Latest Chambers News
Latest Chambers News
Costs Against Unreasonable Parties in the FTT
In Ramesh Kerai v Narinda Sharma, Tricia Hemans appeared for the successful applicant in an application for costs before the First-tier Tribunal. The issue was whether the Tribunal should, pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, order the Respondent to pay the Applicant’s costs incurred and incidental to the Respondent unreasonably defending and conducting proceedings.
The substantive claim related to a dispute over the appropriate price payable for an extended lease of a property under the Leasehold Reform Housing and Urban Development Act 1993 and other matters relevant to that transaction. The respondent failed to comply with the Tribunal’s directions and the Tribunal determined that there was no plausible explanation or excuse for the failure.
The tribunal found that the Respondent’s failure to comply with the Tribunal’s Directions and subsequent lack of engagement in the negotiation process was unreasonable and therefore awarded costs in respect of the greater expenditure which was incurred by the Applicant as a result.
Determined Boundaries under the Land Registration Act 2002, and Extrinsic Evidence
Nathaniel Duckworth successfully appeared for the Appellant in Murdoch v Amesbury (handed down 04/01/16), a decision of the Upper Tribunal currently only available here. The case decided that the First Tier Tribunal is only empowered, when presented with an application for a determined boundary, pursuant to section 60 of the Land Registration Act 2002 and the Rules made under it to decide whether the proferred boundary is indeed the right one. It is not allowed to determine further, if it decides that the proferred boundary is not the right one, where the correct boundary is. Furthermore, the Upper Tribunal considered the principles of interpretation relating to boundary disputes in Ali v Lane and the probative value of extrinsic evidence under those principles.
1954 Act: Restoring Withdrawn Grounds of Opposition
Can a landlord who opposes renewal under paragraph (f) of s.3)(1) of Part II of the 1954 Act and who then agrees with the tenant to withdraw his opposition subsequently restore his opposition to the renewal? The Hammersmith County Court held that the landlord can do so in the recent decision of Waterstones Booksellers Ltd v Notting Hill Gate KCS Ltd (2016). In that case the landlord withdrew its opposition as it was not confident it would be able to proceed with its development. Directions were given by consent for the matter to proceed as an unopposed renewal. A year later with no substantive step having been taken in the unopposed proceedings the landlord sought to restore its ground (f) in accordance with CPR 17 (amendment) and CPR 14.1 (withdrawal of an admission). The court found that balancing the respective prejudice to the parties favoured permitting the landlord to amend. Wayne Clark acted for the successful landlord. Kirk Reynolds QC acted for the tenant.
The Exercise of Judicial Discretion to Grant Pre-Action Disclosure
Stephanie Tozer appeared in an application for pre-action disclosure brought by a long lessee against the directors of the RTM co. Mr R Spearman QC sitting as a Deputy in the Chancery Division accepted that the threshold tests in CPR 31.16 were all met, but refused the application, as a matter of discretion, despite accepting that (i) the claim which the Applicant intended to bring had better than “no” prospects; and (ii) the disclosure sought was not onerous. He held that other factors militated against disclosure because the claim appeared speculative. The other factors he identified here were that (a) the Applicant had taken inadequate steps to set out its case in pre-action correspondence and had not given the Respondents an adequate opportunity to reply; (b) the loss had not been quantified or particularised adequately in the evidence; (c) the documents sought were personal communications; and (d) the Applicant could commence proceedings without having the material at this stage.
Implied Easements on Sale of Part
Tamsin Cox has appeared in the Chancery Division in Linvale investments Limited v Walker, in which the Claimant, acting by receivers, claimed a right to use a route over the Defendant’s land for emergency purposes, where the two parcels had formerly been owned and used as one and marked fire doors led from a building on the Claimant’s land directly onto an apparently purpose-built path on the Defendant’s land. The claim was pursued on three bases – section 62 of the Law of Property Act 1925, the rule in Wheeldon v Burrows and implication based on common intention. On the facts, the claim that the parties had intended that the paths be used by the Claimant following division of the parcels was successful, but importantly for future decisions the case established that historic user of the route, three years before the relevant transaction, could not be relied upon for the purposes of s.62 and the rule in Wheeldon v Burrows, and further that in order to establish ‘enjoyment’ of the claimed right, even in the context of a right which would be expected to be used rarely, the Claimant did need to prove actual physical user of the route of the way. It was not sufficient to show that the building had been occupied prior to the division of the parcels in a manner which necessitated the availability of the fire escape, if it could not also be shown that the right had in face been exercised.
