Michah Lucian Alexander Benka & Anor v Louise Keith [2025] EWHC 1905 (Ch)

[2025] EWHC 1905 (Ch)Case No CH-2025-000008
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS (ChD)
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 25/07/2025
Before
MR JUSTICE ADAM JOHNSON
Between
(1) MICHAH LUCIAN ALEXANDER BENKAAppellants(2) FAIRWARP MANAGEMENT LIMITEDAppellantMS LOUISE KEITHRespondent
Daniel Gatty (instructed by Gardner Leader LLP) for AppellantsNicholas Grundy KC for RespondentHearing Hearing date: 18 June 2025
Approved JudgmentThis judgment was handed down at 9.30am on Friday 25 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction & Background

[1]The issue arising on this appeal is whether, for the reasons given in his Judgment of 2 September 2024, HHJ Simpkiss (where relevant, “the Judge”) was correct to dismiss the Claimants’ claims in these proceedings.[2]Those claims were essentially for: i. forfeiture of a long lease of a flat known as Flat 6, Fairwarp, Forest Drive, Kingswood (“the Flat”), in light of alleged breaches of the Flat lease (“the Flat Lease”) by the leaseholder, including a failure to pay ground rent and service charges; ii. a money judgment in respect of ground rent and service charge arrears, both in respect of the Flat and an associated garage (“the Garage”) held by the same leaseholder under a separate lease; iii. damages from the leaseholder arising from alleged breaches of the Flat Lease; iv. interest and costs.

Some relevant background

[3]Although the claims described above appear straightforward enough, a number of difficulties and complications arise from the fact that this case has a long and troubled history, which in fact stretches back over 12 years, to April 2013.[4]At that stage, the freeholder of the Flat and the Garage was the First Claimant, Mr Benka. Much later on, in late 2019, his interests was transferred to Fairwarp Management Limited, which is now the Second Claimant. At any rate, on 22 April 2013, Mr Benka served on the Defendant leaseholder, Ms Keith, a notice of breaches of covenant contained in the Flat Lease. The notice was served under s. 146 of the Law of Property Act 1925 (“the s. 146 Notice”), as the first step in a potential claim for forfeiture. The alleged breaches of covenant included unlawful sub-letting of the Flat and nuisance caused by the occupants, as well as non-payment of service charges.[5]The s.146 Notice was followed by a Claim Form issued in the County Court at Guildford. This sought forfeiture of the Flat Lease, together with other relief, including payment of service charge and rent arrears (both in connection with the Flat and the Garage), and damages. The service charge liabilities were quantified at £23,662.80, and the rent arrears at £660, made up of £600 in respect of the Flat, and £60 in respect of the Garage. As to the damages claims, so far as relevant these were set out at paras 19(i) and 19(ii) of the Particulars of Claim, and were said to arise (1) from Mr Benka having been forced to reduce the rent payable by another tenant of his in the same building (Mr Benka put this aspect of his claim at £800); and (2), from other tenants having given notice to leave early, giving rise to a loss of income and increased letting fees (Mr Benka put this aspect of his claim at £7,535).[6]After the Claim Form was issued, however, Ms Keith applied to strike out the proceedings.[7]One of her main points was that the s.146 Notice relied on by Mr Benka was defective because at the time it was served, none of the preconditions for service of a valid notice, set out in s. 168 of the Commonhold and Leasehold Reform Act 2002 (“CLRA 2002”), had been fulfilled. That provision requires that before service of such a notice in respect of a long lease of a dwelling, there should either have been a final determination of breach of any relevant covenant by a Court or Tribunal, or an admission of breach by the tenant. Ms Keith said there had been neither as regards any of the alleged breaches set out in Mr Benka’s s.146 Notice. Further, as to the claims for rent arrears, Ms Keith said that she had in fact tendered payment of the ground rent for both the Flat and the Garage, but Mr Benka had refused to accept it, because he was fearful that doing so might prejudice his right to forfeit the Flat Lease, if he had one. Ms Keith also said that Mr Benka had never served any proper demand for rent, as required under s. 166 of the CLRA 2002. Consequently none was due anyway, and so neither could that be used as a basis for seeking forfeiture.[8]There was a hearing before DJ Bell in February 2015. A number of things happened. One was that after some discussion, Mr Benka accepted payment of the rent arrears of £660, but on terms which made it clear this was without prejudice to his allegations of breach of the Flat Lease. As to the remainder of Ms Keith’s challenge, DJ Bell declined to strike out the proceedings, and instead referred to the First Tier Tribunal Property Chamber (Residential Property) (“the FTT”) the issue of compliance with s. 168 CLRA 2002. There is a question on this appeal about precisely what was referred to the FTT under DJ Bell’s Order, which I will have to come back to. In any event, the County Court proceedings were stayed pending the expected hearing before the FTT.[9]There was then a very long delay between February 2015 and October 2023, when the FTT finally made an Order dealing with the matters before it. That delay seems to have arisen at least in part because of confusion as to who was responsible for initiating the process before the FTT. The resultant delays gave rise to a further strike out application by Ms Keith. Although the application was initially granted by DDJ Anstiss, that decision was later overturned on appeal both by HHJ George in January 2023 and later by the Court of Appeal in July 2023 ([2023] EWCA Civ. 821).[10]The Order of the FTT, when it finally came in October 2023, in fact recorded the terms of a compromise position reached by agreement between the parties. I will say more about the detail of this below. For now it is enough to say that the Order recorded certain admissions as to breaches of the Flat Lease, and recorded also, although expressly without any admission of liability, a payment of £8,000 in settlement of all outstanding service charge liabilities.

