Meller House, Chroma Mansions, Seasons House, Patina Mansions and Kaleidscope House, East Village, London E20: LON/00BB/HYI/2022/0018-22 LON/00BB/HYI/2022/0018-22
FIRST-TIER TRIBUNAL
PROPERTY CHAMBER (RESIDENTIAL PROPERTY)
Case No LON/00BB/HYI/2022/0018-22Date 19 January 2024
REASONS
[1]The terms of the order were largely agreed between the parties.[2]The main area of disagreement concern the conditions in paragraph 5, which Triathlon opposes in principle and in respect of which, in the alternative, it suggests different conditions from those requested by SVDP/Get Living. We are satisfied that, in principle, it is appropriate for the order to require that funds received by EVML be reimbursed to the Building Safety Fund, since the reimbursement of public funds was part of the justification for the making of the order. It is neither necessary nor appropriate, however, for the order to vary the terms of the Grant Funding Agreements which already regulate EVML’s obligations to the Fund and we have therefore preferred the conditions proposed by Triathlon and supported by EVML. The original draft recital I, which was included to explain SVDP/Get Living’s preferred condition, is redundant.[3]Condition 5(c), proposed by SVDP/Get Living is also appropriate since, in principle, EVML should not be entitled to double recovery and should be required to reimburse monies received through successful third party claims. To protect EVML’s position we have postponed the date of reimbursement until after third party proceedings are finally disposed of. At EVML’s request we have included language to mirror the obligations in the Grant Funding Agreement.[4]The parties’ inability to agree a procedure for payment which meets both their needs, and their failure to propose language to bridge the gap despite acknowledging that a compromise is available, is disappointing. We have filled the gap in paragraphs 4(b) and 4(c) by introducing a requirement that EVML should forward claims for payment to SVDP/Get Living when they are received. SVDP/Get Living will have notice of the requirement to make a payment and of the maximum sum required (although not of the final amount) 12 days earlier than the parties’ proposal, which will allow them ample time to make arrangements for payment. On that basis 5 days’ notice of the sum to be paid (rather than 5 working days) is sufficient.[5]There is no good reason to stay the obligation to reimburse sums already paid by Triathlon or EVML or which may not be covered by the Grant Funding Agreement. On the other hand, there is less urgency in the reimbursement of costs which are already being met from funds provided by the Building Safety Fund, and full reimbursement before the final determination of any appeals is likely to cause inconvenience and uncertainty over the consequences for continued funding. The better course, which we are satisfied is in accordance with he Tribunal’s overriding objective of dealing with cases fairly and justly, is therefore to stay reimbursement of the sums to be paid under paragraphs 4(a) and 4(b) only. If EVML finds itself with insufficient funds, it should request payment from SVDP/Get Living or, if agreement cannot be reached, it may apply to the Tribunal for a partial or complete relaxation of the stay.[6]As for permission to appeal, this is the first remediation contribution order under Part 5 of the Building Safety Act 2022 and it involves a substantial sum of money. It is appropriate, because of the importance of the issues to the parties as well as their wider importance, that the Tribunal’s decision should be the subject of consideration at appellate level. Grounds 2 and 3 of the grounds of appeal raise very important points of principle about the scope of remediation contribution orders and are arguable. Ground 1 challenges the Tribunal’s exercise of its discretion by mischaracterising our reasoning and suggesting that it involved the adoption of a presumption in favour of making an order. That was not the Tribunal’s reasoning, as our decision sought to explain. Nevertheless, given the importance of the issues and the desirability of obtaining further guidance on what circumstances may make it just and equitable to make a remediation contribution order, we also grant permission to appeal on ground 1.[7]When these references were transferred from the First-tier Tribunal to the Upper Tribunal under rule 25 of the FTT Rules the intention of the parties and of the Tribunal was that the need for an appeal to the Upper Tribunal would be avoided by the transfer, and that any subsequent appeal would be directly to the Court of Appeal. That remained the expectation of the Upper Tribunal and of the parties until after the hearing commenced on 13 November when, as explained in paragraph [45] to [49] of the decision, it was first appreciated that only the First-tier Tribunal has the required jurisdiction to make a remediation contribution order at first instance.[8]The Tribunal would wish the parties so far as possible to be in the position they would have been in if their expectations of the route of appeal had not been de-railed at the eleventh hour. The Tribunal has suggested, and the parties have agreed, that that outcome could be achieved by the parties jointly inviting the Upper Tribunal to dismiss the appeal and to grant permission to appeal to the Court of Appeal without itself engaging with the substance of the arguments.[9]The overriding objective of the Upper Tribunal, to deal with cases fairly and justly, specifically includes a duty to avoid delay, to seek flexibility in its proceedings, and to deal with cases in ways which are proportionate to their importance and complexity. In the unusual circumstances of these references those considerations appear to us to support the course we have suggested. We are not in a position to bind the Upper Tribunal, but we hope that it will be willing to facilitate what would, in effect, be a “leapfrog” appeal to the Court of Appeal to enable it to consider these cases at the earliest opportunity. The Court of Appeal is already seized of one appeal under the 2022 Act, in Adriatic Land 5 Ltd v Hippersley Points Lessees [2023] UKUT 271 (LC), which the Tribunal followed when determining the issue which forms the subject of ground 2 of the application for permission, and it may be convenient to it to consider the issues in these references at the same time. Mr Justice Edwin Johnson Martin Rodger KC Chamber President, Deputy Chamber President Upper Tribunal, Lands Chamber Upper Tribunal, Lands Chamber 5 March 2024