Morshead Mansions Ltd v Di Marco [2014] EWCA Civ 96 marks the tragic demise of a clever and useful remedy fashioned by Mann J in the High Court case of the same name (our note here). In brief, ss.21, 22, Landlord and Tenant Act 1985 entitle leaseholders to summaries of costs in respect of their service charges and, in turn, to inspect underlying documents (invoices, etc). The 1985 Act makes it a crime to fail to comply with the obligations in ss.21, 22 (subject to a defence of reasonable excuse). In reality, however, private prosecutions almost never happen and very, very few councils will take action (the local housing authority has power to prosecute).

The facts of the case are set out in our previous note, but, suffice to say that Mr Di Marco claimed he had not been given the information required under ss.21, 22 and sought an injunction to compel their production. The county court held that there was no such remedy. Mann J disagreed, holding that there was no reason why the civil law could not come to the aid of the criminal law in this case.

And the Court of Appeal decided that the county court was right. The rights in ss.21, 22 were recent re-enactments of much older provisions. Those older provisions had also been “criminal only” sanctions. It would be odd if Parliament had intended there to be a civil remedy, but failed to legislate to that effect. There were a range of civil remedies which were clearly set out in the 1985 Act (s.21B, summary of rights; right to withhold service charges until complied with), which suggested that, where Parliament wanted to create civil rights, it did so clearly and unambiguously. It was unlikely that a tenant would suffer any relevant harm by not being given the information. In any event, most leases provided for some information to be given to leaseholders, so it was not as if they could never find out what was going on vis a vis the service charges.