The Decision under Appeal

[11]Following the FTT’s Order, the question then was: what remained of the County Court proceedings, which had been stayed by DJ Bell about 8 ½ years before? The Defendant, Ms Keith, thought that nothing of substance remained, and so she issued two applications in the County Court to dispose of them:(i) an application dated 26 January 2024 to strike out the claims in their entirety, and(ii) a later application dated 2 April 2024, for reverse summary judgment in respect of “those parts of the Claimants (sic.) claim for forfeiture that are not struck out”.[12]It is these applications, heard by HHJ Simpkiss on 10 June 2024, which resulted in his decision to dismiss all remaining claims and thus the proceedings. This outcome is recorded in the Judge’s Order of 11 October 2024, in which he also awarded Ms Keith the whole of her costs of her 2 successful applications and 50% of the balance of her costs in the case overall, to be assessed if not agreed.[13]The Judge’s reasoning, in summary, was as follows: i. As regards the forfeiture claim, HHJ Simpkiss considered that the FTT’s Order of October 2023 effectively precluded the Claimants from arguing that the requirements of s.168 CLRA 2002 had been fulfilled in connection with the s. 146 Notice of April 2013. Even if wrong on that primary point, so that technically it remained open to the Claimants at least to argue they had served a valid notice, HHJ Simpkiss considered there was no real prospect of any such argument succeeding at trial, and so concluded that Ms Keith was entitled to reverse summary judgment against the Claimants anyway. Insofar as forfeiture was said to be justified by the failure to pay ground rent for the Flat, the Judge concluded that the Claimants had made no effort to show compliance with s. 166 CLRA 2002, so technically they had not shown a liability to pay rent, and so Ms Keith was entitled to succeed on that issue as well. ii. As to the money claims for payment of arrears of rent and service charges, the Judge in effect held there was nothing left of such claims to proceed to a trial and that they should be struck out. At [72] of his Judgment he said, “The rent has been paid and the service charges issue has been compromised.” The reference to the rent having been paid was a reference to the payment accepted without prejudice by Mr Benka in February 2015 as recorded in DJ Bell’s Order; and the reference to compromise of the service charges issue was a reference to the £8,000 payment, made without admission of liability, recorded in the FTT’s October 2023 Order. iii. Finally, as to the damages claim, HHJ Simpkiss said at [70] of his Judgment, “There is no damages claim”. He resolved the issue on that basis.

The Grounds of Appeal

[14]The Claimants, Mr Benka and Fairwarp Management, now appeal the Judge’s decision. There are 12 detailed Grounds of Appeal, which are set out in the Appendix to this Judgment. I can summarise them as follows: i. Grounds 1 and 2: argue that the Judge was wrong to regard the FTT’s Order of October 2023 as precluding any further argument about forfeiture in the County Court, because the original Order of DJ Bell in February 2015 did not refer all issues of compliance with s. 168 CLRA to the FTT, only some of them; and the Claimants say there are other issues which have not been dealt by the FTT on any view, and thus are still live, and are for the County Court to deal with. ii. Grounds 3, 4 and 5: argue that in any event, when properly understood, the outcome recorded in the FTT’s Order supports the view that the requirements of s. 168 CLRA were complied with as regards the s. 146 Notice; and so rather than precluding further argument on that point, the FTT’s Order in fact supports the Claimants’ case that the s.146 Notice was valid. Further, the underlying logic of this point is said already to have been determined both by HHJ George, and by the Court of Appeal, in the decisions referred to at [9] above. iii. Ground 6: is a stand-alone point about the claim for forfeiture based on the alleged failure to pay service charges. The point made is that there was in fact evidence before the Judge of Ms Keith admitting such failure well before April 2013, which the Judge wrongly dismissed. iv. Grounds 7 and 8: concern the claim for forfeiture based on failure to pay ground rent for the Flat – the argument is that it was illogical for the Judge to dismiss this claim on the basis that technically there no liability to pay the rent having regard to s.166 CLRA 2002, when Ms Keith had admitted liability by paying it, as recorded in DJ Bell’s Order of February 2015. v. Grounds 9 and 10: raise a discrete argument about alleged non-payment of ground rent under the Garage lease – namely that s.166 CLRA 2002 has no application to that lease because it applies only to leases of dwellings. The Judge was wrong to assume otherwise. vi. Ground 11: argues that the Judge was wrong to dismiss the money claims for payment of arrears of rent and service charges, when the Claimants had in fact made significant recoveries in respect of these items, having recovered the rent in full in February 2015 and a substantial proportion of the service charges by means of the £8,000 payment recorded in the FTT’s Order of October 2023. The Claimants say that the Judge’s decision simply to dismiss these aspects of the claim had the effect, wrongly and unfairly, of diluting the value of the recoveries made in costs terms. vii. Ground 12: argues that the Judge was wrong to dismiss the damages claim on the basis that no such claim was advanced, when in fact one was pleaded (see above at [5]).

Summary and Overall Conclusion

[15]My opinion is that the Judge was correct to dismiss all the Claimants’ claims, except the claim for damages. Consequently, I will dismiss the present Appeal on all Grounds, save for Ground 12.[16]I will develop my reasoning in more detail below.I will do so by reference to the following topic-headings:(1) the forfeiture claim;(2) the money claims for rent and service charge arrears; and(3) the damages claims. I will deal with the individual Grounds of Appeal as appropriate under each topic-heading.

The Forfeiture Claim

[17]The Claim for forfeiture of the Flat Lease is advanced on two bases: first, breaches of covenant in the Flat lease, as notified by means of the s.146 Notice, which include breach of the obligation to pay the service charge which in this case was not reserved as rent under the Flat lease; and second, the failure to pay ground rent. The question the Judge had to address was whether there was a properly viable claim for forfeiture on either basis, and he thought not. In order to succeed on this appeal, the Claimants must show he was wrong in coming to the conclusion he did. I do not consider that he was wrong.

Breaches of covenant: was there any final determination or prior admission of breach?

