O Twelve Baytree Limited, R (On the Application Of) v The Rent Assessment Panel [2014] EWHC 1229 (Admin)

[2014] EWHC 1229 (Admin)

Case No CO/8282/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16/04/2014

Before

MR JUSTICE LEWIS

Between

THE QUEEN ON THE APPLICATION OF O TWELVE BAYTREE LIMITEDClaimant

THE RENT ASSESSMENT PANELDefendant

BECKETT HOUSE BRENTWOOD RTM COMPANY LIMITEDInterested Parties

ESTATES & MANAGEMENT LIMITEDInterested Party

Mr Daniel Dovar (instructed by Wallace LLP) for Claimant

for The Defendant and the Interested Parties did not attend and were not represented.

Hearing Hearing date: 1 ST April 2014

Judgment

INTRODUCTION

[1]This claim for judicial review concerns the withdrawal of an application made in connection with the acquisition of the right to manage a building containing self contained flats under the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”). The issue is whether the communication by the applicant of its intention to withdraw the application is sufficient to effect the withdrawal and to bring about the end of the proceedings or does the withdrawal take effect only when the tribunal consents to the withdrawal so that, until that point, the tribunal continues to have jurisdiction over the matter for the purposes of determining the substantive dispute or ordering costs?

THE FACTS

[2]The facts are not in dispute. The Claimant is the freehold owner of a block of flats at Beckett House, New Road, Brentwood, Essex (“the premises”).

[3]On 1 October 2012, the first Interested Party, Beckett House RTM Co. Ltd., (“the RTM”), served a claim notice seeking to acquire the right to manage the premises with effect from 11 February 2013. The Second Interested Party were the underlesses of the Claimant and played no part in the events in question or these proceedings.

[4]On 12 October 2012 the Claimant served a counter-notice under section 84(1) of the 2002 Act contending that the RTM did not have the right to manage the premises as the building was not a self-contained building nor a self-contained part of a building and, consequently, the provisions governing the acquisition of the right to manage did not arise.

[5]On 10 December 2012, the RTM applied to the leasehold valuation tribunal under section 84(3) of the 2002 Act for a determination that it was entitled to acquire the right to manage the premises.

[6]On 22 December 2010, the tribunal issued directions dealing with service of a statement of case and a reply and exchange of documents (all of those steps were to be completed on various dates before 2 February 2013). On 8 February 2013, the tribunal fixed a hearing for 4 April 2013.

[7]On 2 April 2013, the RTM wrote to the tribunal in the following terms:

“Further to recent correspondence in respect of this matter, we write to confirm that we have now received our client’s instructions to withdraw the Claim Notice, and therefore without causing any disrespect to the Tribunal that the hearing listed for 4 April is cancelled and our client’s application is withdrawn.”

[8]The tribunal treated that communication as a withdrawal of the application and a cancellation of the hearing and informed the Claimant accordingly. The Claimant wrote to the tribunal indicating that, in its view, the RTM could not unilaterally withdraw its application. One of the concerns was that the Claimant had incurred costs in preparation for the hearing and wished to ensure that the tribunal continued to have jurisdiction to deal with the application and make any consequential orders.

[9]On 4 April 2013, a case officer at the tribunal wrote as follows:

“RE: Commonhold & Leasehold Reform Act 2002 – Section 84(3) PREMISES: Becket House, New Road, Brentwood, Essex, CM14 4GA Thank you for your letter of the 4th April, the contents of which have been noted by the Tribunal chair. He is grateful to you for your analysis of the situation but unless you can point to some determinative authority for the view that a person who makes an application cannot withdraw it without the Tribunal’s permission, then it cannot go on to make other decisions when it is functus. The directions order invited any application for costs and your clients chose not to make one which means that there is no longer any issue to determine. There is nothing to dismiss.”

PREMISES: Becket House, New Road, Brentwood, Essex, CM14 4GA

[10]In other words, the tribunal was of the view that a notice of withdrawal by the applicant itself was sufficient to bring the proceedings to an end and it had no further jurisdiction or role in relation to the application. Further correspondence ensued. The tribunal maintained its understanding that the fact that the applicant had communicated its intention to withdraw the application meant that the application had been withdrawn and the tribunal’s jurisdiction was at an end.

