, in Bland v. Chief Supplementary Benefit Officer [1983] 1 WLR 262. The Claimant applied to the Court of Appeal for leave to appeal against the Commissioner’s refusal of leave, relying on section 14 of the Social Security Act 1980. Sir John Donaldson MR first set out the terms of section 14:

“Section 14(1) reads: “subject to subsections (2) and (3) of this section an appeal on a question of law shall lie to the appropriate court from any decision of a commissioner.” “A commissioner” is of course a social security commissioner. “The appropriate court” is the Court of Appeal, as is clear from subsection (4) of section 14…The important subsection is subsection (2), which reads:

“No appeal under this section shall lie from a decision except – (a) with the leave of the commissioner who gave the decision or, in a case prescribed by the regulations, with the leave of a commissioner selected in accordance with regulations; or (b) if he refuses leave, with the leave of the appropriate court.”

Reconstructing that subsection to make it slightly more intelligible, it reads: “No appeal under this section shall lie from a decision except with the leave of the commissioner or, if he refuses leave, of the Court of Appeal.”

It was submitted on behalf of the Claimant that the Commissioner’s refusal of leave to appeal from the Tribunal was a “decision” for the purposes of section 14 and that Lane v. Esdaile and Ex parte Stevenson could be distinguished. Rejecting these arguments, Sir John Donaldson said at page 267:

“The reasoning of the Court of Appeal in Ex parte Stevenson [1892] 1 QB 609 is not based upon a refusal to interfere with a discretion. The court held that the grant or refusal of leave to appeal is a very special king of decision from which prima facie there can be no appeal, and, as Lord Esher MR said for the reasons set out in the judgements, it would require express words to enable any appeal to be brought.

Section 14 of the Act of 1980 does contemplate an appeal from a decision of the commissioner, and I would accept that in a sense the grant or refusal of leave to appeal to the commissioner is a decision, just as in Ex parte Stevenson [1892 1 QB 609 it was accepted that the grant or refusal of leave to appeal was an order of the High court, but it is not the kind of decision which, in my judgement, section 14 contemplates. That section relates to a decision which determines the matter in dispute.

Accordingly, following Ex parte Stevenson [1892] 1 QB 609, I would hold that there is no jurisdiction in this court to grant leave, and for that reason the application should be dismissed. If necessary, the applicant should seek judicial review but, as I apprehend, it will probably not be necessary for him to do so.”

Kerr LJ and Sir Sebag Shaw agreed, the latter adding:

“An appeal from a decision under section 14(1) of the Act of 1980 must mean an appeal from a decision on some matter of law which is the basis of the commissioner’s finding. If one included in that the refusal of leave, one would remove a valuable and important practical barrier to the pursuit of frivolous appeals. Accordingly, although I accept that a refusal may in certain circumstances by termed a decision, it is not the kind of decision which is contemplated by section 14(2)(a) of the Act of 1980. Otherwise the brake which the statute puts on the proliferation of appeals from the commissioner would be made abortive.”

This reasoning applies with no less force to the statutory scheme in the present case. Parliament clearly intended that subsection 31A(6) should place a brake on a proliferation of appeals from decisions of LVT’s relating to service charges. That brake would be made abortive if there was a right to appeal under section 3(4) of the 1949 Act to the Court of Appeal against a refusal of permission to appeal by the Lands Tribunal.

The decision of the Court of Appeal in R v. Lands Tribunal Ex parte City of London Corporation[1982] 1 WLR 258 is of some, albeit limited, assistance in that it demonstrates that not every ruling or determination by the Lands Tribunal is a “decision” for the purposes of subsection 3(4) of the 1949 Act. The Lands Tribunal had refused to order the discovery of certain documents. The Court of Appeal rejected the Corporation’s submission that “decision” in subsection 3(4) included not only a final decision but also an interlocutory decision.

