89 Holland Park (Management) Limited v Andrew Lawson Dell & Anor [2026] EWHC 1624 (Ch)

[2026] EWHC 1624 (Ch)Case No PT-2025-000022IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESVenue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 03/07/2026
Before
MASTER MCQUAIL
Between
89 HOLLAND PARK (MANAGEMENT) LIMITEDClaimant(1) ANDREW LAWSON DELLDefendants(2) JENNIFER SIMONE DELLDefendant
Timothy Polli KC and Edward Blakeney (instructed by Gowling WLG (UK) LLP) for ClaimantMark Loveday and Mattie Green (instructed by Howard Kennedy LLP) for DefendantsHearing Hearing date: 18 March 2026
Judgment Approved by the court
[1]This claim concerns Flat 5, 89 Holland Park, London W11 3RZ. The Claimant is the lessee-owned management company freehold proprietor of the building. The Defendants are owners of a long lease of Flat 5 (the Lease).[2]The background to the dispute, up to that point, was summarised by Falk LJ in 89 Holland Park (Management) Ltd v Dell [2023] EWCA Civ 1460 [1-9] (89HP v Dell). I will adopt the abbreviations used there in this judgment: “1. 89 Holland Park ("89 HP") is a substantial detached Victorian villa in West London which is divided into flats. There are currently five flats held on long leases. The freeholder is the appellant, 89 Holland Park (Management) Ltd, a management company owned by the leaseholders ("Manco"). The respondents, Andrew and Jennifer Dell, are the owners of one of the flats. 2. This appeal concerns whether the service charge provisions in the lease of the Dells' flat permit the recovery of substantial costs incurred by Manco in a dispute with the owner of a neighbouring property. The issue is therefore one of construction of the lease. The background to the dispute can be summarised as follows. 3. In 1965 the then freeholder of 89 HP sold land alongside it with planning permission for a house (the "Site"). The sale of the Site was subject to certain positive and negative covenants which were supplemented by a further deed entered into on 10 July 1968. One of the covenants, under which the purchaser undertook to build a boundary wall, led to proceedings culminating in the decision in Radford v de Froberville [1977] 1 WLR 1262 , which concerned the measure of damages for breach of the covenant. 4. The material covenants for present purposes are contained in the 1968 deed. In summary, clause 2(b) requires the owner of the Site to obtain the prior approval of the freeholder of 89 HP to any "plans drawings and specifications" before applying for planning or other necessary permissions in respect of them, and clause 3 prevents work being commenced before the freeholder has approved "definitive plans drawings and specifications" (together, the "Covenants"). 5. The Site remained unbuilt and was eventually acquired by the architect Sophie Hicks in 2012. Ms Hicks' plans for the Site, which included a "glass cube" and two floors below street level, did not meet with the approval of 89 HP's residents and have resulted in a significant amount of litigation, as follows:(1) Ms Hicks initially contended that the Covenants did not bind the land or were not enforceable. This led to a claim by Manco and the leaseholders of four flats, including the Dells, which was determined by Robert Miles QC, sitting as a Deputy High Court Judge, in 2013 ( 89 Holland Park (Management) v Hicks [2013] EWHC 391 (Ch) , the "First Claim"). Mr Miles QC determined that both Manco and the leaseholders could enforce the Covenants, but the consents required were those of Manco as the freeholder. He also determined that consent could not be unreasonably withheld.(2) The following year Ms Hicks issued a claim against Manco seeking a declaration that it had unreasonably refused approval of her plans (the "Second Claim"). The Second Claim was ultimately discontinued.