[18]The main point is the one about breaches of covenant in the Flat Lease.[19]The critical issue here is that even after many years of delay, the Claimants were not able to state any clear case that the conditions in s. 168 CLRA 2002 had been met at any point before the s. 146 Notice was served by Mr Benka in April 2013.[20]This timing point is critical. It follows from the statutory scheme.[21]Section 146 LPA 1925 imposes restrictions on the exercise of rights of re-entry or forfeiture by landlords, among which is a requirement to notify the tenant of the alleged breach relied on and to give the tenant the opportunity of remedying it. These basic protections however are enhanced where the lease is a long lease of a dwelling. In such cases, s. 168 CLRA 2002 imposes additional requirements, as follows (my emphasis added): “168 No forfeiture notice before determination of breach(1) A landlord under a long lease of a dwelling may not serve a notice under section 146(1) of the Law of Property Act 1925 (c. 20) (restriction on forfeiture) in respect of a breach by a tenant of a covenant or condition in the lease unless subsection (2) is satisfied.(2) This subsection is satisfied if- (a) it has been finally determined on an application under subsection (4) that the breach has occurred, (b) the tenant has admitted the breach, or (c) a court in any proceedings, or an arbitral tribunal in proceedings pursuant to a post-dispute arbitration agreement, has finally determined that the breach has occurred.(3) But a notice may not be served by virtue of subsection (2)(a) or (c) until after the end of the period of 14 days beginning with the day after that on which the final determination is made.(4) A landlord under a long lease of a dwelling may make an application to [the appropriate tribunal] for a determination that a breach of a covenant or condition in the lease has occurred.” (a) it has been finally determined on an application under subsection (4) that the breach has occurred, (c) a court in any proceedings, or an arbitral tribunal in proceedings pursuant to a post-dispute arbitration agreement, has finally determined that the breach has occurred.[22]The requirements set out in s. 168 are straightforward and clear. I have summarised them already above (see at [7]). The order of things obviously matters under this scheme. There must have been a final determination or an admission before the s.146 notice is served. If neither thing had happened, the landlord “may not serve a notice”, and so any notice the landlord has purportedly served is invalid.[23]If that is the correct way of looking at the statutory scheme, then the question as regards the forfeiture claim is whether there was any properly arguable case before the Judge that there had been either a final determination of breach of the Flat Lease, or an admission of breach, before April 2013.[24]The Judge thought not, in light of the outcome of the proceedings before the FTT, as recorded in the FTT’s Order. That outcome did not suggest that any of the preconditions to service of a valid notice had been fulfilled before April 2013. In fact, it established the opposite. As the Judge expressed it in his Judgment at [44]: “There is no reference in it to any findings of any admissions or determinations of these or any other breaches prior to the issue of the section 146 Notice”.[25]I agree with the Judge on this point. I need not set out the FTT’s Order in full, but certain obvious and I think uncontroversial comments can be made about it, which show that the Judge’s reasoning was entirely correct.[26]First, its primary purpose is to record, in a series of Recitals, certain terms agreed between the parties, “ ... in respect of all matters referred to the First Tier Tribunal ... pursuant to the order of District Judge Bell”. Insofar as there was any determination made by the FTT, this is recorded in two short paragraphs at the end of the Recitals, which reflect Orders transferring the matter back to the County Court for directions, the FTT being “satisfied that the above recital (sic.) disposes of all matters referred to it by the Order of District Bell”.[27]I think it clear from this that the FTT’s Order cannot be used to make good any submission that there was a final determination of breach of the Flat Lease before April 2013. There was no final determination of anything before then; and insofar as there was any determination at all by the FTT, it came long after, in October 2023.[28]The second point to make is again an obvious one, which is that although the FTT Order certainly records a number of admissions of breach by Ms Keith, again they too came far too late to salvage the s.146 Notice.[29]An example will illustrate the point. Paragraph 2 of the main Recital in the FTT Order records Ms Keith admitting a breach of the covenant in clause 2(O) of the Flat Lease, in respect of “Nuisances, disturbance and inconvenience caused during the period of sub-letting to Mr Tony Slayford between November 2012 and April 2014”. This is certainly an admission; but there is nothing to suggest it was made before April 2013, in a manner that would have breathed some life into the s.146 Notice. The position might have been different had the FTT made a determination that there had been breaches and that Ms Keith had admitted them before April 2013, but they did not do so. All the FTT Order does is to record new admissions of historic breaches, those admissions being made in October 2023, over 10 years after the s.146 Notice was delivered.[30]The position is not improved by considering the provision which deals with the agreement to pay £8,000 in respect of alleged service charge arrears The payment is recorded as being “in settlement of all outstanding service charge liabilities under the [Flat Lease] (inclusive of interest)”, but is expressly stated to be made “without any admission of breach of clauses 3(1) and 3(b) of the 1959 Lease and clause 3(viii) of the 1966 Lease” (my emphasis added). Consequently, as regards this aspect, there was no admission of breach at all, not even a recent one.[31]In light of this state of affairs, arrived at after many years of delay, it seems to me the Judge was entirely justified in concluding that the forfeiture claim based on breaches of covenant should be dismissed. No case was being advanced that even the basic elements of a successful claim – i.e., compliance with the requirements of s. 168 CLRA 2002 – had been complied with.[32]Grounds of Appeal 1-6 in different and creative ways all seek to navigate a way around this fundamental deficiency in the Claimants’ case, but in my opinion none of them provides an answer, because none of them helps address either(1) the basic problem that there now never can be a final determination of any relevant breach occurring prior to April 2013, or(2) the fact that after 12 years of litigation, neither has any clear evidence emerged of any admission of breach prior to April 2013.[33]Let me take Grounds 1-6 in turn.

