England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
His Honour Judge Collins CBE
CHY07235

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/07/2008

Lord Justice Jacob:

1. This is an appeal, with permission granted by Collins LJ, from a decision of HHJ Collins CBE given on 14^th December 2007.
2. The defendant/appellant, Thornbury Court Ltd. ("the reversioner") is the freehold owner of a block of flats called Thornbury Court. The flats are let to a number of tenants. The respondent, Goldeagle Properties Ltd. ("the nominee purchaser") is a company formed by not less than one-half of the tenants for the purposes of exercising the right to a collective enfranchisement of Thornbury Court.
3. Such a right is provided by Part I of the Leasehold Reform, Housing and Urban Development Act 1993 as amended. The Act sets out the procedure to be followed for the right to be exercised. The provisions are long and detailed. I set them out in the Appendix so far is necessary for understanding this judgment.
4. In outline and stripped of some irrelevant complication the procedure runs as follows. It is started by what s.13 calls an "initial notice" served on the reversioner by the tenants of at least half of the flats in the specified premises. The notice must identify a nominee purchaser and contain a number of details including the proposed purchase prices for the freehold and leasehold interests. The initial notice must specify a date for a response by the reversioner (called a "counter-notice") which is not less than two months from the date when notice of the claim is made by the initial notice.
5. Section 21 requires the reversioner to give a counter-notice by the specified date in which it is either to admit or deny the right to collective enfranchisement. Where the right is admitted the reversioner must state which proposals are accepted, and which are not, and the reversioner's counterproposals for the unaccepted proposals.
6. Section 24 deals with what happens when the right is admitted but the terms are in dispute or there is a failure to enter a contract. If, after a further period of two months from the service of the counter-notice there is no complete agreement, either side can apply to the leasehold valuation tribunal ("LVT") to "determine the matters in dispute." Such an application must be made within six months of the counter-notice.
7. When all the terms are agreed or determined by the LVT but a binding contract has not been entered into by the end of the "appropriate period" either side can apply to the court for an order vesting the interests on those terms.
8. The court can then make an order vesting the interests in the nominee purchaser on the agreed and/or settled terms or providing for the initial notice to be deemed to have been withdrawn at the end of the "appropriate period."
9. The application to the court must be made "not later than the end of the period of two months beginning immediately after the end of the "appropriate period"." If no application to the court is made within that period, there is a deemed withdrawal of the initial notice and the whole procedure comes to an end. The tenants cannot re-start for a year from the date of the deemed withdrawal.
10. The issue in this case is whether or not there was a deemed withdrawal of the initial notice by the date the nominee purchaser applied to the court for a vesting order. HHJ Collins held there was not, that the application was made in time.
11. So I turn to the facts:

i) The tenants served a s.13 initial notice on 7^th February 2005. It identified the present respondents as the nominee purchaser, identified the interests to be acquired (essentially the prices for each of the flats) and set a date for a response.

ii) The reversioner served a s.21 counter-notice on 15^th April 2005. This admitted the right to collective enfranchisement and the proposed prices of some of the interests to be acquired. It disputed the prices of the remainder of these interests. It made counterproposals in respect of these. It also enclosed draft transfers containing provisions "in accordance with s.34 and Sched. 7 of the Act" which it said it considered should be in the ultimate conveyance. The terms of those draft transfers were not explicitly either accepted or challenged by the nominee purchaser at that time.

iii) It was the reversioner who next made the running by issuing an application to the LVT on 11^th July 2005. In its application form it said the purpose of the application was "to determine the amount payable as the purchase price" of identified interests, i.e. those whose price had been disputed in the counter-notice.

iv) In a Statement of Case the reversioner went into more detail. It identified under a heading "Issues Agreed Between the Parties" those interests and prices which had been agreed in the counter-notice. It then went to a major heading "Issues in Dispute." After dealing with the individual interests it added:

15. The terms of the conveyance is attached to the Counter-Notice and the Applicant has not received any response to the Counter-Notice from the Respondent and accordingly the Applicant reserves the right to provide further submissions should the same be necessary.

Section 33 Costs

16. In view of the fact the conveyance has yet to be agreed between the parties and accordingly (sic) it is not appropriate for the Tribunal to determine Section 33 Costs because not all Section 33 Costs have yet been incurred.

v) The nominee purchaser's reply to the statement of case, after dealing with the agreed issues proceeded to the "Issues in Dispute." After dealing with the valuation date and the individual interests it said:

The Conveyance

15. The Respondent will amend and return the draft Contract attached to the Applicant's Counter Notice once the terms of acquisition have been determined by the LVT in accordance with the provisions laid down in the Act.