(3) Ms Hicks sought approval for revised plans in late 2016. Manco took advice and refused approval in January 2017. Its reasons related to the design and aesthetics of the proposals, their adverse effect on trees, loss of amenity during the works and certain specified structural and/or construction issues.(4) In August 2017 Ms Hicks issued a further claim alleging that Manco's refusal to approve the revised plans was unreasonable (the "Third Claim"). She was initially partially successful before Judge Pelling QC, sitting as a Deputy High Court Judge, on the basis that the Covenants were concerned only with the protection of Manco's limited property rights rather than the interests of leaseholders, and as a result only structural rather than aesthetic issues could justify a refusal of approval ( Hicks v 89 Holland Park (Management) [2019] EWHC 1301 (Ch) ).(5) Manco appealed successfully to the Court of Appeal ( [2020] EWCA Civ 758 ), which determined that Manco was entitled to consider the interests of leaseholders, including aesthetic issues and the impact on amenity. Following a remittal Judge Pelling QC dismissed Ms Hicks' claim ([2021] EWHC 930 (Comm) ), concluding that Manco was entitled to refuse approval. 6. Manco incurred substantial costs in connection with the dispute, only a portion of which have been recovered from Ms Hicks. In addition to the legal and professional costs (including expert witness fees) in relation to the three claims, Manco incurred legal and professional fees in connection with Ms Hicks' requests for approval under the Covenants and in relation to planning objections. It sought to recover the costs from the lessees by way of ad hoc demands for service charges. 7. To give an illustration of the numbers involved, by 18 January 2021 Manco had invoiced the lessees a total of £2,763,521 in connection with the costs of the dispute, of which £1,292,157 was incurred in 2019 (we were informed that the aggregate figure has since been reduced somewhat through recoveries from Ms Hicks). In contrast, routine costs of insurance and maintenance for 2019 amounted to £30,645. 8. The Dells were initially prepared to pay the demands, but by an email dated 9 July 2014 informed Manco that they were unwilling to spend more on legal proceedings. The disputed amounts all postdate that email, and relate to the costs of the Second Claim, the Third Claim and planning objections (together, the "Disputed Costs"). The Disputed Costs amount to £430,411. 9. On 27 March 2020 the Dells applied to the First-tier Tribunal ("FTT") pursuant to s.27A of the Landlord and Tenant Act 1985 to determine whether and to what extent the Disputed Costs were recoverable as service charges under the terms of the Dells' lease. The FTT concluded that they were. The Dells appealed to the Upper Tribunal ("UT"). In a decision by Judge Elizabeth Cooke, the appeal was allowed. Manco appeals to this court with the permission of the UT.” (1) Ms Hicks initially contended that the Covenants did not bind the land or were not enforceable. This led to a claim by Manco and the leaseholders of four flats, including the Dells, which was determined by Robert Miles QC, sitting as a Deputy High Court Judge, in 2013 ( 89 Holland Park (Management) v Hicks [2013] EWHC 391 (Ch) , the "First Claim"). Mr Miles QC determined that both Manco and the leaseholders could enforce the Covenants, but the consents required were those of Manco as the freeholder. He also determined that consent could not be unreasonably withheld. (2) The following year Ms Hicks issued a claim against Manco seeking a declaration that it had unreasonably refused approval of her plans (the "Second Claim"). The Second Claim was ultimately discontinued. (3) Ms Hicks sought approval for revised plans in late 2016. Manco took advice and