“(2) The Upper Tribunal – (a) may (but need not) set aside the decision of the First-tier Tribunal, and (b) (if it does) must either – (i) remit the case to the First-tier Tribunal with directions for its reconsideration, or (ii) re-make the decision (3) In acting under sub-section (2)(b)(i), the Upper Tribunal may also – (a) direct that the members of the First-tier Tribunal who are chosen to reconsider the case are not to be the same as those who made the decision that has been set aside; (b) give procedural directions in connection with the reconsideration of the case by the First-tier Tribunal.”
“7. Having subsequently considered this argument, the Tribunal considers that it is possible, in the light of the rule in Henderson v Henderson as explained in Johnson v Gore Wood [2002] 2 A.C. 1. that raising this issue in the current proceedings is an abuse of process as it could have been raised at the previous tribunal. A copy of the decision in Johnson v Gore Wood & Co is attached to these further directions.”
“… the Tribunal will of course note that the previous Tribunal members (necessarily including at least two experienced property professionals) did not identify the arguments themselves either (something which was within their power to raise of their own initiative in much the same way as this Tribunal has raised this abuse of process issue of its own initiative).”
“In the present case, counsel were content to accept, subject to one small adjustment proposed by Mr Spink, the summary of the relevant principles in paragraph 52 of my judgment in Benchdollar , after a review of the relevant authorities….. The summary is as follows: “…. the principles applicable to the assertion of an estoppel by convention arising out of non-contractual dealings, to be derived from Keen v. Holland , and the cases which comment upon it, are as follows: i) It is not enough that the common assumption upon which the estoppel is based is merely understood by the parties in the same way. It must be expressly shared between them. ii) The expression of the common assumption by the party alleged to be estopped must be such that he may properly be said to have assumed some element of responsibility for it, in the sense of conveying to the other party an understanding that he expected the other party to rely upon it. iii) The person alleging the estoppel must in fact have relied upon the common assumption, to a sufficient extent, rather than merely upon his own independent view of the matter. iv) That reliance must have occurred in connection with some subsequent mutual dealing between the parties. v) Some detriment must thereby have been suffered by the person alleging the estoppel, or benefit thereby have been conferred upon the person alleged to be estopped, sufficient to make it unjust or unconscionable for the latter to assert the true legal (or factual) position.”
"Since the FTT never actually considered this issue and since this appeal proceeds by way of a review of their decision it would be quite wrong for the issue to be now considered as part of this appeal. Lengthy submissions and evidence would be required."