Section 33 Costs

16. The Respondent agrees the matters set out in paragraph 16 of the Applicant's Statement of Case as set out therein.

vi) The LVT made a decision and two subsequent correcting decisions, the later of which was 22^nd August 2006. The LVT fixed the disputed prices but said nothing about the terms of the conveyance or s.33 costs.

vii) It is common ground that, under the relevant rules, the decision of the LVT became final by, at the latest, on 14^th September 2006.

viii) Thereafter there was correspondence between the parties' solicitors. The details do not matter. It suffices to say that there was no express indication from the nominee purchaser's solicitors that the terms of the transfer were agreed until the nominee purchaser's solicitors, by a letter of 13^th November 2006, said their clients had signed the contract (which incorporated the terms of transfer originally sent with the Counter-Notice).

12. The Judge held that there was no agreement until that letter and so time only began to run from then. It followed that the application to the Court, which was made on 9^th February 2007 was within time. He accordingly made a vesting order.
13. Mr Wayne Clark for the reversioner contends the Judge was wrong: that time began to run from the 14^th September 2006 when the decision of the LVT became final.
14. I repeat the key provisions of s.24 with emphasis on the bits that matter

(5) Any application for an order under subsection (4) 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 parties, the period of two months beginning with the date when those terms were finally so agreed;

(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 that subsection becomes final, or

(ii) …

Note that one of the "terms of acquisition" is specifically, by s.24(8)(e) "the provisions to be contained in any conveyance."

15. Mr Clark's first submission was that s.24(1) contemplates only one application to the LVT. The basic scheme is that following the counter-notice there will be either agreement of all items or dispute over all or some of them. The disputed items are to go to the LVT in one go. The Act simply does not contemplate successive applications. Putting it another way, s.24(1) confers jurisdiction on the LVT to "determine the matters in dispute." That means all the matters in dispute. And any matter not agreed, whether actually disputed on the counter-notice or simply not agreed, is taken to be a "matter in dispute."
16. Alternatively, submitted Mr Clark, the parties proceeded before the LVT as though the terms of the conveyance had been agreed. For one cannot really determine the price of an interest unless one knows exactly what is to be conveyed and on what terms, for instance as to easements. One needs to know the "quality of the interest" not merely its physical extent. So when the LVT settled the prices it was doing so on the basis of the proposed terms of transfer which had never been disputed. And all the more so in view of the fact that the valuation date was agreed. It simply was not contemplated by anyone that there could be a later dispute over the terms of transfer. It would not be open to the nominee purchaser to make a further application to the LVT to settle the terms of transfer. Otherwise there might be a "knock-on" effect on the prices which had already been settled.
17. I would reject both submissions. As to the first, I agree that the general scheme of the Act is to identify the matters in dispute and give either side a right to go to the LVT to settle all of them. The Act does indeed do that. But I can see nothing in the language of s.24(1) which prohibits the LVT from dealing with unagreed points in stages. As Mr Letman pointed out it is easy to imagine cases where the scheme of the Act simply could not be worked if that were not possible. Suppose for instance a case where only some of the interests whose prices or nature were in dispute following the counter-notice were referred to the LVT, either by design or accident. One simply could not say these items must be taken to be agreed. So they would be neither agreed nor determined by the LVT and time would not start to run until they were. It would be open to go back to the LVT and say "please determine this further unagreed matter."
18. I reach that conclusion apart from the authorities. But these too are against Mr Clark. We were referred to Penman v Upavon Enterprises [2001] EWCA Civ 956 and Sinclair Gdns Investments (Kensington) v Eardley Crescent ([2006] EWLands LRA_77_2005.
19. In Penman this court was concerned with a case where two disputed matters had been referred to the LVT, namely the price and the terms of the conveyance. The disputed term was whether there should be an indemnity included in the conveyance. The LVT determined the price but not the latter issue. It was held that time had not begun to run and that the application to the court for a vesting order was premature. Arden LJ said:

[33] The terms of paragraph (b) [of s.24(3)], in my judgment, are critical. They make it clear that before the court can make a vesting order (or indeed any other orders provided for in subsection (4), the situation must have been reached where not just some, but all of the terms of the acquisition have either been agreed between the parties or determined by the LVT."

Arden LJ at [34] described s.24(3) as "the controlling provision." An argument, based on the words "all or any of those terms" in ss.(6) meant that time ran from the moment any term was settled, was rejected.