refused approval in January 2017. Its reasons related to the design and aesthetics of the proposals, their adverse effect on trees, loss of amenity during the works and certain specified structural and/or construction issues. (4) In August 2017 Ms Hicks issued a further claim alleging that Manco's refusal to approve the revised plans was unreasonable (the "Third Claim"). She was initially partially successful before Judge Pelling QC, sitting as a Deputy High Court Judge, on the basis that the Covenants were concerned only with the protection of Manco's limited property rights rather than the interests of leaseholders, and as a result only structural rather than aesthetic issues could justify a refusal of approval ( Hicks v 89 Holland Park (Management) [2019] EWHC 1301 (Ch) ). (5) Manco appealed successfully to the Court of Appeal ( [2020] EWCA Civ 758 ), which determined that Manco was entitled to consider the interests of leaseholders, including aesthetic issues and the impact on amenity. Following a remittal Judge Pelling QC dismissed Ms Hicks' claim ([2021] EWHC 930 (Comm) ), concluding that Manco was entitled to refuse approval.[3]The decision of the FTT is dated 3 September 2021. The decision of the UT is dated 1 July 2022 and the Court of Appeal gave judgment on 8 December 2023. The Court of Appeal determined the dispute in favour of the Dells and held that the Disputed Costs were not recoverable as service charges. There followed an unsuccessful application by Manco for permission to appeal to the Supreme Court.[4]The Dells sought to enforce the costs order in their favour in the Court of Appeal by threatening to wind-up Manco. Manco applied for an injunction to restrain winding-up on the basis that it had a claim against the Dells which would exceed their debt. That application was compromised on the Dells’ undertaking not to present a petition pending the conclusion of the present claim.[5]On 9 January 2025, Manco issued this claim against the Dells in the sum of £424,987.25 made up of the £325,638.34 (the subject of the dispute determined by the Court of Appeal) (the FTT Costs) and costs invoiced between 17 April 2020 and 17 May 2022 of £99,348.91 (the New Costs Claim).[6]Annexed to the Particulars of Claim is a Schedule which lists the 25 issued invoices ranging in date from 24 January 2012 to 27 January 2020 covering the FTT Costs and a 26th item supported by a sub-schedule listing the invoices making up the New Costs Claim. The Dells paid their share of the costs of the First Claim, represented by the first six invoices in the Schedule rendered before the date of the 9 July 2014 email. The Dells paid in full the next five invoices in the Schedule and paid 50% of the following seven invoices in the Schedule. The Dells may in due course seek the return of payments made in respect of these 12 invoices.[7]Manco’s claim is put in a number of ways:(i) in contract which is pleaded as follows: “the Claimant and the Defendants agreed (together with the other leaseholders in the Building) that, if and insofar as Ms Hicks’ proposals were objectionable, (1) the Claimant would oppose Ms Hicks’ proposals, if necessary with litigation, and (2) they personally would fund the entirety of the Claimant’s costs of doing so with each of the 5 flats paying 20% of the total incurred (“the Agreement”).”(ii) it says that the Dells are estopped from denying that the services charges are recoverable pursuant to the service charge machinery of the Dells’ lease;(iii) it says that it is entitled to compensation for unjust enrichment;(iv) on an alternative and more limited contractual basis extending only so far as the costs were incurred in protecting the structure of the building; or(v) on an alternative unjust enrichment basis to the extent of the alternative contractual basis.