Effect of Agreeing Terms of Acquisition; Jurisdiction of the FTT
96b High Street, Colliers Wood, London SW19 2BT (LON/00BA/OLR/2015/1162): Toby Boncey successfully argued on behalf of the Respondent that the First-Tier Tribunal had no jurisdiction under s48(1) of the 1993 Act to determine the terms of a new lease where none of the “terms of acquisition” remained in dispute.
The tenant gave notice of claim under s42, stating that the terms of the new lease should be as per the existing lease. The landlord gave counter-notice, proposing a higher premium but otherwise accepting the terms in the initial notice. The tenant then applied for a determination of the premium under s48(1). Subsequently, the tenant agreed the premium and the parties moved onto the conveyancing stage, the landlord providing a draft lease. At this point, the tenant decided it didn’t want to include a term in the existing lease permitting forfeiture on the tenant’s bankruptcy, purported to require the exclusion of that term under s57(6), and sought a determination of this point in the s48(1) application which it had not yet withdrawn. The Tribunal decided it had no jurisdiction to determine this issue since the terms of acquisition had been agreed at the point when the tenant agreed the premium.
Council of the Inns of Court has appointed Derek Wood QC as Chair of the Governors of the Inns of Court College of Advocacy
Falcon Chambers is delighted and proud to announce that The Council of the Inns of Court has appointed Derek Wood CBE QC as Chair of the Board of Governors of the newly-established Inns of Court College of Advocacy (ICCA). The ICCA will replace the Inns’ existing Advocacy Training Council (ATC) in May 2016. It will expand the ATC’s current programme of national and international advocacy training, aiming to become a global centre of excellence in teaching the practice and ethics of advocacy in all its forms. It will build links through its website and on-line platforms, conferences and training sessions with advocates practising in common law and civil jurisdictions throughout the world.
In addition to advances in the training of oral advocacy, ground-breaking work which the ATC has previously carried out includes the handling of vulnerable witnesses, improvements in the management of experts, foreign languages in court and the effective use of interpreters and the teaching of professional ethics. The Inns of Court are making significant increases in the resources available to maintain and expand this programme, and it is hoped that ICCA will also play an increasingly prominent role in the education and training of those wishing to qualify at the Bar.
Derek comes to the Chair with immense experience, having made many other contributions to the development of education and training for the Bar, and having been Director of Advocacy in the Middle Temple since 2011.
Business Lease Renewal: Section 34 Rents and Tenant's Breaks
Britel Fund Trustees v B&Q PLC considers how to assess rent under s.34 of the 1954 Act when the new lease is to contain a very early break clause that would deter most prospective tenants in the real world. It also considers two conflicting County Court decisions on whether or not 3 month rent holidays for fitting-out should be devalued under the 1954 Act (Max Mara and HMV) and concludes that the latter should be followed. The judgment can be found here. Nat Duckworth appeared for the Defendant.
The Upper Tribunal has handed down judgment in Christopher Moran Holdings Limited v Carrarra-Cagni [2016] UKUT 152. Philip Sissons represented the successful appellant.
In this appeal the Upper Tribunal determined that the FTT had erred in holding that the respondent tenant was not liable to contribute to the cost of repairing two conservatories attached to a penthouse flat through the service charge. The FTT held that the two conservatories were unlawful alterations added to the building at some point after the grant of the original headlease and that the parties to the sub-leases could not have intended that the sub-tenants would be obliged to contribute to the cost of maintaining unauthorised additions to the building. However, the Upper Tribunal upheld the landlord's appeal against that decision. The Deputy President decided that the landlord was obliged to repair the main structure of the building including additions thereto. The cost of carrying out necessary repairs was recoverable through the service charge. There was no basis for construing the lease as if the repairing obligation extended only to authorised alterations. Accordingly, even if the conservatories were erected in breach of covenant when they were built at some point in the early 1970s (as to which there was no evidence) the sub-tenants were now obliged to contribute to the reasonable cost of repairing them. The full judgment can be found here
1995 Act - A lease cannot be assigned to the tenant’s guarantor. The assignment is void and of no effect
EMI Group Limited v O & H Q1 Limited. Kirk Reynolds appeared for the successful defendant. The judgment can be seen here
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