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By J
28/02/2012

Pay attention at the back

Lawton v 55 Elgin Crescent [2012] UKUT 62 (LC) is one of those cases that you read and think “what on earth was the Tribunal doing?” Luckily, the UT(LC) has stepped in to put the matter right. If only the LVT had paid a bit more attention

Ms Lawton is the leaseholder of a flat in 55 Elgin Crescent. In or around 2004, she paid certain service charge monies on account of major works, which, on her case, had still not been exhausted as she had still not received value for money in respect of the works done. The landlord disagreed.

First LVT case

Proceedings were issued in the county court and, in turn, transferred to the LVT. The LVT noted that Ms Lawton as arguing, inter alia, that there had been non-compliance with s.20, Landlord and Tenant Act 1985, such that her service charge liability was capped. At the pre-trial review, the LVT set that issue out as one of the issues for trial.

For reasons which are not entirely clear, the LVT which heard the final trial, did not allow Ms Lawton to advance this defence, holding that there was no jurisdiction to consider the point. It indicated that, if she wanted to run this argument, she needed to issue a fresh application. This she duly did (indeed, it was issued during the course of the first LVT case!)

Second LVT case

A PTR was held in the second case, at which the landlord indicated that it intended to argue that Ms Lawton was now estopped and/or barred by laches from running any s.20 argument. That issue was set down for trial and, ultimately, accepted by the LVT. They found as a fact that Ms Lawton had not raised any issues under s.20 until 2009, at the earliest and, accordingly, was now estopped / barred by laches from advancing that argument

The appeal

The Upper Tribunal allowed an appeal. The evidence was clear that s.20 had been in issue since 2004; that evidence had been before the LVT and it was impossible to see how they could have concluded anything else. That being so, there was no possible factual basis upon which an estoppel or laches argument could have worked.

The more interesting stuff

OK, so an LVT doing something mad isn’t that unusual (see, by way of the most recent – and extreme – example, this case). But, the more interesting arguments were the ones the President didn’t feel the need to rule on. Was the second LVT decision perverse in the Wednesbury sense, given that the first LVT had effectively told Ms Lawton to issue the application? Was it possible, as a matter of law, to be estopped from relying on protective legislation such as s.20, 1985 Act? In order for laches to apply, there must be no limitation period; so is there a limitation period for LVT claims? The UT(LC) heard argument on these points, but didn’t find it necessary to decide them. No doubt they’ll come up again, probably sooner rather than later.

 

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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