The Application

[8]The Dells have brought an application dated 24 October 2025 to strike out or for reverse summary judgment on Manco’s claim (the application so far as it sought security for costs has been compromised). The Dells’ overarching submission is that following the extensive and expensive litigation in which the parties have been engaged it should not now be open to Manco to start again and argue that the legal relationship was a collateral contract or something else. They say that to do so would be unjust or abusive in circumstances where the issue whether the costs of the Second and Third Claims and in relation to planning matters could be recovered from them by way of service charges under the provisions of the Lease was determined against Manco by the Court of Appeal.

Strike Out/Summary Judgment

[9]The principles to be applied to applications under CPR 3.4 or CPR 24.3 are well known and it is not necessary to set them out here.

The Lease and the FTT Proceedings

[10]The Lease contains service charge machinery in conventional form governing the recovery from the Dells of costs expended by Manco. As Falk LJ explained at 89HP v Dell at [39] “a conclusion that service charges may be levied in respect of a particular item of expenditure involves, at least in principle, a finding that the Lessor is under an obligation to incur it.” Under the Lease the Dells are bound to pay 24.67% of the Common Parts Expenditure and 19.83% of the General Expenditure less the Common Parts Expenditure. Each of the Common Parts Expenditure and the General Expenditure is defined within the Lease[11]The Landlord and Tenant Act 1985 contains the following relevant provisions: 18. — Meaning of “service charge” and “relevant costs” .(1) In the following provisions of this Act “service charge” means an amount payable by a tenant of a [dwelling]1 as part of or in addition to the rent— (a) which is payable, directly or indirectly, for services, repairs, maintenance [, improvements] or insurance or the landlord's costs of management, and (b) the whole or part of which varies or may vary according to the relevant costs.(2) The relevant costs are the costs or estimated costs incurred or to be incurred by or on behalf of the landlord, or a superior landlord, in connection with the matters for which the service charge is payable.(3) For this purpose— (a) “costs” includes overheads, and (b) costs are relevant costs in relation to a service charge whether they are incurred, or to be incurred, in the period for which the service charge is payable or in an earlier or later period. 27A Liability to pay service charges: jurisdiction (1) An application may be made to [the appropriate tribunal] for a determination whether a service charge is payable and, if it is, as to— (a) the person by whom it is payable, (b) the person to whom it is payable, (c) the amount which is payable, (d) the date at or by which it is payable, and (e) the manner in which it is payable. (2) Subsection (1) applies whether or not any payment has been made. (3) An application may also be made to [the appropriate tribunal]2 for a determination whether, if costs were incurred for services, repairs, maintenance, improvements, insurance or management of any specified description, a service charge would be payable for the costs and, if it would, as to— (a) the person by whom it would be payable, (b) the person to whom it would be payable, (c) the amount which would be payable, (d) the date at or by which it would be payable, and (e) the manner in which it would be payable.(4) No application under subsection (1) or (3) may be made in respect of a matter which— (a) has been agreed or admitted by the tenant, (b) has been, or is to be, referred to arbitration pursuant to a post-dispute arbitration agreement to which the tenant is a party, (c) has been the subject of determination by a court, or (d) has been the subject of determination by an arbitral tribunal pursuant to a post-dispute arbitration agreement.(5) But the tenant is not to be taken to have agreed or admitted any matter by reason only of having made any payment.(6) An agreement by the tenant of a dwelling (other than a post-dispute arbitration agreement) is void in so far as it purports to provide for a determination— (a) in a particular manner, or (b) on particular evidence, of any question which may be the subject of an application under subsection (1) or (3).(7) The jurisdiction conferred on [the appropriate tribunal] in respect of any matter by virtue of this section is in addition to any jurisdiction of a court in respect of the matter. [...][12]The Dells applied to the FTT for a determination that the FTT costs were not recoverable as service charge. There were four issues before the FTT:(i) had the Dells agreed to pay some of the costs so that the FTT had no jurisdiction;(ii) were the costs recoverable as service charge;(iii) were the Dells estopped from challenging the validity of ad hoc demands for the costs as service charges; and(iv) were the costs reasonably incurred and therefore recoverable under section 19 of the 1985 Act.[13]The FTT decided:(i) the Dells had not so agreed, meaning the FTT’s jurisdiction was not ousted;(ii) the costs were recoverable as service charges;(iii) the Dells were so estopped; and(iv) the costs were reasonable.[14]Issues (i) and (iii) were not appealed. Permission to appeal on issues (ii) and (iv) was given but the appeal on issue (ii) only was heard by the UT. Judge Elizabeth Cooke determined the appeal in the Dells’ favour and the Court of Appeal agreed with her decision that the FTT Costs were not, as a matter of construction of the Lease, recoverable as service charges.

Judge Elizabeth Cooke explained at [25] that:

“It is therefore irrelevant that the appellants for much of the course of the dispute were content with what the respondent was doing, even to the extent of asking that the respondent be legally represented at the planning committee meeting in 2018. Equally irrelevant is the fact that in 2015 the Appellants asked the respondent whether the charges were properly demanded as service charges, and the respondent took counsel’s advice before confirming that they were. The respondent does not argue that the appellants are estopped from denying that the charges are properly so demanded (the point was raised by the respondent in its Statement of case before the FTT, but the FTT made no decision on it and perhaps it was not pursued; at any rate there was no application for permission to appeal on the point). Therefore the only question before me is the construction of the lease and the appellants’ behaviour makes no difference to that. The outcome of this appeal does not rule out the possibility that the appellants are liable to pay some or all of these charges for a different reason and on a different legal basis. All that I can decide is whether or not the charges in issue are service charges under the lease.”
[16]Manco asked the Court of Appeal to remit the estoppel question to the FTT but the Court of Appeal declined to do so. The Claim in Contract The Dells’ Submissions