Grounds 1 and 2

[34]As already noted, the argument here is that the Order of DJ Bell was limited in terms of the matters referred to the FTT. More specifically, what is said is that that Order did not refer to the FTT the question whether there had been any prior determinations or admissions of breach by Ms Keith. All it did was refer for determination whether there had been any breaches of the Flat Lease.[35]There is no suggestion that there had been any prior determinations of breach by anyone before service of the s.146 Notice, so as I understood it the real thrust of the point was about prior admissions. Mr Gatty’s argument was that, the matter of prior admissions not having been referred to the FTT, that issue must have been stayed, and so remains for the County Court to resolve.[36]The submission is bolstered both by reference to the language of DJ Bell’s Order, and by the language of s. 168 CLRA 2002 itself, which it is said confers limited jurisdiction on the FTT. The argument is that the jurisdiction extends only to making determinations of breach, and not to making determinations as to whether breaches have been admitted: see s. 168(4) above, which provides that a landlord “ ... may make an application to [the appropriate tribunal] for a determination that a breach of a covenant or condition in the lease has occurred”, but says nothing about admissions. In developing this argument, Mr Gatty relied on Bedford v. Paragon Asra Housing Ltd UKUT 266 (LC), [2022] L&TR 7, in which it was held that because the FTT’s jurisdiction under s.168 was only to determine whether a breach of covenant had occurred, it did not extend to determining whether the right to forfeit for a particular breach of that covenant had been waived (see at [26]).[37]These are ingenious arguments, but in my view they do not address the basic flaw in the Claimants’ case on forfeiture which led the Judge to strike it out. One can make the following comments.[38]To start with, it seems to me there is no real ambiguity in DJ Bell’s Order. This provided as follows (my emphasis): “1. The following issues, as identified in the Particulars of Claim, shall be referred to the First Tier Tribunal (Property Chamber) for determination as to whether there has been a breach by the tenant of a covenant or condition in the lease (as required by section 168(1) of the Commonhold and Leasehold Reform Act 2002). Until such time as the First Tier Tribunal shall have made a determination, the proceedings in this Court are stayed. 2.The issue of breaches of covenant in paragraphs: 2.1. 17(ii) to (vi) (including sub-paragraphs I to XIV) and paragraph 20(ii) of the Particulars of Claim. 3. There be liberty to apply. 4. Costs reserved. 5. It is recorded that the Claimant has accepted a cheque from the Claimant's solicitors in the sum of £660 without prejudice to the Claimant's allegations of breach as set out in the Particulars of Claim.” 2.1. 17(ii) to (vi) (including sub-paragraphs I to XIV) and paragraph 20(ii) of the Particulars of Claim.[39]The matters referred to the FTT were clearly defined in paragraph 2.1 of DJ Bell’s Order, by reference to paragraph 17 of the Particulars of Claim: in effect, there was a referral of all pleaded allegations of breach of the Flat Lease, save as regards failure to pay the ground rent of £600, which was not one of the matters mentioned in the s.146 Notice, and which in any event had been paid by the time DJ Bell came to make his Order.[40]At [42] of his Judgment, HHJ Simpkiss said that there was no reference to “any prior admissions or prior determinations” in the Particulars of Claim. That is not entirely accurate, however, because although the case advanced is certainly based on breaches of the Flat Lease (the introductory words of para. 17 allege squarely,[t]he Defendant has breached and continues to breach the terms of the Lease ...”), two of the sub-paragraphs within 17(vi) do in fact refer to admissions in reciting the allegations of breach. Sub-paragraph17(vi)(I) alleges that Ms Keith had “already admitted” kicking in a door in 2007, and sub-paragraph 17(vi)(II) alleges that one of the occupiers of the Flat admitted to moving a TV aerial.[41]I think it clear though, that all such matters were intended to be referred to the FTT for resolution. That was plainly the purpose of DJ Bell’s Order. There is nothing as a matter of language in the order, either express or implied, to suggest that any aspects of the allegations of breach were to be carved out.[42]I also consider that all such matters could be referred, in the sense that the FTT would have jurisdiction to deal with them. That includes the two points about alleged admissions. I note Mr Gatty’s argument based on Bedford v. Paragon Asra, but it is clear even from that case that the FTT’s jurisdiction is not to be confined in a manner that is artificial or unrealistic. The crucial finding in that case was that there was no jurisdiction if the question was whether, a breach having been established, the resultant right to forfeit had been waived. The question of waiver in that sense did not fall within the jurisdiction to determine whether there had been a breach: it was a separate matter which would only arise for consideration if there had been a breach. But following an earlier decision of the Lands Tribunal in Swanston Garage (Luton) Management Limited v. Langley-Essen [2008] L&TR 20, the UT in the Bedford case went on to say that there would be jurisdiction if the question was whether a covenant had been waived, such that there could be no breach of it (see at [29]). That would be an anterior question, ancillary to the question whether there had been a breach.[43]I take from this that questions ancillary to the issue of breach do properly fall within the jurisdiction of the FTT. That indeed was the approach of the UT in an earlier case, Cain v. LB Islington UKUT 117 (LC) at [17], where the point made was that orders for transfer to the FTT are often couched in general terms, and the Tribunal should therefore avoid adopting an over scrupulous approach to questions of jurisdiction. This reflects the fact that in many cases it will be artificial to try and separate out the question of breach from ancillary questions such as whether there has been an admission of breach.[44]This approach makes good practical sense. The present case is a good example of why that is so. The allegations about admissions in the Particulars of Claim were each made in the context of a broader case alleging breaches of covenant. As I read it, they formed part of the relevant background, and in each case were relied on to support the case that there had been a breach. In my view it would be quite artificial to say that such linked or ancillary allegations about admissions should have to be divorced from the primary allegations of breach and considered separately, in a different forum; or that DJ Bell intended that result in making his Order.[45]There is a related point. The first recital in the FTT’s Order of October 2023 states expressly, “Upon the parties having agreed terms in respect of all matters referred to the First-Tier Tribunal” under DJ Bell’s Order. This language is emphatic. The parties’ intention was plainly to resolve all matters pending between them relevant to the allegations of breach relied on by the Claimants and set out in the Particulars of Claim, and to do so by means of the agreed terms then put before the FTT for approval. I think it impossible to see that any subsidiary allegations about admissions in the Particulars of Claim were somehow intended to survive that process and to be available for the Claimants to advance notwithstanding the settlement they had reached.[46]The upshot is that there is no case based on prior admissions now remaining. Such limited allegations about prior admissions as were referenced in the Particulars of Claim were dealt with as part of the compromise the parties themselves arrived at in October 2023. The compromise terms, which are final and binding, record contemporaneous (2023) admissions, not historic ones. No other case based on prior admissions has ever been pleaded; there was no amendment application before the Judge; and indeed in his oral submissions I understood Mr Gatty to concede that he was not in fact seeking to advance any case on prior admissions as regards any of the non-money breaches of the Flat Lease – only in connection with the claim in respect of service charges (which is considered under Ground 6 below). Given all that, Grounds 1 and 2 ring hollow in my view, and must be rejected.

