Keeney Construction Ltd v Dr Zoe Brooke and others [2013] UKUT 329 (LC) is an odd little case (an opening phrase I tend to use a lot when talking about UT appeals). The substantive issue concerned a lease variation application under s.35, Landlord and Tenant Act 1987. We’re not told much about that application, but can infer that the service charge percentages were in some way defective. After a contested application, the LVT (as it was then) agreed to increase the service charges payable by the leaseholders, but sought further submissions on what (if any) compensation to award under s.38(10).

The leaseholders submitted a claim for over £70,000. Those submissions went to the LVT and the other side. The landlord did not respond. The leaseholders then wrote to the LVT (not, I think, copying the other side) saying that the landlord did not appear to want to respond. The LVT then considered the papers and issued a supplemental decision, awarding compensation as sought.

The landlord successfully appealed to the Upper Tribunal (Lands Chamber). First, it was not entirely clear that the LVT had the power to conduct part of the hearing orally and then the rest in writing. But, even assuming that it did, the (then) LVT procedure rules required that any decision to determine part of the case on written submissions required the LVT to notify the parties to that effect. In the present case, that had not clearly and unambiguously been done. Secondly, the LVT had taken into account the letter from the leaseholders in which they said that the landlord did not appear to want to respond. The LVT was wrong to do so without specifically checking with the landlord that this was correct. In the present case there had been a contested hearing and over £70,000 was sought from the landlord; it was “to the highest degree improbable” that the landlord did not intend to participate.