A landlord who had been refused permission by the Lands Tribunal to appeal against an LVT’s decision under Part II of the Landlord and Tenant Act 1987 applied for permission to appeal to the Court of Appeal in Orchard Court Resident’s Association v. St Anthony’s Homes Ltd [2003] 2 EGLR 28. The Civil Appeals Office had suggested that there may be no right of appeal to the Court of Appeal because the Lands Tribunal’s decision to refuse leave was not a decision within the meaning of subsection 3(4) of the 1949 Act. Keene LJ said that this issue “could give rise to some interesting arguments”, but found it unnecessary to deal with them because there was no real prospect of success on the substantive grounds being advanced by the landlord. Agreeing that the application should be dismissed Carnwath LJ said in paragraph [18]:

“I would also add that it would be rare for what would, in effect, be a second appeal to this court to be appropriate. Parliament clearly intended these matters should be left to the good sense of the leasehold valuation tribunal, under the expert supervision of the Lands Tribunal.”

Parliament’s intention when enacting the 1996 Act inserting sections 19(2A) – (2C) and 31A – 31C into the Landlord and Tenant Act 1985 is plain: tenants and their landlords were to be given a simple, expeditious and inexpensive (see sub-section 31A(4) ) means of resolving disputes about service charges. Rather than litigating such matters in the Courts where tenants might be deterred by the expense of legal representation and the risk of having to pay costs, they should be dealt with by specialist tribunals, and “left to the good sense of the LVT under the expert supervision of the Lands Tribunal”. The Amended Rules ensure that in most cases the Lands Tribunal determines any application for permission to appeal on the papers, without the expense of a hearing. Treating a refusal of permission to appeal by the Lands Tribunal as a “decision” for the purposes of subsection 3(4) of the 1949 Act would subvert this statutory scheme. The Claimant’s contention that there is no right of appeal under subsection 3(4) is therefore correct.

There is no doubt that the Administrative Court has power to judicially review decisions of the Lands Tribunal to refuse (or grant) permission to appeal under subsection 31A(6). The question is whether the considerations set out in paragraph 29 above apply with equal force to applications for permission to claim judicial review, so that the Court should refuse to grant permission to claim judicial review save in exceptional circumstances of the kind described in paragraph 56 of the Court of Appeal’s judgement in Sivasubramaniam:

“The possibility remains that there may be very rare cases where a litigant challenges the jurisdiction of a circuit judge giving or refusing permission to appeal on the ground of jurisdictional error in the narrow, pre-Anisminic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant’s right to a fair hearing. If such grounds are made out we consider that a proper case for judicial review will have been established.”

In Sivasubramaniam the Claimant was attempting to judicially review decisions of Circuit Judges refusing permission to appeal from decisions of District Judges. Section 54 of the Access to Justice Act 1999 (“the 1999 Act”) allowed for the extension of the requirement to obtain permission to appeal, which applied to most appeals to the Court of Appeal, to all appeals to the County Court and the High Court. Sub-section (4) provides:

“No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court).”

The Court of Appeal concluded that while the jurisdiction of the High Court to grant judicial review was not ousted by section 54(4) it should not, as a matter of discretion, be exercised save in exceptional circumstances. The Court referred to the “coherent statutory scheme” governing appeals at all levels short of the House of Lords set up by the 1999 Act and the Civil Procedure Rules 1998, and observed that the scheme:

“has the merit of proportionality. To permit an applicant to bypass the scheme by pursuing a claim for judicial review before a judge of the Administrative Court is to defeat the object of the exercise…this should not be permitted unless there are exceptional circumstances [paragraph 48]”

Summary dismissal of applications for permission to claim judicial review of refusals of permission to appeal from decisions of District Judges on the ground that:

“Parliament has put in place an adequate system for reviewing the merits of decisions made by district judges and it is not appropriate that there should be a further review of these by the High Court”

would reflect the intention of Parliament when enacting section 54(4) of the 1999 Act [para. 54].