The Claim in Contract

[17]The Dells say that the pleaded agreement is too vague. There is no clear identification of offer, acceptance or consideration and no clear basis for assumption of personal liability, particularly for Mrs Dell.[18]The agreement asserted would impose an open-ended indemnity for undefined future litigation relating to Ms Hicks’ land which is inherently implausible and inconsistent with(i) the FTT finding that Mr Dell’s email of 31 July 2013 referring to steeling “ourselves to fight a series of claims” did not amount to such an open-ended commitment albeit in the context of an argument for the purposes of s. 27A(4) which would oust the FTT’s jurisdiction and(ii) the Court of Appeal’s observations about the unlikelihood of assuming long-term liabilities without clear wording.[19]Even if any agreement existed, it was revoked or terminated by the Dells’ email of 9 July 2014. A contract for an indefinite period must be terminable on reasonable notice, see Chitty on Contracts at 17-035.[20]The conduct of Manco and the Dells shows they treated the sums as service charges, so there can have been no intention to create any collateral contract. The Dells rely upon Chitty at 4-238, The Gudermes [1993] 1 Lloyd's Rep. 213 and Esso Petroleum Company Ltd v David [2003] EWHC 1730 (Comm). Manco invoiced the sums as service charges and argued that they were service charges throughout the previous proceedings and did not dispute the jurisdiction of the FTT on the basis that the sums were not service charges.[21]For Manco to bring this claim now is an abuse of process because the same sums were treated by Manco’s managing agent as service charges and claimed by Manco in invoices and in the proceedings as service charges as far as refusal of permission to appeal by the UKSC and the Claimant should not be permitted to “start again”. This part of the case is an abuse because(i) there is an issue estoppel by reason of the FTT’s unappealled determination that the sums were demanded as service charges,(ii) under the principles in Henderson v Henderson Manco should have disputed the FTT’s jurisdiction on the basis that the costs were not service charges and(iii) as an attack on the decisions of the UT and Court of Appeal.[22]Even if there is no res judicata, proceedings may be struck out if(i) they would be manifestly unfair to a party and(ii) would bring the administration of justice into disrepute.[23]The contract claim discloses no reasonable grounds for bringing it; it is susceptible to summary judgment under CPR 24 and/or the claim should be struck out under CPR 3.4(2)(a).

(b) Manco’s Submissions

[24]Manco alleges that all the leaseholders including the Dells agreed Manco would oppose Ms Hicks’ proposals (including by litigation) and the Dells would personally fund the costs initially in equal shares, later adjusted to accord with the common parts expenditure percentage. The agreement is said to be evidenced by a course of dealing including correspondence and conduct over a lengthy period and can only be determined by a court having read and heard all the evidence. The conduct includes the 9 July 2014 email but also includes conduct of the Dells in paying or part-paying subsequent invoices and requesting Manco to take steps in relation to Ms Hicks’ planning application in 2018. When and whether the agreement was varied from equal shares to the Lease percentages and whether the agreement was capable of being terminated and, if so, was terminated or perhaps suspended by the 9 July 2014 email and later re-affirmed also require the whole course of dealing to be considered. Manco points out that any termination or attempt to terminate could only possibly be of an agreement collateral to the Lease.[25]Manco says that the Lease service charge provisions are the mechanism for recovery but not the extent of liability; the underlying obligation arises from the separate collateral agreement. Although Manco thought the sums could be recovered as service charges and was advised by counsel to that effect, that has proved to be wrong. Manco lost on the service charge argument but the question of liability on any other basis has not been determined.[26]Whether there was offer or acceptance, consideration, intention, termination, are all trial issues. The ‘fight and fund’ contract is said to be collateral to the obligations under the lease.[27]Where there is a contract between parties which regulates one aspect of their legal relations that does not prevent the same parties from entering into a collateral contract dealing with another aspect of their legal relations. Alternative Agreement Claim The Dells’ Submissions

Alternative Agreement Claim

[28]The Dells say that this claim suffers the same defects as the primary collateral contract claim. The course of conduct is equally explicable by Manco believing the Dells were obliged to pay the costs as service charges. This part of the claim is again abusive re-litigation or is seeking to raise matters that were or should have been raised previously.[29]Accordingly this part of the claim should be struck out under CPR 3.4(2)(a) or (b) or summary judgment given.