[11]On 1st July 2013, the Claimant issued a claim for judicial review of the tribunal’s refusal to make a determination as to whether the RTM was entitled to exercise the right to manage the leasehold flats. The Claimant contended that the tribunal retained jurisdiction in the matter after the RTM had notified the tribunal of its intention to withdraw the application. It contended that it had the right to seek a determination on the substantive issue (that is, whether or not the premises were a self-contained building or part of a building) and also a right to recover costs under section 88(3) of the 2002 Act. Permission to apply for judicial review was granted by Kenneth Parker J. The Defendant is the leasehold valuation tribunal but, as is customarily the case, has not taken any part in these proceedings. The Interested Parties have not participated in the proceedings. Mr Dovar, who appeared for the Claimant, both put his own client’s submission in a clear, concise and helpful way and also, very properly, drew my attention to other relevant provisions and authorities that the court needed to consider.

THE LAW

[12]Part 2 of the 2002 Act reforms the law relating to certain blocks of flats. It gives the tenants of qualifying blocks of flats the right to establish a company, referred to in the 2002 Act as a right to manage company, with a view to it acquiring the right to manage the premises. The legislation is complex.

Scope and Purpose of the Right to Manage Provisions

[13]Section 71(1) of the 2002 Act provides that:

“(1) This Chapter makes provision for the acquisition and exercise of rights in relation to the management of premises to which this Chapter applies by a company which, in accordance with this Chapter, may acquire and exercise those rights (referred to in this Chapter as a RTM company).”

[14]Section 72(1) of the 2002 Act provides that:

“(1) This Chapter applies to premises if— (a) they consist of a self-contained building or part of a building, with or without appurtenant property, (b) they contain two or more flats held by qualifying tenants, and (c) the total number of flats held by such tenants is not less than two-thirds of the total number of flats contained in the premises.” (a) they consist of a self-contained building or part of a building, with or without appurtenant property, (c) the total number of flats held by such tenants is not less than two-thirds of the total number of flats contained in the premises.”

[15]There further provisions defining when a building or part of a building satisfies the requirements of that subsection. There are also provisions specifying what a right to manage company is and defining who are qualifying tenants.

Procedure for Acquiring the Right to Manage

[16]The process for acquiring the right to manage involves the following. First, notice of a claim to acquire such a right must be given in accordance with section 79 of the 2002 Act. That provides, so far as material, that:

“(1) A claim to acquire the right to manage any premises is made by giving notice of the claim (referred to in this Chapter as a “claim notice”); and in this Chapter the “relevant date”, in relation to any claim to acquire the right to manage, means the date on which notice of the claim is given.” ….. “(6) The claim notice must be given to each person who on the relevant date is— (a) landlord under a lease of the whole or any part of the premises, (b) party to such a lease otherwise than as landlord or tenant, or (c) a manager appointed under Part 2 of the Landlord and Tenant Act 1987 (c31) (referred to in this Part as “the 1987 Act”) to act in relation to the premises, or any premises containing or contained in the premises.” (c) a manager appointed under Part 2 of the Landlord and Tenant Act 1987 (c31) (referred to in this Part as “the 1987 Act”) to act in relation to the premises, or any premises containing or contained in the premises.”

[17]Section 84 of the 2002 Act deals with the response of persons served with a claim notice. The section provides as follows:

