Chowdhury v Bramerton Management Company Ltd [2014] UKUT 0260 (LC)
IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE
UT Neutral citation number: [2014] UKUT 0260 (LC)Venue LEASEHOLD VALUATION TRIBUNAL FOR THE, LONDON RENT ASSESSMENT PANEL
Between
ChowdhuryBramerton Management Company LtdBefore Martin Rodger QC, Deputy PresidentThe Appellant in personMiss Amanda Gourlay instructed by Brady solicitors for the Respondent
[24]“24. We are not greatly attracted by the suggestion that a Judge who has given inadequate reasons should be invited to have a second bite at the cherry. But we are much less attracted at the prospect of expensive appellate proceedings on the ground of lack of reasons. Where the Judge who has heard the evidence has based a rational decision on it, the successful party will suffer an injustice if that decision is appealed, let alone set aside, simply because the Judge has not included in his judgment adequate reasons for his decision. The appellate court will not be in as good a position to substitute its decision, should it decide that this course is viable, while an appeal followed by a re-hearing will involve a hideous waste of costs.[25]Accordingly, we recommend the following course. If an application for permission to appeal on the ground of lack of reasons is made to the trial Judge, the Judge should consider whether his judgment is defective for lack of reasons, adjourning for that purpose should he find this necessary. If he concludes that it is, he should set out to remedy the defect by the provision of additional reasons refusing permission to appeal on the basis that he has adopted that course. If he concludes that he has given adequate reasons, he will no doubt refuse permission to appeal. If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court that the application is well founded, it should consider adjourning the application and remitting the case to the trial Judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings. ”19. The power to give further reasons must now also be considered in light of the jurisdiction conferred on first-tier tribunals by section 9, Tribunals, Courts and Enforcement Act 2007 to review a decision and to take consequential steps including to “amend reasons given for the decision”. Effect is given to that jurisdiction by rule 53 of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013, which did not apply at the time of the LVT’s refusal of permission to appeal in this case.20. It is not necessary for me to consider in this decision the ambit of a first-tier tribunal’s ability legitimately to respond to an application for permission to appeal by providing further reasons for its decision. I have reached that conclusion because I am satisfied that, even if the LVT was not entitled to supplement its reasons as it did, and although its original decision was defective and might otherwise require to be remitted to a differently constituted tribunal for redetermination, the inevitable outcome of such redetermination would be a conclusion, once again, that the service charges claimed in the county court proceedings were due and payable by the appellant at the date on which the proceedings were commenced.21. The first point of note is that the county court proceedings which gave rise to the application to the LVT were commenced by the issuing of a claim form on 6 January 2012 asserting the appellant’s liability to pay service charges which had fallen due before that date. Secondly, the LVT’s conclusion that the sums claimed were reasonably incurred and recoverable in full is challenged only on the grounds that the necessary prior notice of the amount payable had not been given.22. The appellant acknowledges that the service charge statement of account dated 11 November 2011 was addressed to her at the Premises and had been delivered there, although that she did not become aware of it until early in January 2012 because she was abroad. In those circumstances only two questions would fall to be considered if the proceedings were remitted for reconsideration: first, whether the service charge statement of account was sufficient to trigger the appellant’s liability under clause 4(4) of the Lease to pay the charges recorded in it; and secondly, if so, whether that liability had been triggered by the date the proceedings were commenced.23. As to the first question, the appellant pointed out that the statement of account was not a demand. That is not an attractive argument since although the word “demand” was not used, the statement identified the sums which were “due”, aggregated them to produce a “balance to pay” and provided details of how payments could be made. In any event, clause 4(4) of the lease does not render the quarterly service charge instalments payable on demand and provides only that the lessor should give notice in writing to the lessee prior to any quarter day of the yearly sum to be paid by those instalments. The statement of account of 11 November 2011 clearly, although belatedly, performs those functions.24. If it is assumed in the appellant’s favour (although this is disputed by the respondent) that she received no statement of account or other notice of the quarterly charges due from her during 2011 until 11 November 2011, what was the effect of the belated service of the statement of account of that date? In my judgment the effect of late service of the statement of account was to provide the appellant with notice in writing of the yearly sum required to be paid by her. 25. The lease does not deal expressly with the consequences of late service of notice of the quarterly service charge instalments, but those consequences are nonetheless a matter of interpretation of the lease itself. The general rule is that time is not of the essence of procedural steps under a contract relating to land. It would nonetheless be arguable that late service of notice of the service charge contributions would not create a liability immediately to discharge the instalments which would have been payable on the three previous quarters had notice been given at the appropriate time. What is unarguable and was not suggested by the appellant, was that a failure to give notice would relieve the appellant of her liability to pay the quarterly service charge instalments at all. 26. The possible consequences of late service of notice of the sum claimed on account seem to me to be either that the arrears might not become due and payable until the next quarter day (by analogy with the reasoning in South Tottenham Land Securities Ltd v R & A Millet (Shops) Ltd [1984] 1WLR 710 (a rent review case), or that the accumulated arrears might not become due until a reasonable time after notification of the sum claimed. Of these alternatives the language of the lease seems to me to point more strongly to the first, because notice was required to be given “prior to any quarter day” in order to trigger a liability to pay the sum notified on that quarter day. Assuming that approach to be correct, the three accumulated quarterly payments would have become payable on 25 December 2011 at the same time as the instalment falling due for the first time on that date. If, alternatively, the instalments were only to become payable after the lapse of a reasonable period, it nonetheless seems to me that the period of approximately seven weeks between the service of the statement of account and the commencement of the proceedings meant that the sums recorded in the statement of account had undoubtedly become due by the time the claim form was issued. 27. As I have already said, the appellant does not challenge her liability in principle to pay the service charges demanded of her, provided they have been properly demanded. The LVT considered the charges and subjected the respondent to a close enquiry as a result of which it concluded that all of the charges were reasonably incurred and provided for services of a reasonable quality. No purpose would therefore be served by remitting the matter for further consideration at first-tier level. The second ground of appeal and disposal 28. The conclusions I have reached on the appellant’s principal ground of appeal make it unnecessary for me to consider the allegations she made in her application for permission to appeal that the LVT had refused to allow her adequate time to consider the bundle of documents served on her in advance of the hearing, and refused to contemplate the possibility of an adjournment. It is common ground that the documents were provided to the appellant at least a week before the hearing. While they may not have included all of the documents which the appellant wished to see (which, ultimately, she was shown on the day of the hearing) they seem to have included sufficient material to establish the respondent’s entitlement to the service charges payable on account for 2011. The appellant has filed a witness statement of Mr Cliff Ryan, a colleague who accompanied her to the hearing, which corroborates the allegations made in her statement of case. The evidence served on behalf of the respondent is to the opposite effect and suggests that the appellant was offered the opportunity of an adjournment and declined it. Nor do contemporaneous notes taken by the respondent’s solicitor support the allegations made by the appellant (not all of which are repeated in her statement of case for the appeal notwithstanding that they featured in her application for permission to appeal). 29. In the circumstances it has not been necessary for me to investigate the manner in which the LVT conducted the proceedings. I would have been reluctant in any event to embark on such an investigation as the LVT’s own contemporaneous record of the hearing was not available. The proceedings of first-tier tribunals (in the Property Chamber at least) are not routinely recorded but the members of the tribunal take a note. Where disputed allegations are made concerning the conduct of a hearing these contemporaneous notes should provide an important point of reference for the Tribunal and it is important that in such a case the parties take steps to obtain them. 30. For these reasons the appeal is dismissed. 9 June 2014 Martin Rodger QC Deputy President