CAWSAND FORT MANAGEMENT CO LTD V STAFFORD & OTHERS [2005] EWCA Civ 982
FACTS:-
This was a renewed application for permission to appeal from a decision of the Lands Tribunal. That decision was on an appeal from an order made by the Leasehold Valuation Tribunal for the Southern Rent Assessment Panel under section 24 of the Landlord and Tenant Act 1987. Applications under section 24 were made by a number of those individuals who were tenants of residential units within a group of buildings known as Cawsand Fort. The issue was whether the Leasehold Valuation Tribunal (“LVT”) went beyond its powers in purporting to appoint a manager of the whole of the property known as "The Fort".
JUDGMENT:-
Lord Justice Chadwick said that there was one issue in the appeal - whether it was within the power of the LVT to include in the management order land in the ownership of the appellant that consisted neither of residential buildings nor the curtilages of such buildings. There was no dispute that the amenity land and the rights of way over parts of the fort that owners and lessees of individual residential properties enjoyed under their respective titles were outside the curtilages of the buildings. The freehold owner sought to appeal from that decision. It was said that the Leasehold Valuation Tribunal, and the Lands Tribunal on appeal, misunderstood the extent of the power conferred by section 24 of the 1987 Act. The power was to appoint a manager to carry out, in relation to any premises to which Part 2 of the Act applied, such functions in connection with the management of those premises as the tribunal thought fit.
The application for permission to appeal to the Court of Appeal was refused by Richards LJ after consideration on the papers. He thought that it might be arguable that the Leasehold Valuation Tribunal's order went too wide but he thought that the practical implications for the parties were very limited in this case and that the wider implications were difficult to assess. He was not satisfied that the appeal would raise an important point of principle or practice or that there was some other compelling reason for the Court of Appeal to entertain it.
Chadwick LJ said that it was clear that Richards LJ was applying the test relevant to applications for permission to bring a second appeal prescribed by CPR 52.13. However the present application did not fall within CPR 52.13. The rule applied to an appeal to this Court from the decision of a County Court or the High Court which was itself made on appeal. Although an appeal from a decision of the Lands Tribunal made on appeal from Leasehold Valuation Tribunal may be seen, broadly, as a second appeal, it was not a second appeal within CPR 52.13: for the obvious reason that the Lands Tribunal was neither a County Court nor the High Court.
Nevertheless, there were good reasons why, in an appropriate case, this Court should apply an approach similar to that prescribed by CPR 52.13 when considering whether to grant permission to appeal in this context of appeals of this nature: that is to say, appeals from a tribunal which had, itself, been seized of the matter in an appellate capacity. Those reasons were explained by Hale LJ in Cooke v The Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279. She pointed out, at paragraph 15 of her judgment, that where the issue arose in a highly specialised area of law and in circumstances where there was an independent two-tier appellate structure provided by the relevant statutory scheme, the Court of Appeal, which was unlikely to have expertise equivalent to that of the specialist appellate tribunal, should be cautious before seeking to review or interfere with its decision. In Napp Pharmaceutical Holdings Limited v The Director General of Fair Trading [2002] EWCA Civ 796, [2002] 4 All ER at 376, Brooke LJ expressed the hope that the observations of Hale LJ on this point might find their way into the White Book: the practice was now noted at 52.3.10.
In the circumstances of the present case, it was right to grant permission. First, as Richards LJ himself observed, the point was arguable: this was not a case in which it could be said that an appeal would have no real prospect of success. Second, the point raised a short question of construction in relation to statutory provision. The expertise of the Lands Tribunal was not in doubt; but the question raised by an appeal would not, as it seems to me, require specialist expertise. Chadwick LJ would contrast other matters which came before the Lands Tribunal -- for example matters relating to valuation -- which did require specialist expertise. Thirdly it was necessary to balance the caution advised by Hale LJ, in the context of a matter involving rights as between the citizen and the State with a no less relevant caution which should be observed before parties are deprived of rights in what was essentially private litigation. Rights of appeal were confirmed by statute. Statute had imposed limitations on those rights; in particular the limitations in section 55(1) and (4) of the Access to Justice Act 1999. Those limitations had been given effect by the rule-making body responsible for the Civil Procedure Rules; but that body had not, for whatever reason, thought it right to extend the limitation in relation to second appeals -- which was enshrined in CPR 52.13 -- to appeals from tribunals.