20. Tuckey LJ put it this way:

[40] The combined effect of subsections (3) to (5) of s.24 is that a court cannot make a vesting order unless all the terms of the acquisition have either been agreed or determined by a LVT. It is accepted that this condition had not been met in this case at the time the tenant made an application for a vesting order. The only question is whether the tenant can get over this apparently insuperable obstacle by saying that the LVT's decision must in some way be taken to have decided all outstanding issues because it is final and/or because the landlords have waived their right to have the outstanding issue decided, or are estopped from contending that it has not been.

[41] I do not think the obstacle can be overcome by saying the LVT's decision is final. The tribunal's decision may be final as to what it did decide, but it cannot be final as to what it did not. I can see no reason in principle why the Tribunal cannot still decide the outstanding issue. The statute requires it to decide all matters in dispute and it has not yet done so.

21. All of that applies to this case – the LVT had not decided the terms of the conveyance, which had not been agreed. Mr Clark sought to distinguish Penman on the basis that there the two disputed matters had actually been expressly referred to the LVT. So it was seized with a dispute about both, and, having decided one, remained seized of the other. Here things were different because there was no initial reference to the LVT concerning the terms of the transfer. An entirely fresh application to settle these would be needed if the parties could not agree, and that was not permissible under the statute. I do not think Penman can be so distinguished. No part of the reasoning of either member of the court turned on the fact that the determination of one matter remained "pending" before the LVT – the reasoning was that an outstanding matter had not been agreed or determined and the LVT accordingly still had power to determine it.
22. The other authority, Sinclair, a decision of HHJ Huskinson in the Lands Tribunal, Mr Clark fairly conceded was against him. He submitted it was wrong and ought to be overruled. The facts of Sinclair were close to that of this case. The LVT had been asked to determine certain disputed matters but not others. The submission was that the tribunal was functus officio after it had decided these and it was too late to amend the reference after a final decision. The submission (and variants of it) was rejected. HHJ Huskinson applied what Tuckey LJ said in Penman, saying:

[26] There is no reason in principle why the jurisdiction conferred by s.24(1) on an LVT has to be exercised in a single once and for all decision rather than being dealt with in stages by way of two or more decisions.

23. I agree, and I think it makes no difference whether all the disputed matters are put forward in a single application with the LVT deciding them in succession or are put forward successively. Once an application is made to the LVT within time, the LVT remains seized of all matters in dispute.
24. So, for instance, in the present case if either party has asked the LVT prior to its determination of prices to determine the terms of the transfers it would have had jurisdiction so to do. And since it had not determined the terms of the transfers, it continued to have jurisdiction to determine these if it had been asked so to do. The jurisdiction of the LVT is over all "matters in dispute" and is not confined to the specific matters raised in the pleadings at any particular time.
25. I turn to Mr Clark's alternative argument, that the terms of the transfer must be taken to be agreed because the nature of such terms is implicit in the fixing of the prices. I have some sympathy with this, but must reject it. It is clear that in principle one ought to know the details of the transfer before fixing the price. But in a case such as the present where no-one suggested that the precise terms of transfer which would eventually be agreed or decided would affect the price I think it was open to the LVT to proceed on the basis that the precise terms would not affect the price, That is not saying the same thing as that the terms proposed must be taken to be agreed exactly as proposed.
26. Moreover and conclusively, the parties themselves had positively agreed that the terms of the transfer were not agreed. That is the only way the parts of the notice and counter-notice I have quoted can sensibly be read. Given that express language it is impossible to say that they, by their conduct or impliedly or in some other way, must be taken to have agreed the terms of transfer.
27. It follows that I think the Judge was right and that this appeal should be dismissed.
28. I conclude by drawing the lesson from this case, Penman and Sinclair. When a party makes a reference it should ensure that all points not agreed are put before the LVT for determination at the outset. It should say what it wants. If even seemingly minor matters (e.g. the terms of the transfer in a case where these are likely to be routine) have not been positively agreed, the LVT should be asked to determine them. In practice such points will normally go away by agreement, but if they do not and the LVT is not asked, in effect, to make up the parties minds for them, the result is likely to be delay, extra cost and this sort of case.