Grounds 3-5

[47]By Grounds 3-5 the Claimants propose a different solution, which is to say that DJ Bell’s Order must be construed in a manner which enables one to take account of any later (i.e., post April 2013) final determinations of breach by the FTT, in considering the validity of the s.146 Notice. The argument is that it is absurd to think otherwise, because the referral made to the FTT in February 2015 could never possibly have resulted in a final determination of breach before April 2013, and so DJ Bell must have intended that the County Court would eventually consider the forfeiture claim by reference to any breaches determined by the FTT, even if (inevitably) they came later. The argument then is that there are, in effect, final determinations of breach recorded in the FTT’s Order, because there are admissions of breaches memorialised in that Order which the FTT endorsed as resolving all matters referred to it by the County Court.[48]Again this is an ingenious argument, but I am not at all persuaded by it. As I see it, there is no getting around the clear words of the statute. The preconditions of s.168 are expressed as needing to be fulfilled before any s.146 Notice can be validly served. Either they are or they are not; and if they are not, then the landlord cannot serve a valid notice.[49]I accept it is true that the referral made by DJ Bell could never have resulted in a final determination of breach prior to April 2013, and that may be a material deficiency in DJ Bell’s Order; but the solution to that problem cannot involve construing the Order in a way which empowers the Court to override the clear terms of the statute and to order forfeiture of the Flat Lease even if the relevant statutory scheme was not complied with.[50]In any case, if the gist of the submission is that DJ Bell’s Order could never serve any useful purpose, I am not persuaded that one is pushed to such extremes. At least two possibilities suggest themselves. One, as I have already suggested (see [43] above), is that in the course of making any final determinations on the matters expressly referred to it, the FTT could have made ancillary findings that there had been pre-2013 admissions by Ms Keith. Another is that a final determination by the FTT made long after 2013, although not capable of validating the original s.146 Notice, would have provided a basis for serving a new one.[51]That addresses the principle of Ground 3. Grounds 4 and 5 though suggest that I am required to reach a different conclusion on Ground 3 because the question of the effect of DJ Bell’s Order has already been decided, both by HHJ George and by the Court of Appeal.[52]I do not agree. The reason for saying so is that the issue raised by Ground 3 was simply not part of the reasoning either of HHJ George or of the Court of Appeal.[53]The background is that in September 2019, over 4 years after DJ Bell’s Order transferring issues to the FTT, Ms Keith made a further application seeking to strike out the County Court Claim, in light of the fact that nothing had happened in the meantime. Three bases were put forward. The first was that Mr Benka had not served a valid s. 146 Notice - the same argument tried before DJ Bell. The second was that Mr Benka was in breach of DJ Bell’s Order. The third was that Mr Benka was guilty of inordinate and inexcusable delay.[54]The strike out application was first dealt with by DDJ Anstis in December 2019. It appears from the reasons for his decision, which are set out in the Court of Appeal’s Judgment at [21], that he did so on the second and third bases relied on by Ms Keith – i.e., failure by Mr Benka to comply with DJ Bell’s Order coupled with ongoing delay.[55]On appeal, HHJ George overturned that decision. Her essential reasoning (see her Judgment at [63]-[68]) was that there was no discretion to strike out, because this could only arise if there was breach of a Court Order, and properly construed DJ Bell’s Order had not imposed any obligation on Mr Benka to do anything – it was for the Court to take the initiative to refer matters to the FTT, not him, and so he was not in breach.[56]The Court of Appeal agreed with the idea that DJ Bell’s Order did not impose any obligation on Mr Benka, and so he was not in breach of it; but said that the discretion to strike out proceedings was not limited to cases of breach of an order, and could be exercised in other cases involving an abuse of process. On the facts, however, there had been no such abuse by Mr Benka, because the fault effectively lay with the Court for not transmitting the case to the FTT, and while the proceedings before the FTT remained to be resolved, there could be no abuse arising from a failure to pursue the County Court proceedings which the Court itself had stayed (see the Judgment of Lewison LJ at [57]). Accordingly, the appeal was allowed and the proceedings reinstated.[57]None of this to my mind has any relevance to the issue raised by the present Ground 3.[58]Mr Gatty argued that what was significant was the way in which the first of Ms Keith’s bases for seeking a strike-out was dealt with – i.e., the assertion that Mr Benka had failed to serve a valid s. 146 notice. That point was not taken up by DDJ Anstis in his reasoning. In her Judgment, HHJ George dismissed it at para. [20] by saying, “That seems to have been the same issue that was determined by DJ Bell. There was no appeal of DJ Bell’s order”. In the Court of Appeal, in the final paragraph of his Judgment setting out a summary of the result, Lewison LJ said he had decided to allow the appeal and reinstate the proceedings:
“... with reluctance, because the claim is thoroughly stale, and it may well be that DJ Bell ought to have struck it out back in 2015 on the ground that at that time Mr Benka was not entitled to serve a section 146 notice. But that decision was not appealed, and it is now too late to do so.”
[59]In light of these observations, Mr Gatty’s argument was as follows. It is no longer open to Ms Keith to seek to strike out the County Court claim on the basis that it does not properly assert compliance with s. 168 CLRA 2002 – i.e., on the basis that there is no allegation of either a pre-2013 final determination of breach, or admission of breach. That is just the issue which was argued before DJ Bell in February 2015 and he refused to strike out the claim and there was no appeal against that Order. The finality of that position has now been recognised by both HHJ George and by the Court of Appeal. If the point about non-compliance with s.168 is so obviously correct and is still available to Ms Keith, then why did neither HHJ George nor the Court of Appeal uphold the decision of DDJ Anstis on that basis as they could have done, and agree with him that the claim should be struck out?[60]Once again these are creative points, but in my opinion are not persuasive. They involve reading too much into the Order made by DJ Bell. It is obviously correct to say that he declined to strike out the proceedings before him in February 2015, but I think it is going too far to say that the effect of his Order is that that question cannot now be revisited. On the contrary, it seems to me that the effect of DJ Bell’s Order was to set in train a process which contemplated that it would be. The substance of what DJ Bell did was only to stay the proceedings before him and refer the matter to the FTT for further inquiries. The matter was to come back once that process was completed. At that point, it was plainly to be open to the Court to revisit the question of strike out in light of the outcome achieved. I think that conclusion is consistent with the way DJ Bell’s Order is expressed, because it does not record the strike out application being dismissed, but instead – as far as the County Court proceedings are concerned – does no more than say they are stayed pending determination of the proceedings in the FTT. We now know the outcome of those proceedings. It seems to me that in in such circumstances, revisiting the question of strike out or dismissal is consistent with the process DJ Bell set in place.[61]As to HHJ George and the Court of Appeal, it seems to me entirely understandable that at the time, they did not consider it open to them to base their decisions on any question as to the validity of the s.146 Notice. That is because investigation of that point had been referred to the FTT, pursuant to a pending mechanism in an Order which had not been appealed. The only available course, obviously, was to let that mechanism play out. Any attempt to do otherwise would no doubt have prompted vigorous opposition from the Claimants themselves, on the basis that they should be entitled to see the process through to its conclusion. That was plainly their overall position in seeking to resist any strike out on the basis of breach of DJ Bell’s Order or delay. But now that the process has played out and has reached its end-point, the Claimants must live with it. I do not consider that anything said either by HHJ George or by the Court of Appeal is inconsistent with that conclusion, still less that it mandates a different result. In fact, I would say the contrary is true.