“(1) A person who is given a claim notice by a RTM company under section 70(6) may give a notice (referred to in this Chapter as a “counter-notice”) to the company no later than the date specified in the claim notice under section 80(6).” “(2) A counter-notice is a notice containing a statement either— (a) admitting that the RTM company was on the relevant date entitled to acquire the right to manage the premises specified in the claim notice, or (b) alleging that, by reason of a specified provision of this Chapter, the RTM company was on that date not so entitled, and containing such other particulars (if any) as may be required to be contained in counter-notices, and complying with such requirements (if any) about the form of counter-notices, as may be prescribed by regulations made by the appropriate national authority.” “(3) Where the RTM company has been given one or more counter-notices containing a statement such as is mentioned in subsection (2)(b), the company may apply to the appropriate tribunal for a determination that it was on the relevant date entitled to acquire the right to manage the premises.” “(4) An application under subsection (3) must be made not later than the end of the period of two months beginning with the day on which the counter-notice (or, where more than one, the last of the counter-notices) was given.” “(5) Where the RTM company has been given one or more counter-notices containing a statement such as is mentioned in subsection (2)(b), the RTM company does not acquire the right to manage the premises unless— (a) on an application under subsection (3) it is finally determined that the company was on the relevant date entitled to acquire the right to manage the premises, or (b) the person by whom the counter-notice was given agrees, or the persons by whom the counter-notices were given agree, in writing that the company was so entitled.” “(6) If on an application under subsection (3) it is finally determined that the company was not on the relevant date entitled to acquire the right to manage the premises, the claim notice ceases to have effect.” “(7) A determination on an application under subsection (3) becomes final— (a) if not appealed against, at the end of the period for bringing an appeal, or (b) if appealed against, at the time when the appeal (or any further appeal) is disposed of.” “(8) An appeal is disposed of— (a) if it is determined and the period for bringing any further appeal has ended, or (b) if it is abandoned or otherwise ceases to have effect.” (a) admitting that the RTM company was on the relevant date entitled to acquire the right to manage the premises specified in the claim notice, or (b) alleging that, by reason of a specified provision of this Chapter, the RTM company was on that date not so entitled, and containing such other particulars (if any) as may be required to be contained in counter-notices, and complying with such requirements (if any) about the form of counter-notices, as may be prescribed by regulations made by the appropriate national authority.” “(3) Where the RTM company has been given one or more counter-notices containing a statement such as is mentioned in subsection (2)(b), the company may apply to the appropriate tribunal for a determination that it was on the relevant date entitled to acquire the right to manage the premises.” “(4) An application under subsection (3) must be made not later than the end of the period of two months beginning with the day on which the counter-notice (or, where more than one, the last of the counter-notices) was given.” “(5) Where the RTM company has been given one or more counter-notices containing a statement such as is mentioned in subsection (2)(b), the RTM company does not acquire the right to manage the premises unless— (a) on an application under subsection (3) it is finally determined that the company was on the relevant date entitled to acquire the right to manage the premises, or (b) the person by whom the counter-notice was given agrees, or the persons by whom the counter-notices were given agree, in writing that the company was so entitled.” “(6) If on an application under subsection (3) it is finally determined that the company was not on the relevant date entitled to acquire the right to manage the premises, the claim notice ceases to have effect.” “(7) A determination on an application under subsection (3) becomes final— (a) if not appealed against, at the end of the period for bringing an appeal, or (b) if appealed against, at the time when the appeal (or any further appeal) is disposed of.” (a) if it is determined and the period for bringing any further appeal has ended, or (b) if it is abandoned or otherwise ceases to have effect.”

[18]This section contemplates, therefore, that there may be agreement on the acquisition of the right to manage the premises with effect from the date specified in the claim notice (or, if agreement is only reached in the process referred to in section 84(5) of the 2002 Act, with effect from three months from the date of agreement): see section 90 of the 2002 Act set out below. If the counter-notice alleges that the RTM company is not entitled by reason of one of the provisions of 2002 Act to acquire the right, then the RTM company may make an application to the tribunal for a determination that it was entitled to acquire the right to manage on the relevant date, that is the date on which the claim notice was given. The RTM company does not acquire the right to manage the premises until the application is finally determined.

[19]This was the procedure utilised in the present case. On 1 October 2012, the RTM served a claim notice under section 79(1) of the 2002 Act. The Claimant served a counter-notice under section 84(2)(b) of the 2002 Act stating that the RTM was not entitled to acquire the right to manage the premises by reason of section 72 of the 2002 Act as the premises were not a self-contained building or part of a building. On 10 December 2012, the RTM made an application to the tribunal under section 84(3) of the 2002 Act for a determination that it was, on 1 October 2012, entitled to acquire the right to manage the premises. The RTM would not acquire the right to manage the premises until its application was determined.

Withdrawal

[20]There are specific provisions dealing with the withdrawal of the claim notice given under section 79 of the 2002 Act. Section 86 of the 2002 Act specifically recognises that an RTM may withdraw a claim notice and specifies to whom a notice of withdrawal of a claim notice must be given. That section provides as follows:

“86 Withdrawal of Claim notice “(1) A RTM company which has given a claim notice in relation to any premises may, at any time before it acquires the right to manage the premises, withdraw the claim notice by giving a notice to that effect (referred to in this Chapter as a “notice of withdrawal”).” “(2) A notice of withdrawal must be given to each person who is— (a) landlord under a lease of the whole or any part of the premises, (b) party to such a lease otherwise than as landlord or tenant, (c) a manager appointed under Part 2 of the 1987 Act to act in relation to the premises, or any premises containing or contained in the premises, or (d) the qualifying tenant of a flat contained in the premises.” (a) landlord under a lease of the whole or any part of the premises, (b) party to such a lease otherwise than as landlord or tenant, (c) a manager appointed under Part 2 of the 1987 Act to act in relation to the premises, or any premises containing or contained in the premises, or (d) the qualifying tenant of a flat contained in the premises.”

[21]The proper service of a notice of withdrawal of a claim form will dispose of matters if that notice is given before any counter-notice is served. The service of the notice of withdrawal will bring matters to an end. The RTM will no longer be seeking to acquire the right to manage the premises.

