Fisher v Howard De Walden Estate Ltd RAP/19/2013 is that rare thing – a citeable permission to appeal decision from the UT(LC) (remembering that in Re Bradmoss [2012] UKUT 3 (LC), the UT(LC) had disapproved of reliance on permission decisions, see our brief note, here).

It concerns the approach to be taken to permission to appeal applications in the UT(LC) in respect of FTT matters in England.

Before the introduction of the FTT, the various tribunals which were subsumed into the FTT had a range of appeal rights. The RAC (fair rents) appealed to the High Court, “on a point of law” (s.11, Tribunals and Inquiries Act 1992). The LVT appealed to the LT/UT(LC) (s.175, CLRA 2002) but with no such restrictions (although, in practice, the UT(LC) Practice Direction imposed some limitations on when permission to appeal would be granted, see para.4.3; the LT version was in a similar form)

One of the side-effects of the introducing a new unified FTT was that appeal routes were, on the face of it, unified. All appeals were to the UT(LC) and under s.11, Tribunal Courts and Enforcement Act 2007, providing for an appeal “on any point of law”. But, as the UT(LC) points out in this case, that isn’t quite right. Section 176B, CLRA 2002 preserved a right to appeal in respect of cases under specific Acts (CLRA 2002; LTA 1985; LTA 1987; LRHUDA 1993; HA 1996) which was not restricted to “points of law” (s.231C, HA 2004 made similarly broad provision for appeals under the HA 2004). In effect, if there existed a broader right pre-FTT, then the broader right remained.

The UT(LC) Practice Direction had not been updated to reflect this (but would be in due course). It was important therefore to indicate what amounted to a “point of law”, so that people appealing former RAC jurisdictions knew what they could appeal on and so that people knew where s.11, TCEA 2007 stopped and s.176B CLRA 2002 / s.231C, HA 2004 started.

the concept of appeal on a point of law is widely understood, particularly in appeals against decisions of tribunals. It is not possible or desirable to provide any sort of exhaustive list, but the following examples illustrate the breadth of the concept:

(1)            A procedural irregularity or manifest unfairness which causes the decision of a Tribunal to be unjust.

(2)            A decision based on a finding of fact for which there is no supporting evidence (British Telecom v Sheridan [1990] 1RLR 27.

(3)            A finding of fact which is so obviously wrong as to be perverse (Dobie v Burns International Security Services UK [1985] 1WLR 43).

(4)            A failure to provide adequate reasons for a decision (English v Emery [2002] 1 WLR 2409).

(5)            A failure to resolve a conflict of evidence or opinion which is central to the fair resolution of the issues in a case (Lloyds v Hayward [2002] EWCA Civ 1813.

(6)            An over-reliance on the burden of proof as a means of avoiding the resolution of competing expert opinions (Cooper v Floor Cleaning Machines [2002] EWCA Civ 1649).

(7)            A mistake of fact giving rise to unfairness in the decision (E v Secretary of State for the Home Department [2004] EWCA Civ 49).

On the facts (a rent case about what the fair rent was) the test was met.

It might well just be me, but I’m not sure what the practical purpose of the “extended” right of appeal in s.176B, CLRA 2002 is. In reality, the UT(LC) expects appeals to be on points of law in any event. No-doubt we’ll get some further clarification when the new PD is published.