Lord Justice Carnwath:

29. I agree, though with some misgivings. My working assumption would have been that, unless matters are specifically reserved before it, the tribunal should be able to treat them as no longer in dispute and therefore impliedly agreed. That would seem to accord with both the general scheme of the Act and with good practice. However, for the reasons given by Jacob LJ, I am persuaded that such a conclusion is not open to us. I agree with the lessons in his last paragraph. I would add that it would be advisable for the tribunal itself to satisfy itself at the beginning of the hearing what precisely remains in dispute, and to state the position in its decision.
30. It is worth recording also that the circumstances of the appeal are somewhat unusual. A decision the other way would have left the lessees free to make another application a year later. In a falling market that might have ordinarily seemed an attractive option. However, we were told that any such advantage would be nullified by the effects on the purchase price of the intervening decision of the Lands Tribunal in Cadogan v Sportelli (upheld by this court in October 2007: [2007] EWCA Civ 1042).

Lord Justice Tuckey:

31. I agree that this appeal should be dismissed for the reasons given by Jacob LJ and with the good advice to parties and the LVT given by Jacob LJ in paragraph 28 and Carnwath LJ in paragraph 29.
Appendix: Provisions of the Act as Amended

1 The right to collective enfranchisement

(8) In this Chapter "the relevant date", in relation to any claim to exercise the right to collective enfranchisement, means the date on which notice of the claim is given under section 13.

13 Notice by qualifying tenants of claim to exercise right

(1) A claim to exercise the right to collective enfranchisement with respect to any premises is made by the giving of notice of the claim under this section.

(2) A notice given under this section ("the initial notice")–

(a) must be given to the reversioner in respect of those premises; and

(b) must be given by a number of qualifying tenants of flats contained in the premises as at the relevant date which–

(i) is not less than two-thirds of the total number of such tenants, and

(ii) is not less than one-half of the total number of flats so contained;

and not less than one-half of the qualifying tenants by whom the notice is given must satisfy the residence condition.

(3) The initial notice must–

(a) specify and be accompanied by a plan showing–

(i) the premises of which the freehold is proposed to be acquired by virtue of section 1(1),

(ii) any property of which the freehold is proposed to be acquired by virtue of section 1(2)(a), and

(iii) any property of the person who owns the freehold of the specified premises over which it is proposed that rights (specified in the notice) should be granted by him in connection with the acquisition of the freehold of the specified premises or of any such property so far as falling within section 1(3)(a);

(b) contain a statement of the grounds on which it is claimed that the specified premises are, on the relevant date, premises to which this Chapter applies;

(c) specify–

(i) any leasehold interest proposed to be acquired under or by virtue of section 2(1)(a) or (b), and

(ii) any flats or other units contained in the specified premises in relation to which it is considered that any of the requirements in Part II of Schedule 9 to this Act are applicable;

(d) specify the proposed purchase price for each of the following, namely–

(i) the freehold interest in the specified premises,

(ii) the freehold interest in any property specified under paragraph (a)(ii), and

(iii) any leasehold interest specified under paragraph (c)(i);

(e) state the full names of all the qualifying tenants of flats contained in the specified premises and the addresses of their flats, and contain the following particulars in relation to each of those tenants, namely–

(i) such particulars of his lease as are sufficient to identify it, including the date on which the lease was entered into, the term for which it was granted and the date of the commencement of the term,

(ii) such further particulars as are necessary to show that the lease is a lease at a low rent, and

(iii) if it is claimed that he satisfies the residence condition, particulars of the period or periods falling within the preceding ten years for which he has occupied the whole or part of his flat as his only or principal home;

(f) state the full name or names of the person or persons appointed as the nominee purchaser for the purposes of section 15, and an address in England and Wales at which notices may be given to that person or those persons under this Chapter; and

(g) specify the date by which the reversioner must respond to the notice by giving a counter-notice under section 21.

(4) …

(5) The date specified in the initial notice in pursuance of subsection (3)(g) must be a date falling not less than two months after the relevant date.

(6) …

(7) …

(8) …..

(9) Where any premises have been specified in a notice under this section and–

(a) that notice has been withdrawn, or is deemed to have been withdrawn, under or by virtue of any provision of this Chapter …, or

(b) ….,

no subsequent notice which specifies the whole or part of those premises may be given under this section within the period of twelve months beginning with the date of the withdrawal or deemed withdrawal of the earlier notice or with the time when the order under section 23(1) becomes final (as the case may be).

(10) …

(11) Where a notice is given in accordance with this section, then for the purposes of this Chapter the notice continues in force as from the relevant date–

(a) until a binding contract is entered into in pursuance of the notice, or an order is made under section 24(4)(a) or (b) or 25(6)(a) or (b) providing for the vesting of interests in the nominee purchaser;

(b) if the notice is withdrawn or deemed to have been withdrawn under or by virtue of any provision of this Chapter or under section 74(3), until the date of the withdrawal or deemed withdrawal, or

(c) until such other time as the notice ceases to have effect by virtue of any provision of this Chapter.