Manco’s Submissions

[30]Manco says it is at least arguable and it is a matter that is fact-sensitive that the Dells agreed to contribute to structure related costs. The Dells expressly acknowledged a communal interest in protecting the structure of 89HP in 2016 and invited a proposed split of costs between those that were structural and those that were non-structural in 2017. The Lease/Estoppel Claim The Dells’ Submissions

The Lease/Estoppel Claim

[31]The Dells say the estoppel argument is abusive re-litigation. It seeks to circumvent the Court of Appeal and UT conclusions on contractual recoverability under the Lease by alleging a new route to the same outcome.[32]They say the point could and should have been run fully in the tribunal/appeal process; raising it now is classic Henderson v Henderson.[33]They say this part of the claim should be struck out under CPR 3.4(2)(b).[34]They also argue that the estoppel pleading is vague/incoherent and omits essential matters such as reliance and change of position.[35]Accordingly, in the alternative, this part of the claim should be struck out under CPR 3.4(2)(a) or summary judgment awarded.

Manco’s Submissions

[36]Manco accepts, as it must, that the Court of Appeal held the costs are not recoverable directly under the service charge provisions, but says the Dells are estopped from denying recoverability through the service charge machinery. They say the claim on this basis arises because of the Court of Appeal’s decision.[37]Manco denies that res judicata or Henderson abuse are applicable. Manco says that the estoppel point was raised in the FTT pleadings, there is no evidence it was abandoned and it did not need to be decided because the FTT found the charges were recoverable on construction of the Lease (so no decision on estoppel was necessary).[38]Manco also accepts, as it must, that there was no cross-appeal on this point to the UT and inevitably it did not feature as a ground of appeal in the Court of Appeal.[39]Manco says a broad merits-based approach to abuse should be taken to determining whether a party is misusing or abusing the process of the court in accordance with Johnson v Gore Wood [2002] 2 AC 1. It is not abusive to run the estoppel claim now; had the argument been pursued successfully on appeal to the UT it would have required remission for a fact-finding exercise. Manco did raise the point in its submissions to the Court of Appeal on the form of order to be made. The Court of Appeal gave no reasons for declining to follow the course it was invited to do. As a matter of causation the Dells are not being vexed twice, the estoppel argument would always need to have been ventilated on another occasion.[40]The estoppel argument is sufficiently pleaded and is inherently fact-sensitive, so must go to trial. Unjust Enrichment (Primary Case and Alternative Case) The Dells’ Submissions

Unjust Enrichment (Primary Case and Alternative Case)

[41]The Dells say an unjust enrichment claim is excluded because the Lease is the contractual regime which governs what can be charged by Manco. They rely upon what was said by Lord Goff in Pan Ocean Shipping Co Ltd v Creditcorp Ltd [1994] 1 W.L.R. 161 [164E-F]: “All this is important for present purposes, because it means that, as between shipowner and charterer, there is a contractual regime which legislates for the recovery of overpaid hire. It follows that, as a general rule, the law of restitution has no part to play in the matter; the existence of the agreed regime renders the imposition by the law of a remedy in restitution both unnecessary and inappropriate.” as preventing any restitution claim when there is an inconsistent contractual relationship between the parties. They rely also upon MacDonald v Costello [2011] EWCA Civ 930, [2012] QB 244 [23-30] as authority for the proposition that restitution claims must respect contractual regimes and the allocations of risk made under those regimes.[42]They say there is no pleaded enrichment equivalent to the sum which is claimed. The benefits of what has been spent are not shown to have objective value to the Dells at all, let alone in the sum of £424,987.25.[43]They say there is no sense in which any benefit can be “unjust”; “free acceptance” is illusory because the supposed services could not have been rejected.[44]Accordingly this part of the claim should be struck out under CPR 3.4(2)(a) or summary judgment be awarded.[45]Again this is another abuse or attempt to re-litigate matters previously litigated and should be struck out under CPR 3.4(2)(b).