Mr Letman submitted that Sivasubramaniam should be distinguished on the basis that the Court of Appeal was concerned with judicial review of decisions to refuse permission to appeal made by the Courts, where Parliament had made its intentions clear by enacting section 54(4), and not with judicial review of such decisions when made by tribunals, in circumstances where section 54(4) was not applicable and there was no legislative equivalent. Sivasubramaniam was not authority for the proposition that, as a matter of general principle, applications for judicial review of decisions by tribunals refusing permission to appeal should, save in exceptional circumstances, be refused.

Although the circumstances in which it might be appropriate to permit applications for judicial review of decisions by tribunals refusing permission to appeal were not directly in issue in Sivasubramaniam, Counsel for the Lord Chancellor’s Department drew the Court’s attention to what the Court described as “a somewhat analogous situation”, where the practice of granting judicial review of decisions by the Immigration Appeal Tribunal to refuse permission to appeal from Adjudicators’ decisions had not been challenged as inappropriate [para. 50].

Noting that “on the face of it, judicial review of such a decision might seem anomalous”, the Court said in paragraphs 51 and 52:

“The tribunal has the qualities of a court – certainly to the extent of satisfying the requirements of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. If judicial review of refusal of permission to appeal by the tribunal is appropriate, is there any basis on which it can be ruled out of court where the challenge is to the refusal of permission to appeal by a judge of a county court?

There are, in our judgement, special factors which fully justify the practice of entertaining applications for permission to claim judicial review of refusals of leave to appeal by the tribunal. In asylum cases, and most cases are asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture. The number of applications for asylum is enormous, the pressure on the tribunal immense and the consequences of error considerable. The most anxious scrutiny of individual cases is called for and review by a High Court judge is a reasonable, if not an essential, ingredient in that scrutiny.”

The 1985 Act (as amended) and the Amended Rules have set up a “coherent statutory scheme” for dealing with disputes relating to service charges. In seeking to avoid expensive litigation the scheme is proportionate to the subject matter in dispute. To permit the Claimant to bypass the statutory scheme by pursuing this application for judicial review would, on the face of it, defeat the object of the exercise. A decision to grant, or refuse, this application could be the subject of an application for permission to appeal to the Court of Appeal. If refused by this Court, the application for permission could be renewed to the Court of Appeal, resulting in that Court having to consider the merits of the refusal of permission to appeal by the Lands Tribunal notwithstanding the fact that the refusal is not a “decision” for the purposes of subsection 3(4) of the 1949 Act.

Like the Immigration Appeal Tribunal, the Lands Tribunal has the qualities of a court – certainly to the extent of satisfying the requirements of article 6 of the Convention. Appeals from decisions of both tribunals go directly to the Court of Appeal. For its size, the Lands Tribunal does have a substantial workload but it cannot sensibly be compared with the immense pressures on the Immigration Appeal Tribunal. Although property rights are important, and protected by Article 1 of Protocol 1 to the Convention, it is not suggested that they can be equated with the fundamental human rights that are in issue in asylum cases where “the most anxious scrutiny of individual cases is called for”. Are there any other “special factors” which would justify a practice of entertaining claims for judicial review of refusals of leave to appeal by the Lands Tribunal in the absence of exceptional circumstances?

Mr Letman submitted that whatever the position might be in relation to the Immigration Appeal Tribunal, the Court of Appeal’s reasoning in paragraphs 53 and 54 of its judgement had no application to refusals of permission to appeal by the Lands Tribunal under rules 5A – E of the Rules. A litigant refused permission to appeal against a decision of a district judge could

“review his application at an oral hearing if it is refused on paper. The decision challenged will, in this way, be open to review by a judge.” [para. 53]

The Claimant in the present case did not have the right to an oral hearing, and there was no review of the LVT’s decision by a judge.