[22]The 2002 Act also deals with the situation where a claim notice has been served and then a counter-notice is served. Section 87 of the 2002 Act provides for the claim notice to be deemed to be withdrawn in two situations, namely where no application is made for a determination under section 84(3) of the 2002 Act or an application is made but withdrawn. Section 87 of the 2002 Act provides so far as material that:

“87 Deemed withdrawal “(1) If a RTM company has been given one or more counter-notices containing a statement such as is mentioned in subsection (2)(b) of section 84 but either— (a) no application for a determination under subsection (3) of that section is made within the period specified in subsection (4) of that section, or (b) such an application is so made but is subsequently withdrawn, the claim notice is deemed to be withdrawn.” “(2) The withdrawal shall be taken to occur— (a) if paragraph (a) of subsection (1) applies, at the end of the period specified in that paragraph, and (b) if paragraph (b) of that subsection applies, on the date of the withdrawal of the application.” “(3) Subsection (1) does not apply if the person by whom the counter-notice was given has, or the persons by whom the counter-notices were given have, (before the time when the withdrawal would be taken to occur) agreed in writing that the RTM company was on the relevant date entitled to acquire the right to manage the premises.” (a) no application for a determination under subsection (3) of that section is made within the period specified in subsection (4) of that section, or the claim notice is deemed to be withdrawn.” (a) if paragraph (a) of subsection (1) applies, at the end of the period specified in that paragraph, and (b) if paragraph (b) of that subsection applies, on the date of the withdrawal of the application.” “(3) Subsection (1) does not apply if the person by whom the counter-notice was given has, or the persons by whom the counter-notices were given have, (before the time when the withdrawal would be taken to occur) agreed in writing that the RTM company was on the relevant date entitled to acquire the right to manage the premises.”

[23]Section 87(4) of the 2002 Act deals with other situations in which a claim notice is deemed to be withdrawn, none of which are relevant for present purposes.

[24]There are also provisions governing costs in section 88 and 90 of the 2002 Act. These provide, so far as material, that:

“88 Costs: general “(1) A RTM company is liable for reasonable costs incurred by a person who is— (a) landlord under a lease of the whole or any part of any premises, (b) party to such a lease otherwise than as landlord or tenant, or (c) a manager appointed under Part 2 of the 1987 Act to act in relation to the premises, or any premises containing or contained in the premises, in consequence of a claim notice given by the company in relation to the premises.” “(2) Any costs incurred by such a person in respect of professional services rendered to him by another are to be regarded as reasonable only if and to the extent that costs in respect of such services might reasonably be expected to have been incurred by him if the circumstances had been such that he was personally liable for all such costs.” “(3) A RTM company is liable for any costs which such a person incurs as party to any proceedings under this Chapter before the appropriate tribunal only if the tribunal dismisses an application by the company for a determination that it is entitled to acquire the right to manage the premises.” “(4) Any question arising in relation to the amount of any costs payable by a RTM company shall, in default of agreement, be determined by the appropriate tribunal.” “89 Costs where claim ceases “(1) This section applies where a claim notice given by a RTM company— (a) is at any time withdrawn or deemed to be withdrawn by virtue of any provision of this Chapter, or (b) at any time ceases to have effect by reason of any other provision of this Chapter.” “(2) The liability of the RTM company under section 88 for costs incurred by any person is a liability for costs incurred by him down to that time.” “(3) Each person who is or has been a member of the RTM company is also liable for those costs (jointly and severally with the RTM company and each other person who is so liable).” …..” (c) a manager appointed under Part 2 of the 1987 Act to act in relation to the premises, or any premises containing or contained in the premises, (a) is at any time withdrawn or deemed to be withdrawn by virtue of any provision of this Chapter, or (b) at any time ceases to have effect by reason of any other provision of this Chapter.” “(2) The liability of the RTM company under section 88 for costs incurred by any person is a liability for costs incurred by him down to that time.” “(3) Each person who is or has been a member of the RTM company is also liable for those costs (jointly and severally with the RTM company and each other person who is so liable).” …..”

[25]Finally, there are provisions governing the date upon which the RTM acquires the right to manage. Section 90 of the 2002 Act provides that: “90 The acquisition date “(1) This section makes provision about the date which is the acquisition date where a RTM company acquires the right to manage any premises.” “(2) Where there is no dispute about entitlement, the acquisition date is the date specified in the claim notice under section 80(7). “(3) For the purposes of this Chapter there is no dispute about entitlement if—(a) no counter-notice is given under section 84, or

(b) the counter-notice given under that section, or (where more than one is so given) each of them, contains a statement such as is mentioned in subsection (2)(a) of that section. “(4) Where the right to manage the premises is acquired by the company by virtue of a determination under section 84(5)(a), the acquisition date is the date three months after the determination becomes final. “(5) Where the right to manage the premises is acquired by the company by virtue of subsection 5(b) of section 84, the acquisition date is the date three months after the day on which the person (or the last person) by whom a counter-notice containing a statement such as is mentioned in subsection (2)(b) of that section was given agrees in writing that the company was on the relevant date entitled to acquire the right to manage the premises. “(6) Where an order is made under section 85, the acquisition date is (subject to any appeal) the date specified in the order.” (b) the counter-notice given under that section, or (where more than one is so given) each of them, contains a statement such as is mentioned in subsection (2)(a) of that section.