Chadwick LJ would grant permission in this case.
Lord Justice Carnwath agreed.
FACTS:-
This was a renewed application for permission to appeal from a decision of the Lands Tribunal. That decision was on an appeal from an order made by the Leasehold Valuation Tribunal for the Southern Rent Assessment Panel under section 24 of the Landlord and Tenant Act 1987. Applications under section 24 were made by a number of those individuals who were tenants of residential units within a group of buildings known as Cawsand Fort. The issue was whether the Leasehold Valuation Tribunal (“LVT”) went beyond its powers in purporting to appoint a manager of the whole of the property known as "The Fort".
JUDGMENT:-
Lord Justice Chadwick said that there was one issue in the appeal - whether it was within the power of the LVT to include in the management order land in the ownership of the appellant that consisted neither of residential buildings nor the curtilages of such buildings. There was no dispute that the amenity land and the rights of way over parts of the fort that owners and lessees of individual residential properties enjoyed under their respective titles were outside the curtilages of the buildings. The freehold owner sought to appeal from that decision. It was said that the Leasehold Valuation Tribunal, and the Lands Tribunal on appeal, misunderstood the extent of the power conferred by section 24 of the 1987 Act. The power was to appoint a manager to carry out, in relation to any premises to which Part 2 of the Act applied, such functions in connection with the management of those premises as the tribunal thought fit.
The application for permission to appeal to the Court of Appeal was refused by Richards LJ after consideration on the papers. He thought that it might be arguable that the Leasehold Valuation Tribunal's order went too wide but he thought that the practical implications for the parties were very limited in this case and that the wider implications were difficult to assess. He was not satisfied that the appeal would raise an important point of principle or practice or that there was some other compelling reason for the Court of Appeal to entertain it.
Chadwick LJ said that it was clear that Richards LJ was applying the test relevant to applications for permission to bring a second appeal prescribed by CPR 52.13. However the present application did not fall within CPR 52.13. The rule applied to an appeal to this Court from the decision of a County Court or the High Court which was itself made on appeal. Although an appeal from a decision of the Lands Tribunal made on appeal from Leasehold Valuation Tribunal may be seen, broadly, as a second appeal, it was not a second appeal within CPR 52.13: for the obvious reason that the Lands Tribunal was neither a County Court nor the High Court.
Nevertheless, there were good reasons why, in an appropriate case, this Court should apply an approach similar to that prescribed by CPR 52.13 when considering whether to grant permission to appeal in this context of appeals of this nature: that is to say, appeals from a tribunal which had, itself, been seized of the matter in an appellate capacity. Those reasons were explained by Hale LJ in Cooke v The Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279. She pointed out, at paragraph 15 of her judgment, that where the issue arose in a highly specialised area of law and in circumstances where there was an independent two-tier appellate structure provided by the relevant statutory scheme, the Court of Appeal, which was unlikely to have expertise equivalent to that of the specialist appellate tribunal, should be cautious before seeking to review or interfere with its decision. In Napp Pharmaceutical Holdings Limited v The Director General of Fair Trading [2002] EWCA Civ 796, [2002] 4 All ER at 376, Brooke LJ expressed the hope that the observations of Hale LJ on this point might find their way into the White Book: the practice was now noted at 52.3.10.
In the circumstances of the present case, it was right to grant permission. First, as Richards LJ himself observed, the point was arguable: this was not a case in which it could be said that an appeal would have no real prospect of success. Second, the point raised a short question of construction in relation to statutory provision. The expertise of the Lands Tribunal was not in doubt; but the question raised by an appeal would not, as it seems to me, require specialist expertise. Chadwick LJ would contrast other matters which came before the Lands Tribunal -- for example matters relating to valuation -- which did require specialist expertise. Thirdly it was necessary to balance the caution advised by Hale LJ, in the context of a matter involving rights as between the citizen and the State with a no less relevant caution which should be observed before parties are deprived of rights in what was essentially private litigation. Rights of appeal were confirmed by statute. Statute had imposed limitations on those rights; in particular the limitations in section 55(1) and (4) of the Access to Justice Act 1999. Those limitations had been given effect by the rule-making body responsible for the Civil Procedure Rules; but that body had not, for whatever reason, thought it right to extend the limitation in relation to second appeals -- which was enshrined in CPR 52.13 -- to appeals from tribunals.
Chadwick LJ would grant permission in this case.
Lord Justice Carnwath agreed.