England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LANDS TRIBUNAL
(MR GEORGE BARTLETT QC)

		Royal Courts of Justice Strand London WC2 Tuesday, 5th June 2001

1. LORD JUSTICE DYSON: This is an application for permission to appeal against a decision of the President of the Lands Tribunal on an appeal from a determination by the Leasehold Valuation Tribunal of the London Rent Assessment Committee ("the LVT") in a leasehold enfranchisement application.
2. The appellant is the tenant under a long lease at a low rent of flat 17, Elgin Court, London W9. The respondents are her immediate landlords. On 17th September 1996 the appellant applied for a new lease under Chapter II of the Leasehold Reform, Housing & Urban Development Act 1993 ("the 1993 Act"), by serving on the respondents a tenant's notice of claim pursuant to section 42. By a counternotice under section 45 dated 21st November 1996 the respondents admitted that the appellant was entitled to a new lease but disputed the terms of acquisition proposed by the appellant.
3. On 16th May 1997, the appellant applied to the LVT under section 48(1) of the 1993 Act for a determination of the matters in dispute. The application was made against a background of negotiations that had been going on between the parties as to the terms of the proposed lease. By May 1997, the negotiations had reached an advanced stage. On 30th October 1997, Messrs Loxleys, the landlord's solicitors, wrote to Messrs Harkavys, the appellant's solicitors, saying they would be completing the lease and would provide a completion statement as soon as possible. Harkavys replied on 31st October saying that for the purposes of section 48 of the 1993 Act they took the letter of 30th October as the date on which the terms had now been unconditionally agreed. On 5th November, Harkavys wrote to the LVT saying that in view of the landlord's confirmation that they intended to grant a lease in the agreed terms the hearing should be adjourned, and that is what happened. No lease was in fact ever granted.
4. On 24th December 1997, the appellant applied to the Central London County Court for an order under section 48(3) that the landlords grant a lease in accordance with the terms that had been agreed on 30th October 1997. At this point it is convenient to set out the material terms of the 1993 Act. Section 48 provides:

"(1) Where the landlord has given the tenant -

(a) a counter-notice under section 45 which complies with the requirement set out in subsection (2)(a) of that section, or

(b) a further counter-notice required by or by virtue of section 46(4) or section 47(4) or (5), but any of the terms of acquisition remain in dispute at the end of the period of two months beginning with the date when the counter-notice or further counter-notice was so given, a leashold valuation tribunal may, on the application of either the tenant or the landlord, determine the matters in dispute.

(2) Any application under subsection (1) must be made not later than the end of the period of six months beginning with the date on which the counter-notice or further counter-notice was given to the tenant.

(3) Where –(a) the landlord has given the tenant such a counter-notice or further counter-notice as is mentioned in subsection (1)(a) or (b), and (b) all the terms of acquisition have been either agreed between those persons or determined by a leasehold valuation tribunal under subsection (1), but a new lease has not been entered into in pursuance of the tenant's notice by the end of the appropriate period specified in subsection (6), the court may, on the application of either the tenant or the landlord, make such order as it thinks fit with respect to the performance or discharge of any obligations arising out of that notice.

(4) Any such order may provide for the tenant's notice to be deemed to have been withdrawn at the end of the appropriate period specifified in subsection (6).

(5) Any application for an order under subsection (3) must be made not later than the end of the period of two months beginning immediately after the end of the appropriate period specified in subsection (6).

(6) For the purposes of this section the appropriate period is -

(a) where all of the terms of acquisition have been agreed between the tenant and the landlord, the period of two months beginning with the date when those terms were finally so agreed; or

(b) where all or any of those terms have been determined by a leasehold valuation tribunal under subsection (1) -

(i) the period of two months beginning with the date when the decision of the tribunal under subsection (1) becomes final, or

(ii) such other period as may have been fixed by the tribunal when making its determination.

(7) In this Chapter 'the terms of acquisition', in relation to a claim by a tenant under this Chapter, means the terms on which the tenant is to acquire a new lease of his flat, whether they relate to the terms to be contained in the lease or to the premium or any other amount payable by virtue of Schedule 13 in connection with the grant of the lease, or otherwise."

5. Paragraph 1 of Schedule 13 is in these terms:

"...'the valuation date' means the date when all of the terms of acquisition (apart from those relating to the premium and any other amounts payable by virtue of this Schedule in connection with the grant of the new lease) have been determined either by agreement or by a leashold valuation tribunal under this Chapter."