Manco’s submissions

[46]Manco submits that the unjust enrichment arises from the mistake of believing the costs might be recoverable under the service charge provisions of the Lease or for failure of basis, and free acceptance. The enrichment is the services provided over years to leaseholders for their benefit and that of 89HP at the expense of Manco, which is presently reliant on shareholder loans to fund the contributions not made by the Dells.[47]The Dells plead “at all material times the clear intention of the parties was that any liability on the part of [the Dells] to make contributions to the costs of the disputes with Ms Hicks… would be subject to the service charge provisions of the Lease.” That stance tends to support a mistake or failure of basis if, as has happened, that intention turned out to be wrong.[48]Manco submits that a remedy in unjust enrichment lies where there is no contract or no contract dealing squarely with the matters concerned. Here the Lease does not deal with the FTT Costs or the New Costs Claim and is distinguishable from Pan Ocean. The situation here is also to be distinguished from Macdonald which concerned a contract made with only one of the defendants, so that the restitutionary claim against the non-contracting defendants failed.[49]Manco says that the objections such as vagueness, quantification, “at the expense of” are not apt for summary disposal. As to quantification it says that this is a case where services have been provided without leaving any marketable residue and that in such a case it is the value of the services which fall to be valued, see [5-39] of Goff & Jones (10th Edition). Discussion/Conclusions Contract/Alternative Contract

Discussion/Conclusions

[50]The Court of Appeal has concluded that the FTT Costs are not recoverable as service charges. The conclusion applies also to the New Costs Claim. When Ms Hicks first appeared on the scene neither Manco nor the Dells knew what the Court of Appeal would decide in 2023. Any costs expended by Manco in resisting or bringing claims to protect either the structure or the amenity of 89HP against Ms Hicks’ proposals would have had to be funded in some way. If the funding was not permissible via the service charge mechanism in the Lease, it is entirely plausible that the leaseholders might agree a contractual mechanism outside the Lease as the method of funding.[51]Manco alleges that an agreement was reached outside the Lease provisions. Manco pleads in support the evidence of a course of dealing over many years with key pieces of correspondence picked out for express mention. The Dells deny any agreement and plead that the parties intended that liability to make contributions to costs was to be in accordance with the service charge provisions of the Lease. They deny the agreement is supported by the evidence pleaded by the Dells and plead that other pieces of key correspondence, including the 9 July 2014 email are inconsistent with an agreement or its continued existence.[52]The question for decision is whether objectively construed what was done and said by Manco and the Dells amounted in law to the formation of a contract or a series of contracts. That both sides originally believed that the sums were recoverable via the service charge mechanism is one aspect of the factual matrix. Another aspect is that by the time of the hearing in the FTT the Dells’ stance was that the sums had never been treated as service charges and constituted an informal legal “fighting fund”. As the cases and the passage in Chitty relied upon by the Dells make plain, the question of contractual intention is a matter of fact.[53]The FTT concluded that there was no agreement to pay so as to oust its jurisdiction under section 27A. That was a finding that sums recoverable as service charges had not been admitted or agreed. It was not a finding that there was no agreement outside the Lease and so does not preclude that possibility.[54]Judge Elizabeth Cooke expressly recorded that there might be other routes to recovery of the costs. Counsel asked to advise Manco also considered that the charges might be recovered pursuant to a contract separate to the Lease.[55]The fact that the earlier proceedings proceeded on the footing that the sums were recoverable (or not) as service charges does not preclude the existence, as a matter of law, of a separate collateral agreement. Nor does it follow that advancing such a case now is necessarily abusive.[56]The critical question is whether the present claims seek to re‑litigate issues which have already been determined, or whether they depend upon distinct legal rights arising from materially different causes of action.[57]In my judgment, the contract claim (including the alternative contract case) cannot be disposed of summarily. The issues of offer, acceptance, consideration, intention to create legal relations, and termination (if any) are all matters that require a full evidential exploration at trial. The existence, scope, and duration of any agreement or agreements are inherently fact-sensitive matters and not so vague or implausible that no reasonable ground for bringing the claim is disclosed. Nor can it be said that the claim has no real prospect of success. These matters require an evaluation of the parties’ communications and conduct over time, within the context in which those matters took place. The correspondence, including the email of 9 July 2014, the subsequent payments, and the parties’ involvement in the ongoing dispute with Ms Hicks, need to be analysed at trial.[58]However, I do consider that Manco needs to amend its pleading to provide a more detailed account of the alleged chronology of the agreement. Its formation, its terms (including term as to termination), and any variation, confirmation, or termination of it from time to time.[59]As to abuse of process, I do not accept that the contract claim is, without more, an impermissible attempt to re-open the conclusions of the Court of Appeal. The earlier litigation determined the recoverability of the disputed costs under the service charge provisions of the Lease. It did not determine whether the Dells may be liable on some separate contractual basis. That possibility was expressly recognised by the Upper Tribunal.[60]Accordingly, the application to strike out or for summary judgment in respect of the primary and alternative contract claims is refused, subject to an amended pleading being produced addressing the deficiencies identified above.