While the Claimant did not have a right to renew its application to the Lands Tribunal at an oral hearing, rule 5C enabled the Claimant to set out its criticisms of the LVT’s decision in as much detail as it wished. The interested parties were given an opportunity to respond. Having considered the parties’ written representations the Lands Tribunal had power to order a hearing if it considered that there were special circumstances which made a hearing necessary or desirable: see rule 5D. The Claimant did not identify any special circumstances which might have made a hearing necessary or desirable. The LandsTribunal’s power to order a hearing under rule 5D may be contrasted with rule 18(1) of The Immigration and Asylum (Procedure) Rules 2003 (“the 2003 Rules”) which provides that “an application for permission to appeal to the [Immigration Appeal] Tribunal must be decided by a legally qualified member of the Tribunal without a hearing”. The lack of any discretion to hold a hearing before deciding whether to grant permission to appeal is perhaps a reflection of the immense pressure on the Immigration Appeal Tribunal (see also paras. 44 – 46 below).

A decision by the Immigration Appeal Tribunal to refuse permission to appeal must be taken by a legally qualified member of the Tribunal. The Chairman of an LVT is usually (but not necessarily) legally qualified. The Chairman of the LVT in the present case was so qualified. In accordance with normal practice the other two members of the LVT were a chartered surveyor and a lay member. Mr Letman placed considerable emphasis upon the fact that Mr Rose, as a Surveyor member of the Lands Tribunal, is not legally qualified. Thus, there had been no “judicial” review of the LVT’s decision. I acknowledge that there is some force in this submission, but Parliament in enacting section 31A(6), and the Lord Chancellor in making rules 5A – 5E of the Amendment Rules must have been well aware of the composition of the Lands Tribunal.

Section 2 of the 1949 Act deals with the membership of the Lands Tribunal. It consists of a legally qualified President and such number of other members as the Lord Chancellor may determine, appointed by the Lord Chancellor: sub-section 2(1). The other members must be either legally qualified or “persons who have experience in the valuation of land appointed after consultation with the president of the Royal Institute of Chartered Surveyors” sub-section 2(2). Since it was established in 1949 the Lands Tribunal’s membership has been a mixture of lawyers and surveyors, with the latter outnumbering the former for most, if not all, of the Tribunals’ existence. In addition to the President there are currently four members of the Lands Tribunal, one legal member and three surveyor members. The Amendment Rules (unlike rule 18 of the 2003 Rules) do not reserve determinations under rule 5D to the legal members of the Tribunal.

Whether the member of the Lands Tribunal determining the application under rule 5D is a lawyer or a surveyor the Tribunal has the qualities of a “Court” for the purposes of article 6 of the Convention, and I do not consider that the Administrative Court would be justified in adopting a different approach to applications for permission to apply for judicial review of decisions refusing (or granting) permission to appeal under rule 5D depending upon whether the member determining the application was a lawyer or a surveyor. The Lands Tribunal’s work requires a combination of legal and valuation skills, the proportions varying from case to case. In practice the legal members acquire considerable valuation expertise, and the surveyor members acquire considerable expertise in the law relating to valuation.

As noted above, there is a “coherent statutory scheme” for dealing with disputes relating to service charges. It does not ensure that an LVT’s decision will be “reviewed” by a legally qualified judge, but that is not inconsistent with the underlying purpose of the scheme: to remove such disputes from the Courts and dispose of them simply, expeditiously and inexpensively by a hearing before a specialist tribunal, the LVT, with a limited right of appeal to the Lands Tribunal. The present case may provide an illustration of why Parliament wished to introduce a “non-legalistic” scheme. Given the extent of its property holdings the Claimant landlord is legally represented by Counsel and Solicitors, the tenants are unrepresented. The Claimant landlord has a wider interest in the jurisdictional issues raised by this claim, the tenants are simply concerned with their own service charges.

Section 54(4) has no application to this case, and having enacted section 31A(6) Parliament did not expressly state that “no appeal may be made against a decision of [the Lands Tribunal] under this section”. But this does not mean that Parliament’s intention in enacting section 31A(6) was unclear. For the reasons set out in paragraphs 22 – 29 above Parliament must have intended that there should be no appeal to the Court of Appeal under section 3(4) of the 1949 Act from a refusal of permission to appeal by the Lands Tribunal under section 31A(6). Applying the approach in Sivasubramaniam would reflect that intention.