THE ISSUES

[26]Against that background, the Claimant contends that:(1) the giving of notice of withdrawal of an application made under section 84(3) of the 2002 Act does not automatically bring about the end of the proceedings and does not render the tribunal functus but, rather, the tribunal retains jurisdiction over the application unless it consents to the withdrawal;

(2) the tribunal remains under a duty to determine the application; or alternatively,

(3) the tribunal retains jurisdiction to determine whether or not to determine the application or to dismiss it and award costs.

ANALYSIS

[27]The provisions of the 2002 Act are intended to create a mechanism by which the tenants of a block of flats can seek to acquire the right to manage the premises through the vehicle of a company, referred to in the 2002 Act as an RTM. Once the RTM is established, a claim notice claiming the right to manage the premise from a date specified in the notice may be given.

[28]The provisions are relatively clear where there is no dispute between the company seeking to acquire the right to manage and the other parties. If there is no objection, the RTM company will acquire the right to manage on the date given in the claim notice: see 90(2) of the 2002 Act.

[29]Similarly, the provisions are relatively clear where the RTM determines that it will not continue with its claim to acquire the right to manage prior to proceedings beginning in the leasehold valuation tribunal. This may occur in one of two situations. Either the RTM may decide that it no longer wishes to acquire the right to manage. Or another person may serve a counter-notice contending that the RTM is not entitled to acquire the right to manage and the RTM may decide not to make an application to the tribunal for it to determine that issue. In either case, the RTM may give a notice of withdrawal under section 86 of the 2002 Act and that will be sufficient to bring the claim to an end. The RTM will remain liable for the reasonable costs incurred by the landlord or others as a consequence of the giving of a claim notice: see section 88(1) of the 2002 Act.

[30]The difficulties arise when the RTM gives a claim notice, another person serves a counter-notice and then the RTM applies to the tribunal under section 84(3) of the 2002 Act for the tribunal to determine whether or not the RTM had the right to manage the premises on the relevant date, that is the date when the claim notice was given. If the proceedings end with a determination by the tribunal that the RTM is entitled to acquire the right to manage the premises, then (subject to any appeal) the RTM will acquire the right to manage three months after the determination becomes final: see section 90(4) of the 2002 Act. The RTM will be liable for the costs incurred by the landlord in consequence of the giving of the claim notice but it will not be liable for the costs of the proceedings before the tribunal. By virtue of section 88(3) of the 2002 Act, an RTM is only liable for those costs if the tribunal dismisses the application. If, therefore, the tribunal finds in favour of the RTM, it will not be liable for the costs of the proceedings in the tribunal. This reflects the fact that those costs have been incurred as the result of a counter-notice being served contesting the RTM’s entitlement to acquire the right to manage and the RTM having to go to the tribunal in order to obtain a determination that it was entitled to acquire the right to manage the premises. In those circumstances, it is understandable that Parliament did not consider that the RTM should bear those costs. If, conversely, the tribunal determines that the RTM does not have the right to manage and dismisses the application, then its claim notice ceases to have effect (section 84(6) of the 2002 Act) and the RTM will be liable for the costs incurred as a result of the giving of the notice and the proceedings in the tribunal by virtue of section 88(1) and (3) of the 2002 Act.

[31]The difficult situation is the one that arises in the present case. The RTM gives a claim notice. There is then a counter-notice contesting the entitlement of the RTM to acquire the right to manage. The RTM makes an application under section 84(3) of the 2002 Act for the tribunal to determine that issue. A hearing is fixed; costs are incurred in preparation. Then, before the tribunal hearing, the RTM indicates that it no longer seeks to purse the claim and wishes to withdraw the application.

[32]The legislation contemplates that an application may be withdrawn. That is implicit in section 87(1) of the 2002 Act which recognises that if an application is withdrawn, the claim notice is also deemed to be withdrawn. Section 87(2) of the 2002 Act also provides for the date upon which the claim notice is deemed to be withdrawn: that is “the date of the withdrawal of the application” (section 87(2)(b) of the 2002 Act). The provisions of the 2002 Act are, however, silent on the question of what steps or procedures must be followed in order to bring about a withdrawal of the application. The 2002 Act is also silent on the question of whether a withdrawal is effected solely by the RTM giving notice to the tribunal (or the other parties) of its wish to withdraw the application or whether the tribunal must agree to the withdrawal.