6. In the county court proceedings the appellant's stance was that the terms of acquisition had not been agreed until the end of October 1997. The landlords contended that the terms had been agreed by 29th May 1997. If that were right, the appellant was out of time. Alternatively, the landlords asserted that there was no binding agreement as to the terms of acquisition at all. On that footing the application was premature and the county court had no jurisdiction. The county court application was dismissed by the deputy district judge on 4th August 1998.
7. On appeal, Mr Recorder Behar, on 29th June 1999, held that the terms of acquisition were not finally agreed either on 29th May 1997, or at the end of October 1997, or at all. He held that no final agreement had been reached for the purposes of section 48(6) and that, accordingly, the application was premature and had to be dismissed. He decided that the terms of acquisition could not be agreed within the meaning of section 48(3)(b) and (6) unless they were subject to a binding and enforceable agreement.
8. Following the dismissal of the application in the county court, the tenant restored the adjourned application to the LVT. One of the matters that had to be determined by the LVT was the valuation date as defined by paragraph 1 of Schedule 13 to the Act. The LVT determined the valuation date as 29th May 1997.
9. The landlord appealed to the Lands Tribunal. On 5th December 2000, Mr George Bartlett QC, President, held as follows: (1) the Recorder's decision pursuant to the application under section 48(3) that the terms of acquisition had not been agreed gave rise to an issue estoppel for the purposes of determining whether and, if so, when, all of the terms of acquisition had been agreed so as to fix the valuation date within the meaning of paragraph 1 of Schedule 13; (2) by the date of the hearing before the President on 29th October 1999, there was no issue as to the terms of the acquisition other than the premium.
10. The President stated at paragraph 18 of his decision that the position adopted by the landlords before him amounted to an acceptance on their part of the terms agreed by 29th May 1997 other than the premium. He continued:

"At that point, therefore, those terms ceased to be in dispute, and there was agreement on them. Accordingly in my judgment the valuation date for the purposes of determining the premium under Schedule 13 is 29 October 1999. The appeal is allowed on this basis."

11. On behalf of the appellant tenant Miss Morgan submits that the President has misinterpreted the meaning of paragraph 1 of Schedule 13. As I understand it, she accepts that the finding by the Recorder that all of the terms of acquisition had not been agreed for the purposes of section 48(3) and (6)(a) gave rise to an estoppel in relation to the issue of whether all the terms of acquisition remained in dispute for the purposes of section 48(1). But what is not accepted is that the estoppel extends to the issue which it is sought to raise by way of appeal, namely the determination of the relevant valuation date. She submits that the purpose of the valuation date is to facilitate the determination by the LVT of the premium, and that for that purpose there is no need for an agreement to have the same binding quality as is required for the purposes of section 48(3) and (6)(a). An agreement for the purposes of section 48(3) and (6)(a) is intended to form the basis of an order for specific performance. Miss Morgan submits that the President has confused two distinct concepts. All that is meant by agreement in the Schedule 13 definition is a concluded agreement in the sense that the negotiations have been completed and the agreement is final and unqualified. It does not, however, need to be an enforceable agreement.
12. I am willing to accept that, as a matter of statutory interpretation, it is at least arguable that Miss Morgan is right in submitting that what is meant by "agreement" in the Schedule 13 definition is no more than a concluded but not necessarily binding agreement in the sense that the negotiations, save as to premium, have been completed. The difficulty that I see in the path of this potential appeal lies elsewhere. The fact is that this is not a case in which agreement had been reached on all the terms, save as to premium. As the President pointed out at paragraph 14 of his decision, the Recorder's conclusion that the terms of acquisition were not finally agreed was a conclusion that applied to all the terms. The relevant passage in the Recorder's decision is set out at paragraph 13 of the President's judgment. The Recorder did not say that each party was reserving the right to go back to the LVT on the issue of the premium alone. As the President pointed out at paragraph 15, counsel for the tenant:

"... places reliance on the letter of 29 May 1997 from the landlords' solicitors as showing that agreement was reached on terms of the acquisition for the purpose of the application to the LVT. But the terms so agreed were all the terms, including the premium, without distinction between them. The LVT only had power under section 48(1) to determine the matters in dispute. I do not see how, if the letter of 29 May 1997 established what terms were agreed between the parties, there would be anything for the LVT to determine. On the other hand, if the letter did not amount to agreement on the premium, it did not amount to agreement on any of the other terms."

13. Despite the persuasive attempts by Miss Morgan to persuade me otherwise, I see no answer to that paragraph; either all the terms had been agreed in which case there was nothing for the LVT or on appeal for the President to determine, or none had been agreed, in which case the valuation date had not yet occurred. No distinction could be drawn on the facts of this case between terms as to premium on the one hand and on the other terms on the other hand. Therefore this is not a case in which it would be right for me to give permission to appeal because it seems to me that the outcome of an appeal is inevitable on the basis of the particular facts of the case. Accordingly, I refuse this application.
(Application for permission to appeal refused)