Estoppel

[61]In my judgment the position is different in relation to the estoppel claim. The essence of this claim is that the Defendants are precluded from denying that the costs are recoverable through the service charge machinery, notwithstanding the decision of the Court of Appeal.[62]That seeks to achieve indirectly what the Claimant has failed to achieve directly. The question whether the disputed sums were recoverable as service charges has been conclusively determined. To permit an estoppel case to proceed which depends upon treating those same sums as recoverable via the service charge mechanism would risk undermining that final determination.[63]In addition, the estoppel case could and should have been pursued (if at all) in the earlier proceedings. It was raised before the FTT but not pursued on appeal. No cross-appeal was brought, and the point was not preserved. In those circumstances, the raising of it now falls squarely within the principle in Henderson v Henderson.[64]I also accept that the estoppel case, as pleaded, lacks the necessary clarity and particularity, particularly as to the elements of reliance and detriment.[65]In those circumstances, I conclude that the estoppel claim is an abuse of process and should be struck out pursuant to CPR 3.4(2)(b). In the alternative, it discloses no reasonable grounds for bringing the claim.

Unjust Enrichment

[66]The unjust enrichment claim is different. It is advanced on the basis of mistake, failure of basis, and/or free acceptance, see the analysis of the authorities in Rogers v Wills [2025] 1 WLR 4995 at [183-236].[67]It is well established that a claim in unjust enrichment may, in principle, be available where a party has incurred expenditure on the basis of a mistaken belief as to legal entitlement. Manco’s case, that it proceeded on the basis that the costs were recoverable via the service charge provisions and that this belief has proved to be mistaken, is not fanciful.[68]The difficulties for Manco lie in demonstrating(i) that the Dells were enriched,(ii) that such enrichment is measurable in monetary terms, and(iii) that it would be unjust for them to retain that benefit without payment. These are not insignificant hurdles.[69]However, they are not matters which can properly be resolved on an application of this kind. The questions of benefit, valuation, and unjustness are fact-sensitive and may depend upon factual evidence.[70]I consider, however, that Manco needs to amend its pleading to clarify its case on enrichment, its measurement and injustice.[71]Nor do I accept that the existence of the Lease necessarily excludes a restitutionary claim in all circumstances. The Lease regulates service charges, but the present claim proceeds on the footing that that expenditure falls outside that contractual regime. I do not accept therefore the claim offends against Lord Goff’s statement in Pan Ocean. Whether restitution is excluded in the present circumstances is a matter requiring careful analysis at trial.[72]I therefore decline to strike out or give summary judgment on the unjust enrichment claim.

Summary Conclusions

[73]For the reasons set out above:(i) The application to strike out or for summary judgment in respect of the primary and alternative contract claims is refused, subject to the production of Amended Particulars of Claim providing more granular detail of the agreement or agreements as to funding in existence from time to time;(ii) The estoppel claim is struck out pursuant to CPR 3.4(2)(b) (and alternatively 3.4(2)(a));(iii) The application in respect of the unjust enrichment claims is refused, subject to the production of Amended Particulars of Claim providing further detail on enrichment and its measurement and injustice.[74]The matter will proceed to trial on the surviving causes of action. Directions will be given for the future conduct of the case in due course.