Ground 6

[62]This is stand-alone point.[63]Ground 6 challenges the conclusion at [62]-[63] of the Judgment, where HHJ Simpkiss rejected the Claimants’ argument that they had an arguable case that Ms Keith had admitted a breach of the covenant to pay service charges on the Flat, in certain correspondence in 2007. The Judge’s reasoning at [62] was that(1) the allegation of an admission was not pleaded (the pleaded case on this point is based solely on alleged breach, not admission);(2) the relevant correspondence had not even been produced;(3) the allegedly outstanding service charges were not explained or particularised; and(4) all of that was despite the long history of the proceedings and the Claimants’ knowledge “for many years” of the argument that the basic elements of their case had not been properly set out.[64]The Claimants’ submission on this appeal is that the Judge adopted too strict an approach. The Claimants say they were not obliged to make good their point on the balance of probabilities, only to show that it was sufficiently strong to survive a strike out or an application for summary judgment. The Claimants argue they can discharge that burden because there are reasonable grounds for bringing the claim (CPR, rule 3.4(2)(a)), and a real prospect of it succeeding at trial (CPR, rule 24).[65]I reject this Ground of Appeal as well. It is approaching things from the wrong starting point. The Judge approached matters from the right starting point, which is that the putative claim based on an alleged admission in 2007 is not part of the pleaded case on forfeiture, even after 12 years of litigation. That being so, it is not a matter of whether the claim should be struck out or can survive an application for summary judgment, because it has not yet been made. The relevant question is whether the Particulars of Claim should be amended to allow it to be made.[66]As to that, the short point is that no amendment application has been put forward. That is enough to dispose of the issue. Even if an application had been made, it seems to me it would face insuperable difficulties and would be bound to fail. For one thing, there is the fact that the proceedings are so old and (to use the words of Lewison LJ) thoroughly stale. For another, all claims relating to the service charge issue have now been compromised, as recorded in the FTT’s Order. For yet another, the putative claim is shadowy and unclear, for all the reasons given by the Judge. These include the fact that the alleged admission is said to have been made by Ms Keith (or on her behalf) in a letter dated 1 February 2007. But that letter has not been produced. Instead, the Claimants rely on a letter from their own solicitors Charles Russell, sent a year later, on 28 February 2008, which references it. The breakdown of the figure, and precisely what was said about it on behalf of Ms Keith, are thus unclear. It is also unclear how the amount said to have been admitted as outstanding in early 2007, relates to the balance referenced in the Particulars of Claim as outstanding over six years later, in 2013. Some or all of what was outstanding in 2007 may have been paid off in the intervening period, and thus the relevant breach, even if admitted, remedied.[67]For all those reasons, in my opinion Ground 6 must fail as well.

The Ground Rent Issue: was there a liability to pay?

[68]Grounds 7-10 concern the claim for forfeiture based on the failure to pay ground rent: this is the £660 recorded by DJ Bell in his Order of February 2015, payable both in relation to the Flat (as to £600), and as to the garage (as to £60).[69]It is common ground that the preconditions in s. 168 CLRA 2002 are not relevant to this aspect of the claim. The debate is rather about the relevance of the requirements in s. 166 CLRA 2002. This provides as follows:
“166 Requirement to notify long leaseholders that rent is due (1) A tenant under a long lease of a dwelling is not liable to make a payment of rent under the lease unless the landlord has given him a notice relating to the payment; and the date on which he is liable to make the payment is that specified in the notice. (2)The notice must specify - (a) the amount of the payment, (b) the date on which the tenant is liable to make it, and (c) if different from that date, the date on which he would have been liable to make it in accordance with the lease, and shall contain any such further information as may be prescribed. (5) The notice - (a)must be in the prescribed form, and (b)may be sent by post.” (2)The notice must specify - (a)must be in the prescribed form, and (b)may be sent by post.”

(a)must be in the prescribed form, and

[70]The Judge’s reasoning was that, in order to make good their forfeiture claim on the basis of unpaid rent, the Claimants would need to show compliance with s. 166. That they could not do, since there was no evidence of any notice under s. 166 ever having been served, and there was no pleaded case that the requirements of the section had been complied with. Consequently, the Judge felt justified in granting Ms Keith summary judgment on this aspect of the forfeiture claim (Judgment at [69]).

Grounds 7 and 8

[71]Turning first to Grounds 7 and 8, these rest on the idea that there was an illogicality in the Judge dismissing the forfeiture claim on the footing that there was no liability to pay any rent arrears, when Ms Keith had paid it in 2015, thus admitted a liability to pay.[72]In my opinion, these Grounds mistakenly assume that one can infer an admission of liability from the fact that a payment was made. It is entirely commonplace that payments are made without any admission of liability. That was done here, expressly, as regards the later (2023) payment of service charge arrears (see above at [30]). But the reservation need not be express. It can also be implied from the circumstances. As I understood it, that was basically Mr Grundy KC’s submission as regards the payments of rent, and I think he was correct on this point.[73]Ms Keith’s reservations of her position as regards liability to pay rent in the technical sense were expressed in at least two ways, before the payment was in fact made and recorded in DJ Bell’s Order. First, in her Defence at para. 17, she recited the fact that although she had tendered rental payments to Mr Benka, she did “not accept that she has breached and/or continues to breach the terms of the Lease as alleged or at all”. The pleading went on to ask for “evidence of the alleged arrears of the reserved rents in the form of a schedule”, which is consistent with the idea that no s.166 notice had been served. The second reservation was in the Skeleton Argument of Ms Keith’s counsel, Mr Falkowski, for the hearing before DJ Bell. This again recited that payments had been tendered but refused, and then went on (amongst other things) to refer specifically to the requirements of s.166 CLRA 2002. This was all against the background of Mr Benka not wanting to accept any payments of rent, for fear of prejudicing any entitlement to forfeiture.[74]The way through this tangle, arrived at with the assistance of the Judge, was for Ms Keith to make, and for Mr Benka to accept, payment of the outstanding amounts. This was done expressly without prejudice to Mr Benka’s position (see above at [8]), but in my view it must also be taken to have occurred without prejudice to Ms Keith’s position that she was not technically liable and therefore not in breach. Given the background, I do not find it possible to read into the payment by Ms Keith any admission that she had done anything wrong: on the contrary, her position was that she had done more than she needed to, by tendering payments even though Mr Benka had not properly demanded them and even though he did not want to receive them. As I see it, the position as recorded in DJ Bell’s Order was intended to be neutral as between the parties. It was intended to provide a practical solution to what was essentially a side-issue and to clear the way for the more material questions of breach to be resolved by means of the referral to the FTT. It was not intended itself to amount to an admission of breach which would justify forfeiture of the Flat Lease.