[33]There are indications in the 2002 Act that Parliament would not have intended the RTM to be able to bring about the end of the proceedings simply on giving notice of withdrawal. The clearest indications come in the provisions relating to costs. The provisions envisage that the RTM will be liable for the reasonable costs incurred by the giving of the claim notice. In addition, section 88(3) of 2002 Act provides that the RTM will be liable for the costs incurred in proceedings before a tribunal but only where the tribunal dismisses an application by the RTM for a determination that it is entitled to acquire the right manage the premises as at the date of the giving of the claim notice. Section 89 of the 2002 Act deals with the costs of a claim where a claim notice is withdrawn or deemed to be withdrawn by reason of any provision of chapter 1 of Part 2 to the 2002 Act. Those provisions include section 87 of the 2002 Act whereby a claim notice is deemed to have been withdrawn where an application under section 84(3) of the Act is withdrawn. Section 89(2) of the 2002 Act continues the liability of the RTM for costs incurred “down to that time”, i.e. down to the date of the withdrawal of the application.

[34]The liability of the RTM to costs, including costs connected with tribunal proceedings, is derived from section 88 of the 2002 Act. It is the liability to costs under section 88 of the 2002 Act which is continued under section 89 down to the time of the deemed withdrawal of the claim notice. The liability for costs incurred as a party to proceedings before the tribunal only arises, however, if the tribunal dismisses the application. Given that section 89(2) of the 2002 Act contemplates the liability for costs continuing down to the date of withdrawal of the application (which will, or is likely to, include some costs incurred in respect of the proceedings), and given that such liability will only arise if the tribunal dismisses the application, those provisions indicate that the tribunal retains jurisdiction over an application even where the RTM has given notice that it intends to withdraw. As section 89 of the 2002 Act contemplates that the RTM is liable for costs incurred as a party to proceedings before the tribunal, and as such costs can only be recovered if the tribunal dismisses the application, that indicates that a notice of withdrawal does not automatically bring about the end of the proceedings but some action on the part of the tribunal is required to bring the proceedings to an end. The provisions indicate that the withdrawal will only be effective when accepted by the tribunal and when the tribunal dismisses the application, for example, by dismissing the application on withdrawal. Conversely, if a withdrawal was effective simply on the giving of notice by the RTM, so that the proceedings were automatically at an end, that would prevent the recovery of costs (as there would be no dismissal of the application) in circumstances where Parliament contemplated that the RTM would be liable for costs. That factor, indicates, in my judgment, that the statute does contemplate that the tribunal retains jurisdiction over the application when the RTM gives notice that it wishes to discontinue its claim and withdraw the application.

[35]That conclusion is reinforced by a consideration of the case law governing the approach to the right of a party to withdraw proceedings. The question of a party’s right to withdraw proceeding before a tribunal was considered in Hanson v Church Commissioners for England [1978] 1 Q.B. 823. That case concerned the fixing of rents for properties. A landlord could apply to a rent officer for the fixing of a fair rent. A tenant could object to the rent fixed and the matter was then referred to a rent assessment panel. The panel would then determine the fair rent for the property and that was then registered and became the fair rent for the property for the next three years (irrespective of changes of landlord or tenant). There was no statutory provision expressly entitling a party who made an objection to withdraw an objection before the rent assessment panel reached its decision. In this case, the landlord asked the rent officer to fix a fair rent and it contended that the fair rent was £900 per annum. The tenant contended it was £600. The rent officer fixed a rent of £800 per annum. The tenant objected and the matter was referred to the rent assessment panel. The tenant’s agent subsequently wrote indicating, in effect, that the tenant did not wish the panel to consider his objection. The panel took the view that once an objection had been made it had to determine it and proceeded to do so in the absence of the tenant. The panel were not told that the objection had been withdrawn and, in the absence of the tenant, increased the rent to £900 per annum. The first issue in that case was whether the panel was obliged to consider the objection or whether they had jurisdiction to accept the withdrawal of the objection.

[36]Lord Denning M.R. took the view that in the ordinary way either party has a right to withdraw a dispute in a civil matter. Where, however, there was a public interest in the dispute, he considered that it may not be permissible for one of the parties to withdraw without the assent of the other and even then, without the consent of the tribunal. He considered that the matter depended upon the construction of the particular statute. In the present case, the fixing of a fair rent did involve a matter of public interest as it would be registered for three years and would affect that house and, potentially, others as it would act as a brake on excessive rents. In those circumstances, the Master of the Rolls considered that “the public interest is so much involved that no one party has a right to withdraw an objection and stop the proceedings”. He considered that if one party wished to withdraw an objection and the other did not object, the tribunal may allow the case to be withdrawn. If the other party objected, the hearing had to continue.

