Cadogan v Chehab [2009] EWHC 3297 (Admin), (only available on Casetrack) is noted in the current edition of Legal Action, but, so far as I can tell, hasn’t been picked up anywhere else. It’s only worthy of a short note though, which is set out below.
Chehab was the assured tenant of a flat owned by the appellant. The tenancy had arisen upon the expiry of a long leasehold interest. The rent had been agreed at £17,000 p.a. but, in 2008, the landlord served notice under s.13, Housing Act 1988, seeking to increase the rent to £29,120 p.a. and, in due course, the matter was referred to the Rent Assessment Committee.
Both parties put in evidence from a surveyor and were represented by their surveyors in the hearing. Following the hearing, the surveyor for the tenant submitted an additional report. The report was sent to the RAC but not to the landlord (the tenant apparently thought the RAC would forward a copy which, to be fair, it appears to have done with other, earlier, documents). Based partly on that supplemental report, the RAC set the rent at £22,500 p.a. The landlord appealed.
The appeal was allowed. It was wrong of the RAC to have made a decision based on the supplemental report without allowing the landlord to respond. Although the RAC appeared to have a practice of forwarding documents to the other party, it was advisable for the parties themselves to ensure that their documents were provided to the other side.
In addition, the RAC had erred in not taking into account the additional security of tenure conferred on an assured tenant and should have reflected this security in the rental level. The Judge declined to rule on what would happen if, taking that security into account, the RAC set the rent at more than £25,000 (such that security of tenure would be lost, as the tenancy could no longer be an assured tenancy).
i suppose the only rule is to be double safe and serve everything.
there was a similar point in a third party debt order i was handling. instructing solicitors hadn’t served the other side and they asked me whether they had to. the cpr is not helpful – or at least i couldn’t find the answer there (which may not be the same thing); it merely states that ‘if’ the claimant serves they have to do so by certain prescribed times. just like a charging order. but in neither case does it specify service by the claimant or set out what other option there is, although the presence of an ‘if’ suggests that there is some other option.
What an odd way to put things. The RAC doesn’t “have a practice of forwarding things” it is obliged to do so pursuant to regulation 5(1) of the Rent Assessment Committees (England and Wales) Regulations 1971/1065 as anyone who knows anything about RAC’s would have told the court.
The point is that if a document has not been made available to a party the RAC must adjourn for sufficient time to give the party a chance to consider it, unless the party consents to going ahead without an adjournment.
As for 3rd party debt orders. There’s no doubt that service must be done (per CPR 72.5) but there is obviously an option for the court or judgment creditor to serve. That goes without saying. Unless the rules provider, the court is not required to serve, so the obligation falls on the judgment. In my experience the matter is usually put beyond doubt by the court’s order at the interim hearing.
In fairness – it is clear from the post-hearing discussions between counsel and the judge that his attention was drawn to Reg 5(1). He just expressed himself in a rather more relaxed manner.
francis, the matter is certainly not invariably (i know you said ‘usually’) put beyond doubt by the order. some of the floppy orders you get out of djs who really should know better beggar belief. tho it is very nice when one has a separate order (as is the habitual practice of at least one london court) specifying the parties required to be served. they could probably save paper and just stick it on the bottom of the interim order but no doubt they have their reasons. (court staff on a bonus?)
of course my IS were being crap in that they had neither served nor asked whether they should serve until it was too late, but it is annoying that the CPR leaves the matter hanging. i haven’t come across the court serving charging orders and assume it doesn’t happen, especially given the disorganisation in certain courts. *ahemcentrallondonahem*
I know. Nothing is invariable about court practice, which is why I said “usually”.
And its quite right that serving the other side is a good idea even when you really shouldn’t have to.
I have an excellent solicitor that routinely serves court documents on the other side even when the court is due to do so. Belt and braces. Its got us out of difficulty on a number of occasions where the court has just failed to do its job.
Ah – having just looked at the procedure regs, they only apply to docs produced before or at the hearing, not afterwards. Hence the phrasing chosen by the Judge.
‘I have an excellent solicitor that routinely serves court documents on the other side even when the court is due to do so.’
i can beat that! in response to directions, i served some docs on the other side (a LA) in a housing benefit matter in the first tier SS tribunal, simultaneously sending them to the tribunal. i got a call from the other side asking if i wanted them to send them to the court! that’s like belt braces and a large pink fridge freezer.
Hmmm, strictly exchanges of documents prior to the finalisation of the committee’s decision at a hearing would be covered I think.