As from the 1^st April 2003, section 101 of the Nationality, Immigration and Asylum Act 2002 introduced a new procedure – statutory review – for challenging decisions of the Immigration Appeal Tribunal refusing (or granting) applications for permission to appeal from adjudicators. The Immigration Appeal Tribunal’s decision is reviewed “by reference only to written submissions” by a High Court Judge, whose decision is final: see section 101(3).

In R(on the application of G) v. Immigration Appeal Tribunal (2004) 3 All ER 286, Collins J, applying Sivasubramaniam, rejected claims for judicial review of refusals by the Immigration Appeal Tribunal of permission to appeal in two cases where applications under section 101 had been rejected by a High Court Judge. It was argued that statutory review was less satisfactory than judicial review because there was no right to an oral hearing and no access to the appellate courts. Rejecting that submission Collins J said in para. [11]:

“It seems to me that where Parliament has introduced a new procedure to deal with a particular problem which it perceives to exist, the court should hesitate long before considering that procedure to be less than satisfactory. Parliament was aware of the existence of judicial review and quite clearly intended, as I have said, that statutory review should take its place. It clearly regarded the new procedure as satisfactory. In the light of the two-tier appeal system which exists, it was in my view entitled so to regard it. It is proportionate to recognise the need for consideration by a High Court judge but, because of the very real problems created by delay and the pursuit of unmeritorious claims, to limit that consideration in the way which s101 of the 2002 Act and CPR Pt 54 has ordained.”

Having referred to paragraph 52 of the Court’s judgement in Sivasubramaniam (para. 34 above) Collins J said:

“It is to be noted that review by a High Court judge is referred to, not the need for the whole panoply of judicial review. When Sivasubramaniam’s case was decided, the 2002 Act was about to be passed but the relevant provisions were not in force so that judicial review was still the only route available. Statutory review does involve review by a High Court judge and there is no reason to believe that the court’s observations which I have just cited were intended to require more than that.

An important feature of statutory review is that it permits recourse to a High Court judge whose decision is final.”

Although review by a High Court Judge is a proportionate requirement in Asylum cases, an oral hearing is not essential even though fundamental human rights are in play in such cases.

For these reasons I am satisfied that although there are differences between the statutory scheme established by the 1999 Act and the Civil Procedure Rules and that established by the 1985 Act as amended and the Amendment Rules, those differences are not such as to justify the adoption of a different approach to an attempt to bypass the statutory scheme by making an application for judicial review. The Court has jurisdiction to grant such an application, but it should not do so unless there are exceptional circumstances of the kind described in Sivasubramaniam. For the avoidance of doubt, I should make it clear that these conclusions are based upon the particular statutory scheme introduced by the 1996 Act and the Amendment Rules. Different considerations may apply to refusals of permission to appeal by other tribunals under different statutory provisions.

In so concluding I do not overlook Lord Donaldson’s observation in Bland (para. 25 above) that “if necessary the applicant should seek judicial review”. There appears to have been no argument in that case as to whether it would be appropriate to allow an applicant to seek judicial review of a decision against which there could be no appeal. Moreover, it had been conceded that the supplementary benefit appeal tribunal’s decision was flawed and it was hoped that the error could be rectified without recourse to litigation (see p.265), hence Lord Donaldson’s observation that “it [would] probably not be necessary” for the applicant to seek judicial review.

Mr Letman submitted in the alternative that if the principles in Sivasubramaniam were applicable and exceptional circumstances were required, “exceptional circumstances” should be given a wider meaning so as to include “gross and obvious errors of law” on the part of the Lands Tribunal when refusing permission to appeal. In the further alternative he submitted that if exceptional circumstances were limited to errors of jurisdiction in the narrow, pre Anisminic sense, (or serious procedural irregularities) then the Lands Tribunal had committed such a jurisdictional error.