[37]Roskill and Lawton L.JJ. took a broader view of the circumstances in which withdrawal of proceedings could be effected by one of the parties and one which took account of the private interests of the other party, not simply the wider public interest.

[38]Roskill L.J. considered that the principal question on the appeal was whether the original objector had no right to withdraw his objection once the matter had been referred to the rent assessment committee. In considering that issue, Roskill L.J. considered that there was a right to withdraw but the right was not unqualified and required the sanction of the rent assessment panel. First, he considered that the correct approach was that, in the absence of any statutory bar upon the right of withdrawal, a court should assume the existence of a right to withdraw if (citing a dictum of Lord Widgery C.J. in the Divisional Court in this case at [1976] Q.B. 394 at 400); "... the existence of a right of withdrawal can march in double harness with the protection of other parties concerned, then the right of withdrawal ought to be there."

[39]Secondly, Roskill L.J. considered that the right on the part of the tenant to withdraw an objection was not unqualified. Equally, Roskill L.J. did not consider that the tribunal was obliged, in every case, to proceed to determine each application before it and observed that:

“I have already said that I agree that there can be no unilateral withdrawal whereby one party can prejudice the other. That seems clear enough, but I can find nothing in the statute which prevents both parties agreeing to withdraw provided that that withdrawal is sanctioned by the committee. I think one must add the qualification that the committee must sanction the withdrawal because otherwise there is no safeguard of what I have described as the public interest.”

[40]Lawton L.J. adopted a similar approach to that taken by Roskill L.J. He recognised that the fixing of rents was a matter of public concern and did not have the same legal quality as ordinary civil disputes. He recognised that the public interest may be in conflict with any right of a party to withdraw a claim and said this:

“What should happen when there is a conflict? In my judgment, in the absence of a specific statutory prohibition, if the proceedings can be brought to an end without prejudicing any interest whether private or public, then they can be. Any other approach would lead to a waste of a tribunal's time and to the waste of both public and private money.”

[41]A more recent authority dealing with similar issues is that of the Court of Appeal in Silkstone v Tatnall [2012] 1 W.L.R. 400. That concerned withdrawal of proceedings before the Chief Land Registrar under section 73(7) of the Land Registration Act 2002 (“the Act”). The Silkstones were the registered proprietors of a cottage, No. 2, Croft Cottages, Belchamp Walter, Sudbury in Suffolk. Mr Tatnall was the proprietor of the neighbouring cottage, No. 3. The Silkstones claimed to have acquired a right of way over the back garden of No. 3. They applied to register a notice of their right of way. The notice was registered. Mr Tatnall applied to have notice cancelled. The Silkstones objected. In accordance with the provisions of the Act, the matter was referred to an adjudicator for determination. The matter proceeded to a hearing with exchanges of pleadings and evidence. The hearing was listed for 2 and 3 June 2009. On 28 May 2009, the Silkstones sought permission from the adjudicator to withdraw their objection to the cancellation of the notice, leaving the way clear for them to take court proceedings at a later date if they chose to do so. The relevant procedural rules did not deal expressly with the right, if any, of a party to withdraw or discontinue his case or how the adjudicator ought to deal with such a request. Rimer L.J., with whom the remainder of the Court agreed, set out the position as follows. First, a party must be entitled to withdraw his case and cannot be compelled to continue to advance a case if he does not wish too. Secondly, however, the tribunal or adjudicator must then determine what to do in the light of the wish by one party to withdraw. The adjudicator will need to reach a decision or determination, either on the substantive merits of the case or, alternatively, by deciding to terminate proceedings without ruling on the underlying merits of the case. As Rimer L.J. put it in his conclusions: “48 I would summarise the position in my own words as follows. A reference to an adjudicator of a “matter” under section 73(7) confers jurisdiction upon the adjudicator to decide whether or not the application should succeed, a jurisdiction that includes the determination of the underlying merits of the claim that have provoked the making of the application. If the adjudicator does not choose to require the issue to be referred to the court for decision, he must determine it himself. In the case of an application under section 36 to which an objection has been raised, the relevant issue will be the underlying merits of the claim to register the unilateral notice. Neither party can by his unilateral act (including by his expressed withdrawal of his application, objection or case) bring the reference to an end. Equally, neither party can be compelled to advance a case to the adjudicator that he no longer wishes to advance. A party who conveys such a wish to the adjudicator can be regarded as conveying his wish to “withdraw” his application, objection or case but it is then for the adjudicator to rule in his discretion as to how to deal with any such withdrawal. That will require a consideration of all the circumstances. “49 It may perhaps, particularly at the early stage of a reference, be regarded by the adjudicator as just simply to permit the withdrawal and to make an order terminating the reference, making any appropriate direction to the registrar and dealing with costs. If the order says no more, it would no doubt leave an objector free to revive the same claim. That may not necessarily be unjust. “50 In other cases, particularly when the reference is significantly advanced, to deal with a withdrawal on terms like that may be unjust. It may still be appropriate in such cases for the adjudicator to terminate the reference but he may consider it just to do so not only on terms as to costs, but also on the basis of a direction to the registrar requiring him to reject any future applications of a specified kind from the withdrawing party: see rule 41(2) of the AR. The imposition of such a direction is not a matter that requires the consent of the withdrawing party. It may in other cases, particularly those in which the reference is far advanced, such as was the position in the present case, be appropriate for the adjudicator to proceed to the substantive hearing, rule upon the merits of the issue and then make such order as is appropriate. “

