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By J
18/03/2011

Two bites of the cherry?

The Upper Tribunal (Lands Chamber) has, in Earl Cadogan v Cadogan Square Properties Ltd [2011] UKUT 68 (LC), had to grapple with two significant procedural questions involving the LVT and enfranchisement.

Cadogan Square Properties Ltd was the nominee purchaser (i.e. a company formed by leaseholders for the purpose of acquiring the freehold) of 23 Cadogan Square. The parties were unable to agree the purchase price and the matter was referred to the LVT, which determined the price at a little over £2 million. Both parties appealed. Between permission to appeal being granted and the substantive appeal coming on for hearing, the Court of Appeal gave judgment in McHale v Cadogan [2010] EWCA Civ 1471 (our note, here). The parties subsequently agreed that the issues on the appeal fell away, in light of that decision.

Two points, however, remained for consideration:

(a) the LVT decision contained a minor error, which resulted in the purchase price being slightly out (by about £10,000). The parties and their surveyors agreed that there was such an error. The question was whether the Upper Tribunal could correct it.

(b) the decision in McHale was awaiting a decision on permission to appeal to the Supreme Court; could the parties revisit the purchase price if the Supreme Court overturned the Court of Appeal decision?

The Upper Tribunal held:

(a) that it could correct the error, notwithstanding that the substantive appeal had fallen away, or that the LVT had not been asked to correct it. When hearing an appeal from the LVT, the UT had all the powers of that tribunal (s.175(4), 2002 Act) and those powers included (reg. 18, LVT procedure regulations) a power to correct errors;

(b) it was not possible to allow the parties to revisit a purchase price in the manner suggested; the task of the LVT (and, on appeal, the Upper Tribunal), was to determine a price to be paid. That was not compatible with setting a “provisional” price.

On (b), however, presumably there is nothing to stop the parties agreeing (or, even, one party applying to the LVT) for the case to be stayed pending some significant future event, e.g. a permission decision on a related point? This last point is mine, not the UTs, but it must be right.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

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