BARRY O’BRIEN v GLENTAMER MANSIONS MANAGEMENT CO LTD LRA/58/2003

UPPER TRIBUNAL
LANDS CHAMBER
LRA/58/2003Case No LRA/58/2003
Between
BARRY O’BRIENApplicantGLENTAMER MANSIONS MANAGEMENT CO LTDRespondent
Before
N J Rose FRICSVenue 48/49 Chancery Lane, London WC2A 1JRDate 8 March 2004Hearing 2 March 2004Property: 112-118 Glentamer Mansions,, Kingston Road, New Malden,, Surrey KT3 3NDCatchwords: LEASEHOLD ENFRANCHISEMENT – claim by former landlord for compensation for loss resulting from collective enfranchisement – price determined by County Court upheld by Court of Appeal – Leasehold Valuation Tribunal decided it had no jurisdiction – appeal dismissed – Leasehold Reform, Housing and Urban Development Act 1993, Schedule 6, paragraph 5.
[1]This is an appeal by Mr Barry O’Brien, the former freeholder of a block of flats known as 112-118 Glentamer Mansions, Kingston Road, New Malden, Surrey, KT3 3ND (“the appeal property”) against a decision by the Leasehold Valuation Tribunal for the London Rent Assessment Panel (“the LVT”). Mr O’Brien had applied to the LVT to determine the compensation payable under Schedule 6, paragraph 5 of the Leasehold Reform, Housing and Urban Development Act, 1993 (“the Act”) for loss or damage resulting from the acquisition of his interest in the appeal property by the nominee purchaser, Glentamer Mansions Management Co Ltd (“the respondent”). The LVT decided that it had no jurisdiction to consider the matter and dismissed the application.[2]The appeal was conducted under the simplified procedure (rule 28, Lands Tribunal Rules 1996). Mr O’Brien appeared in person. The respondent was represented, with permission of the Tribunal, by one of its directors, Mr P Eade.[3]There is a lengthy background to this appeal. It is as follows. The participating tenants of the appeal property served a notice to acquire the freehold pursuant to s.13 of the Act. The proposed purchase price was £1,100. No counter-notice was served by the freeholder as required by s.21 of the Act. The respondent therefore applied to the Kingston upon Thames County Court, pursuant to s.25 of the Act, for an order determining the terms of acquisition.[4]Directions were given for evidence by affidavit and for discovery. The respondent filed affidavit evidence from the tenants and served a list of documents. Mr O’Brien filed no evidence and took no part in the proceedings. The trial was set down for hearing on 17 March 1998.[5]A note of the judgment of His Honour

Judge Cook contains the following summary of what happened thereafter:

“The originating summons was issued in the Kingston County Court and listed for hearing there on 17 March but, either one or two days prior to the hearing, the parties were notified by telephone that the venue had been changed to Guildford. During the course of the afternoon of 16 March Mr O’Brien telephoned and informed a member of the court staff that he was not ‘prepared to travel to Guildford’. When I was informed of this I caused Miss Lipscombe to telephone Mr O’Brien that afternoon and inform him that the fact that he was not prepared to travel to Guildford was not a sufficient reason for granting an adjournment and that if he did not attend I would proceed with the hearing in his absence. When the court staff arrived on 17 March there was a fax message awaiting timed at 5.38 pm on 16 March confirming that Mr O’Brien was not ‘prepared to travel to Guildford at such short notice’ and that he required the matter to heard in Kingston. 2 On my being informed of this I caused a reply to be faxed prior to 10.00 am confirming that he had been informed by telephone on the previous day that the matter would proceed in his absence.”
[6]Mr O’Brien having failed to appear, Judge Cook considered the case and concluded that the company’s case was justified. He ordered that the application for an adjournment should be refused and that the applicant should acquire the freehold at a price of £1,100. On 1 April 1998 Mr O’Brien applied to set aside that judgment. That application came back before Judge Cook on 23 July. He dismissed the application with costs on 24 July.[7]Mr O’Brien, who had been adjudged bankrupt on 28 May 1998, then applied to the Court of Appeal for leave to appeal against the order of Judge Cook. Aldous LJ, with whom Otton LJ agreed, dismissed the application on 15 March 1999. The description of the background to the current appeal, in paragraphs 3 to 6 above, has been taken from the judgment of Aldous LJ. That judgment also contained the following observation:
“Mr O’Brien did not wish to sell. He has made it clear before us that he still does not wish to sell. He failed to serve a counter-notice and, having listened to him, I believe that that was intentional because he did not wish to sell.”
[8]The respondent had previously applied to the LVT for approval of the draft form of transfer in accordance with s.27(3) of the Act. The LVT heard the application on 9 February 1999 and issued its decision on 29 April 1999. It said:
“for the reversioners (himself and Mr Arthur Reginald Unwin Jones) Mr O’Brien indicated that notwithstanding the entry on the Proprietorship Register he alone was the freeholder but had no further comment to make on the form of transfer since he did not wish to sell the property, did not recognise the Orders of the County Court nor the jurisdiction of the Tribunal, since the provisions of the Act were in contravention of the European Convention on Human Rights and Fundamental Freedoms.”
[9]The LVT approved the form of transfer that had been submitted on behalf of the respondent. On 13 May 1999 Mr O’Brien appealed to this Tribunal against the LVT’s decision. In his notice of appeal Mr O’Brien gave the following grounds:
“In this matter there are probably no grounds. I wish only that the Tribunal order a ‘stay’ of the sale pending a decision from Strasbourg. I am in the early stages of this matter. I enclose a judgment of Otton and Aldous LJJ.”
[10]This Tribunal subsequently became aware of Mr O’Brien’s bankruptcy, which meant that he could not engage in litigation. On 25 January 2000 the Registrar wrote to Mr Colin Haig of Messrs Baker Tilly, Mr O’Brien’s trustee in bankruptcy, asking whether he intended to pursue the matter. The Registrar then wrote to Mr Haig’s solicitors on 24 March 2000 as follows:
“As no statement of case has been received nor a formal application made for an extension of time within which to lodge the documents referred to in my earlier 3 correspondence, please note that, unless you communicate with this office by way of either of the two options stated above within the next 10 days, the case will be appointed before the Registrar for CAUSE TO BE SHOWN, pursuant to rule 46(2) of the Lands Tribunal Rules 1996.”
[11]A hearing took place before the Registrar on 2 May 2000. By then a statement of case had still not been filed on behalf of the appellant and Mr Haig did not attend. Accordingly, the Registrar ordered that the appeal be struck out.[12]Mr O’Brien served notice of appeal against the Registrar’s decision. On 19 June 2000 the Registrar wrote to advise Mr O’Brien that “The matter was referred to the President and he has indicated that, as an undischarged bankrupt, you have no locus standi in this appeal. In consequence your purported appeal cannot be entertained.”[13]Following an application by the respondent to the Newcastle-upon-Tyne District Registry, His Honour Judge McGonigal, sitting as a deputy High Court Judge at Leeds, made an Order on 5 December 2001. It included the following declarations: “2. The transfer dated 7 June 1999 (the “transfer”) executed by HH Judge Cook on behalf of Mr O’Brien and Mr Jones transferring the freehold interest in Glentamer Mansions, 112-118 Kingston Road (Title No.SGL297268; the “block”) to the claimant (incorrectly described in the transfer as Glentamer Mansions Management Co Ltd) is not void and should be registered with the effect that Glentamer Management Co Ltd (incorporated on 24 October 1996 with Company No.3268466) should be registered as freehold proprietor of the block …[5]The transfer and the vesting order made by HHJ Cook on 30 October 1998 in proceedings in the Kingston upon Thames County Court No.KT700811 (sitting at Guildford) are ratified pursuant to section 284(1) of the Insolvency Act 1986.”[14]Mr O’Brien told me that he had been discharged from bankruptcy on 28 May 2002, but that his estate remains vested in his trustee.[15]Mr O’Brien made a number of points in support of his appeal, and I would summarise them as follows. The original notice to acquire the freehold was invalid, because the price stated was unrealistically low. He was entitled to the value of flat 114, which was let to a statutory tenant, being damage to other property held by him. It was absurd and contrary to natural justice that he should be deprived of a property worth a minimum of £35/£40,000 and also have to pay an outstanding charge of over £20,000 to the local authority. The rent from flat 114 should be paid to the local authority to pay off the charge. The fact that he had not asked for flat 114 to be leased back to him was irrelevant, since he could not be compelled to 4 take such a lease. The reference in paragraph 5(2)(a) of Schedule 6 to “other property” had a wide meaning. The transfer of the freehold interest had not taken place.[16]Mr Eade replied to some of the points made by Mr O’Brien, although he did not accept that they were relevant. I do not think that they are relevant. Mr O’Brien’s claim is made under paragraph 5 of Schedule 6 of the Act. Schedule 6 defines the basis on which the purchase price payable by the nominee purchaser is to be calculated. That purchase price was fixed by the County Court at £1,100. Mr O’Brien applied to the Court of Appeal for leave to appeal against the County Court’s judgment. Leave was refused and the purchase price has therefore been finally determined. Accordingly, the LVT was right to conclude that it had no jurisdiction to consider the application and the appeal fails.[17]I make no order as to costs. Dated 8 March 2004 (Signed) N J Rose FRICS 5