Grounds 9 and 10

[75]Grounds 9 and 10 make the point that s.166 CLRA 2022 applies only to dwellings, and so does not apply to the lease of the Garage, which is separate to the lease of the Flat.[76]That is correct, which means that technically it is entirely possible for Ms Keith to have been liable for the £60 rent in respect of the garage by February 2015, even if the formal requirements of liability under s.166 were not met.[77]The point is again a somewhat hollow one, however, so far as the claim for forfeiture is concerned. That is because the only claim for forfeiture advanced by Mr Benka in his pleadings was in respect of the Flat Lease, not the Garage Lease. It was suggested in argument that the matter could be addressed by an amendment, but there does not appear to have been an amendment application before the Judge, and it is too late to make one now.

The Money Claims

[78]Ground 11 is concerned not with the claim for forfeiture, but instead with Mr Benka’s money claims – i.e., the pleaded claims for rent and service charge arrears.[79]By the time of the hearing before DJ Simpkiss, payments had been made in respect of each: £660 had been paid in respect of rent in February 2015 as recorded in DJ Bell’s Order, and £8,000 in respect of “all outstanding service charge liabilities ... (inclusive of interest)” in October 2023, as recorded in the FTT Order of 10 October 2023.[80]In light of these matters, DJ Simpkiss dealt with the Money Claims briefly. In his Judgment at [70], he said that having dismissed the claim for forfeiture, the remaining question was whether “there is any further claim which can still be pursued”. He set out his conclusion on the money claims at [72]:
“The rent and service charges have been dealt with. The rent has been paid and the service charges issue has been compromised. I am not at this stage dealing with costs which will be disposed of at a further hearing.”
[81]In challenging this conclusion, Mr Gatty’s argument was really about the unfairness of the outcome in terms of its costs implications. In his Skeleton Argument, he said that by summarily dismissing the money claims, the Judge wrongly put Ms Keith in the position of the successful party, whereas in fact the Claimants were the ones who had made substantial recoveries, and moreover had had to sue Ms Keith in order to get them. Mr Gatty made the related point that there was a claim for interest which the Judge did not properly deal with at all.[82]The following points can be made: i. Although Ground 11 is couched in terms of the Judge being wrong to dismiss the money claims summarily, it seems to me that in fact, given the manner in which he dealt with them (see above), his decision was to strike them out under CPR, rule 3.4. In my opinion the Judge was correct to do so. ii. Taking the service charge claim first of all, that had been compromised by the agreement recorded in the FTT’s Order, including any claim for interest. There was nothing left in it to continue to a trial and it was appropriate to strike it out because it would be pointless to continue with a claim which was bound to fail. Insofar as any costs consequences might flow from this outcome, the Judge expressly left open the question of costs in his paragraph [72], although I do not see why in costs terms his decision made things any better or worse for the Claimants. All he was doing was formalising the position the parties had already agreed between themselves. iii. As to the claim in respect of rent, this too had been paid, in 2015. Again, it is difficult to see that there was anything left of this claim to proceed to trial, and continuing it would have been pointless and an abuse of process. Mr Gatty said there might be a claim for interest, and it is true that there is a general claim for interest in para. 28 of the Particulars of Claim. This point was not developed in argument, however, and would face obvious problems. If there was never any liability to pay rent in respect of the Flat Lease (see above), neither can there have been any liability to pay interest. Admittedly the position is different as regards the Garage, but if it is correct that payments of rent were tendered which were not accepted (which seems a fair inference given the terms of DJ Bell’s Order), then additional complexities arise: a creditor cannot claim interest for periods following an attempted discharge of his debt which he has refused to accept, even if the debtor is liable to pay. Given such difficulties, in my view the putative claim for interest remains too inchoate to be accorded any weight. Insofar as Mr Gatty’s concern was really about the impact of the Judge’s decision on costs, I would again make the point that the Judgment under appeal did not deal with costs. The Judge left that issue open for submissions on another occasion.

The Damages Claims

[83]Finally there is Ground 12, which challenges the Judge’s decision to dismiss the damages claims – i.e., Mr Benka’s claims for lost income and costs arising from Ms Keith’s breaches of lease.[84]I am afraid that I consider the Judge did fall into error on this issue.[85]His conclusion is expressed in a single sentence at the end of paragraph [70] of his Judgment, where he said simply: “There is no damages claim”.[86]That is incorrect, however. The claims are set out at paras 19(i) and (ii) of the Particulars of Claim, as mentioned above at [5]. In saying otherwise the Judge made a straightforward error, and in consequence did not address his mind to the question whether the damages claims should be struck out or otherwise appropriately dealt with.[87]What should follow from this? It seems to me that in such circumstances, this Court should reach its own view as to the matters which were properly before the Judge, but should not go further than that.[88]It was common ground that such matters certainly included Ms Keith’s strike out application. What of her application for summary judgment? During the hearing Mr Gatty’s submission was that in fact, Ms Keith’s application for reverse summary judgment extended only to the Claimants’ forfeiture claim, and not the damages claims. Although there is some ambiguity about this (reflected in Ground 12 itself, which refers to the Judge’s summarily dismissing the damages claims), I consider that Mr Gatty was correct in his submission. The precise terms of the Application Notice of 2 April 2024 refer to Ms Keith applying for “summary judgment on those parts of the Claimants (sic.) claim for forfeiture that are not struck out.” Ms Keith’s Witness Statement (para. 19) also made it clear that her summary judgment application was brought as a back-up, in case she was not able to strike out the forfeiture claim on the basis that there was no proper pleading that the requirements of s.146 and s.166 CLRA 2002 had been complied with. No relief was sought in connection with the damages claims as such.[89]Given those conclusions, in my opinion the appropriate course is for me to undertake the task the Judge should have undertaken, and to consider whether the damages claims are susceptible of being struck out. But I should not go further than that. I do not think it is for this Court on appeal to assess whether the damages claims are susceptible to reverse summary judgment, because no such application was made and so that question is not within the scope of this appeal.[90]As to strike out, Mr Grundy KC in his Skeleton said that the damages claims were not adequately particularised, but I disagree. The case advanced is straightforward enough: Mr Benka, as owner of certain other flats in the same building, lost income or incurred costs when breaches of the Flat Lease by Ms Keith caused his other tenants to want to leave or to have their rent reduced. Figures are given for the lost income and wasted costs.[91]It also seems to me that although these points are not yet expressly pleaded, one must also make allowance for the fact Ms Keith has now admitted breaches of the Flat Lease during time periods which correspond with those relevant to Mr Benka’s claims for damages – see [28]-[29] above. These admissions came too late to validate the s.146 Notice of April 2013, but the claims for damages are something different and are not contingent on the s.146 Notice being valid.[92]Finally, although it is true that there is no express claim for damages as such in the Prayer for Relief, para. (ii) of the Prayer claims an overall amount of £32,193.34 referenced as arrears, and embedded within that, as Mr Grundy KC accepted, were the figures of £7,535 and £800 referenced in paras 19(i) and (ii). There is also a general claim at (vi) for such further or other relief as the court sees fit.[93]For the purposes of a strike out application the pleaded case must be taken at face value. The test is whether the statement of case – as a matter of pleading - discloses reasonable grounds for bringing the claim in question (CPR, rule 3.4(a)). Given the points made above, and although they can no doubt be improved, in my opinion the Particulars of Claim in this case sufficiently cross that threshold.[94]In such circumstances, and with some regret, it seems to me that I should allow the appeal on Ground 12. I should be clear: I do not say that the damages claims will succeed, or even that they will survive an application for summary judgment if one is made. I say only that in my opinion, there is no proper basis for striking them out, both in light of the points made immediately above and in light of the fact, as already determined by the Court of Appeal, that in the very unusual circumstances of this case, the many delays in pursuing them do not amount to an abuse of process.[95]I will need to hear further from the parties on what follows from this, but provisionally it seems to me the matter will need to be remitted to the County Court in order for the damages claims to be resolved. That will need to include amending the Particulars of Claim to take account of the admissions made by Ms Keith, insofar as they are relevant. I am also minded to think that the present would be an appropriate case for a referral to mediation, but I will invite further consideration of that by the parties.

