In honour of the birth (in England) of the new FTT(PC), I bring you a little note about case from the UT(LC), all about forgetting old things.
Jastrzembski v Westminster CC [2013] UKUT 284 (LC) concerns some major works. The underlying facts are relatively complex (and clearly involve disputes and issues going back into the mists of time), but the key point for our purposes is that a s.20 notice had been sent in 2009 detailing major works. As you’ll all know, such a notice must, inter alia, give the details of where observations about the notice should be sent. The notice in the present case contained an error in that it referred to someone who was no longer involved in administering the major works. Unprompted by either party, the LVT determined that this notice was invalid.
However, there had been a similar notice earlier (in 2007, as it happens). The LVT found that the 2007 notice was valid and that it was adequate for the 2009 works. Again, no-one seems to have taken this point.
In these rather odd circumstances, the UT(LC) was left to try and resolve matters. It held:
(a) that the LVT appeared to have forgotten the fundamental principle of natural justice that it was for the Tribunal to determine the dispute before it, and not take points not raised by the parties (at least, not without good reason and proper notice), see, amongst other authorities BCC v Keddie [2012] UKUT 323 (LC) (and here);
(b) the LVT was, in any event, wrong to find the 2009 notice invalid; there was no requirement that a s.20 notice give any particular address – it could be the landlord, his agent, project manager, managing agent, etc. The fact that the person referred to no-longer worked for the landlord was not itself key; there could have been procedures in place to ensure that observations made to that person would still reach the landlord – it was this last question that the LVT should have considered (and had not);
(c) the argument that the 2007 notice was valid for the 2009 works did not seem to be one that either party had advanced and it suffered from the same problems as (a), above. Whether the 2007 notice could be valid for the 2009 works was a question of fact; e.g. did it describe the 2009 works? Importantly, there was no “expiry” or “best before” date on a s.20 notice; but a notice would usually remain valid only for a period of months, not years. Importantly (as I have been saying for years when asked this question) if the scope of the works changed between 2007 and 2009 or the potential costs changed, then the notice could not be valid as the 2007 notice no-longer contained accurate information.
Or indeed the argument we now have that if there is a technical failing, to what is extent is there prejudice….