Whether an error of law is fairly described as “ gross and obvious” is very much a question of degree and judgement. Many perceived errors of law are “gross and obvious” in the mind of the losing party. Since it will often be impossible to decide whether there has been an error of law, let alone whether the error is “gross and obvious” without hearing full legal argument, applying such a test when considering applications for permission to claim judicial review would subvert the statutory scheme just as effectively as removing the need to show exceptional circumstances. A decision of the Administrative Court that an error or law was (or was not) “gross and obvious” could be the subject of an application for permission to appeal to the Court of Appeal. On a renewed application the Court of Appeal would (in effect) have to consider the merits of a determination against which there was no right of appeal under section 3(4) of the 1949 Act.

The submission that the Lands Tribunal has committed a jurisdictional error in the narrow, pre Anisminic sense, is belied by the Claimant’s formulation of issue (2) (see para. 15 above) and the arguments advanced in the Claimant’s Skeleton Argument in relation to that issue. Amongst other documents, reference was made to the Claimant’s Skeleton Argument before the LVT, the Grounds of Appeal to the Lands Tribunal and the Skeleton Argument submitted to the Tribunal with those Grounds. It was contended that the “Tribunal’s decision was so unreasonable that no reasonable tribunal properly directed could have reached such a conclusion”, and the Claimant’s position was summarised as follows:

“In summary the Claimant contends that there are plainly reasonable grounds for concluding the decision of the LVT may have been wrong on the disallowed service charge items as follows:

1)

Damp proofing and electrical works (decision paragraphs 27 to 34), the decision is plainly over simplistic, it cannot be shown that the LVT applied the relevant law at all, they failed even to consider the lessor’s express powers to amend the structure in the course of repair and to carry out such works (not being repair work) as may be necessary or advisable for the proper maintenance of the demised premises and the building;

2)

Surveyor’s Costs (decision paragraphs 40 to 42), the Claimant repeats the above given that these costs are associated with the damp proofing and electrical works;

3)

Management charges (decision paragraphs 43 to 47), the various criticisms made by the LVT to seek to justify a reduction in these fees are obviously irrelevant and can provide no justification for the 25% reduction imposed;

4)

Postage costs (decision paragraphs 16 to 17), the LVT ignored the requirements of section 20(4)(b) of the 1985 Act;

5)

Graffiti removal costs (decision paragraph 39), the incurred costs were reduced on the basis of a mere assertion that they were excessive without reference to any material in support of such a conclusion.”

It is plain that the Claimant was seeking permission from the Lands Tribunal to re-argue the merits of the LVT’s decision to disallow certain costs. The criticisms of the LVT’s decision raise a mix of factual, legal and valuation issues. They are precisely the kind of issues that Parliament wished to be dealt with in a non-legalistic way, and “left to the good sense of the LVT under the expert supervision of the Tribunal”. Even if the LVT (or the Tribunal in deciding that there were no reasonable grounds for concluding that the LVT’s decision may have been wrong) made an error of law in dealing with any of these issues, such an error would have been within its jurisdiction on a pre Anisminic approach to jurisdictional error.

Although the challenge to the Lands Tribunal’s decision is couched in terms of Wednesbury unreasonableness it is, in reality, no more than an attempt to re-argue the grounds that were placed before the Tribunal, and to persuade the Court that permission to appeal from the LVT’s decision should be granted. The Claimant’s Skeleton Argument concluded by contending that the Tribunal’s decision “ought to be quashed and leave to appeal now granted”. Parliament has decided that the Lands Tribunal, not this Court, shall determine whether or not the Claimant should be permitted to appeal from the LVT’s decision. Granting this claim for judicial review on the grounds set out above (para. 51) would subvert the statutory scheme and frustrate Parliament’s intention.

For the reasons set out above the approach set out in paragraphs 49 – 56 of Sivasubramaniam should be applied to this claim for Judicial Review. Since there are no exceptional circumstances the claim must be dismissed.