[42]In my judgment, a similar approach ought to be taken to the interpretation of the relevant provisions of the 2002 Act. First, the statute expressly contemplates that an application made under section 84(3) of the 2002 Act may be withdrawn. There is no statutory prohibition or bar on such a withdrawal. Secondly, however, the relevant provisions do not specify how such a withdrawal is to be effected. In my judgment, the intention is that such a withdrawal will only be effective to terminate proceedings where the tribunal consent to the withdrawal. The tribunal will be required to reach a decision. It may, and usually will, be satisfied that the application should be dismissed by reason of the withdrawal. That will be sufficient to ensure that the liability of the RTM to pay the costs incurred by the proceedings is preserved as a dismissal upon withdrawal will satisfy the requirement of section 88(3) of the 2002 Act that the costs incurred in proceedings on an application can be recovered only if the application is dismissed.

[43]There will, usually, be little purpose in continuing to a hearing if the RTM no longer wishes to acquire the right to manage the premises and, usually, good reasons to avoid incurring further costs. There may be rare occasions when a tribunal will consider it appropriate to hear and determine the underlying issue, namely whether the RTM had acquired the right to manage the premises on the date when the claim notice was given or whether it was not so entitled because, for example, the premises were not premises to which the right to manage provisions apply. The circumstances when this course of action will be appropriate are likely to be rare. The landlord (or other appropriate person) will retain the right to manage and will be entitled to obtain its costs and so will not be prejudiced if the application is dismissed on withdrawal (and the claim notice deemed to be withdrawn) without ruling on the underlying issues. Furthermore, a ruling as between one RTM and a landlord as to whether the premises were, or were not, ones to which the relevant provisions of the 2002 Act applied would not, it seems, be binding on any future company set up by different grouping of tenants seeking to acquire the right to manage at some stage in the future. Whether or not it would be appropriate to continue to a hearing, however, will ultimately be a matter for the tribunal, having regard to all relevant circumstances which are likely to include the stage at which the proceedings have reached, the reasons for the wish to withdraw and any likely prejudice that would be caused by simply dismissing the application on withdrawal rather than dealing with the underlying merits.

[44]For completeness, I note that the First-tier Tribunal is now to exercise the jurisdiction of the leasehold valuation tribunal in these matters. The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (“the Rules”), now apply to provide for a notice of withdrawal to be given. Rule 22(3) of the Rules provides that the notice of withdrawal will not take effect unless the Tribunal consents to the withdrawal. A provision of later, subordinate legislation cannot assist in the interpretation of earlier primary legislation. But, as Mr Dovar submits, the Rules (as do other rules governing procedure in the Upper Tribunal and the First-tier Tribunal) do indicate that one should not automatically read a reference to withdrawal as meaning that notice given by one party is capable in itself of bringing about the termination of proceedings. Subject always to the proper construction of the particular statutory provisions in issue, a withdrawal may only be effective in the event that the tribunalconsents. In the present case, for the reasons given, notice of withdrawal of an application under section 84(3) of the 2002 Act would not, of itself, bring the proceedings to an end but would need the consent of the tribunal. The Rules, therefore, reflect the proper construction of the 2002 Act.

CONCLUSION

[45]In the circumstances of this case, therefore, the tribunal erred in concluding that it no longer had jurisdiction in relation to the application simply because the RTM had notified the tribunal of its wish to withdraw the application. Equally, the tribunal was not under a duty to hear and determine the underlying merits of the case. When the RTM gave notice of its intention to withdraw its application, the tribunal retained jurisdiction and could either decide to dismiss the application, on the basis that application was withdrawn, or, if it thought it appropriate to do so, could proceed to determine the application.