Overall Conclusion and Disposition

[96]I will allow the appeal on Ground 12. The appeal is dismissed on all other Grounds. I would ask the parties please to draw up an order reflecting the outcome of this Judgment and dealing with any consequential matters, including costs. If the terms cannot be agreed, any areas of dispute can be resolved at a short hearing when this Judgment is handed down. APPENDIX: APPELLANTS’ GROUNDS OF APPEAL The learned Judge’s decisions to strike out the forfeiture claim and summarily dismiss the balance of the claim were wrong or unjust because of serious procedural or other irregularities for the following reasons:-

APPENDIX: APPELLANTS’ GROUNDS OF APPEAL

[1]The Judge erred in law in holding that District Judge Bell’s order dated 2 February 2015 (“the Bell Order”) referred to the First-tier Tribunal the issue of whether there had been a determination or admission of breach of covenant for the purposes of section 168 of the Commonhold and Leasehold Reform Act 2002.[2]Alternatively to 1 above, the Judge erred in law in holding that there was no reasonable prospect of it being held at trial that District Judge Bell's order dated 2 February 2015 did not refer the issue of whether there had been a determination or admission of breach of covenant for the purposes of section 168 of the Commonhold and Leasehold Reform Act 2002 to the First-tier Tribunal.[3]The Judge failed to consider, alternatively erred in law in rejecting, the Claimants’ submission that it was a necessary implication of the Bell Order that the Court would consider the possession claim with reference to those breaches of covenant determined by the First-tier Tribunal notwithstanding that those breaches may not have been determined prior to the service of the First Claimant’s section 146 notice (“the Notice”), so that it was no longer open to the Court to dismiss or strike out the claim on the ground that there had been no determination or admission prior to service of the Notice.[4]The Judge erred in law in holding that the rationes decidendi of the decisions of(1) Her Honour Judge George dated 11 January 2023 and(2) the Court of Appeal handed down on 13 July 2023 did not include that the issue of whether to strike out or dismiss the claim because there had not been a determination or admission of breach of covenant before service of the Notice had been decided in the Claimants' favour by District Judge Bell in February 2015.[5]The Judge erred in law in holding that it remained open to the Court to dismiss or strike out the claim on the ground that there was no determination or admission of breach before service of the Notice notwithstanding the Bell Order, which was not appealed, and the aforesaid decisions of Her Honour Judge George and the Court of Appeal.[6]Without prejudice to the generality of 5 above, the Judge erred in law in striking out the claim to forfeiture for non-payment of service charge on the ground that there had been no determination or admission of failure to pay the same before issue of proceedings in the face of evidence which showed a real prospect of the Claimants establishing at trial that liability to pay £2,008 of the service charges claimed in the proceedings had been admitted before issue of the proceedings (and also before service of the Notice).[7]The Judge failed to consider the Claimants' submission that liability to pay the rent claimed was admitted by the Defendant in the Defence so that it was not open to her to rely on section 166 of the Commonhold and Leasehold Reform Act 2002 to deny liability for the rent paid in February 2015.[8]Further or alternatively to 7 above, the Learned Judge erred in law in giving summary judgment against the Claimants in respect of non-payment of rent because of non-compliance with section 166 of the Commonhold and Leasehold Reform Act 2002 notwithstanding paragraphs 17(i) and 20(i) of the Defence and the payment of rent in February 2015 which amount to an admission that rent was due.[9]The Judge failed to consider the Claimant's submission that section 166 of the Commonhold and Leasehold Reform Act 2002 had no application to the £60 of rent arrears attributable to the garage leases.[10]Further or alternatively to 9 above, the Learned Judge erred in law in giving summary judgment against the Claimants in respect of non-payment of rent under the garage lease because of non-compliance with section 166 of the Commonhold and Leasehold Reform Act 2002, which did not apply to those leases.[11]The Judge erred in law in summarily dismissing the whole of the money claims for rent and service charge arrears when the Claimants had been paid some of the amounts claimed after issue of the proceedings, because the test contained in CPR 24.3 was not satisfied in respect of the rent and service charges money claims insofar as they related to sums which were paid after issue.[12]The Judge wrongly summarily dismissed the Claimants' other claims when it had not been shown that their claims at para. 19(i),(ii) of the Amended Particulars of Claim for losses caused by breach of covenant had no real prospect of success.