(12) …

(13) …

21 Reversioner´s counter-notice

(1) The reversioner in respect of the specified premises shall give a counter-notice under this section to the nominee purchaser by the date specified in the initial notice in pursuance of section 13(3)(g).

(2) The counter-notice must comply with one of the following requirements, namely–

(a) state that the reversioner admits that the participating tenants were on the relevant date entitled to exercise the right to collective enfranchisement in relation to the specified premises;

(b) state that, for such reasons as are specified in the counter-notice, the reversioner does not admit that the participating tenants were so entitled;

(c) ….

(3) If the counter-notice complies with the requirement set out in subsection (2)(a), it must in addition–

(a) state which (if any) of the proposals contained in the initial notice are accepted by the reversioner and which (if any) of those proposals are not so accepted, and specify–

(i) in relation to any proposal which is not so accepted, the reversioner´s counter-proposal, and

(ii) any additional leaseback proposals by the reversioner;

(b) …

(c) ..

(d) …

(e) include a description of any provisions which the reversioner or any other relevant landlord considers should be included in any conveyance to the nominee purchaser in accordance with section 34 and Schedule 7.

(4) …

(5) ...

(6) Every counter-notice must specify an address in England and Wales at which notices may be given to the reversioner under this Chapter.

(7) …

(8) ….

24 Applications where terms in dispute or failure to enter contact

(1) Where the reversioner in respect of the specified premises has given the nominee purchaser—

(a) a counter-notice under section 21 complying 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 22(3) or section 23(5) or (6),

but any of the terms of acquisition remain in dispute at the end of the period of two months beginning with the date on which the counter-notice or further counter-notice was so given, a leasehold valuation tribunal may, on the application of either the nominee purchaser or the reversioner, 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 nominee purchaser.

(3) Where—

(a) the reversioner has given the nominee purchaser such a counter-notice or further counter-notice as is mentioned in subsection (1)(a) or (b), and

(b) all of the terms of acquisition have been either agreed between the parties or determined by a leasehold valuation tribunal under subsection (1),

but a binding contract incorporating those terms has not been entered into by the end of the appropriate period specified in subsection (6), the court may, on the application of either the nominee purchaser or the reversioner, make such order under subsection (4) as it thinks fit.

(4) The court may under this subsection make an order—

(a) providing for the interests to be acquired by the nominee purchaser to be vested in him on the terms referred to in subsection (3);

(b) providing for those interests to be vested in him on those terms, but subject to such modifications as—

(i) may have been determined by a leasehold valuation tribunal, on the application of either the nominee purchaser or the reversioner, to be required by reason of any change in circumstances since the time when the terms were agreed or determined as mentioned in that subsection, and

(ii) are specified in the order; or

(c) providing for the initial notice to be deemed to have been withdrawn at the end of the appropriate period specified in subsection (6);

and Schedule 5 shall have effect in relation to any such order as is mentioned in paragraph (a) or (b) above.

(5) Any application for an order under subsection (4) 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 parties, the period of two months beginning with the date when those terms were finally so agreed;

(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 that subsection becomes final, or

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

(7) In this section "the parties" means the nominee purchaser and the reversioner and any relevant landlord who has given to those persons a notice for the purposes of paragraph 7(1)(a) of Schedule 1.

(8) In this Chapter "the terms of acquisition", in relation to a claim made under this Chapter, means the terms of the proposed acquisition by the nominee purchaser, whether relating to—

(a) the interests to be acquired,

(b) the extent of the property to which those interests relate or the rights to be granted over any property,

(c) the amounts payable as the purchase price for such interests,

(d) the apportionment of conditions or other matters in connection with the severance of any reversionary interest, or

(e) the provisions to be contained in any conveyance,

or otherwise, and includes any such terms in respect of any interest to be acquired in pursuance of section 1(4) or 21(4).

32. Deemed withdrawal of initial notice

(2) Where-

(a) in a case to which subsection (1) of section 24 applies, no application under that subsection is made within the period specified in subsection (2) of that section, or

(b) in a case to which subsection (3) of that section applies, no application for an order under subsection (4) of that section is made within the period specified in subsection (5) of that section,

the initial notice shall be deemed to have been withdrawn at the end of the period referred to in paragraph (a) or (b) above (as the case may be).

34 Conveyance to nominee purchaser

(1) Any conveyance executed for the purposes of this Chapter, being a conveyance to the nominee purchaser of the freehold of the specified premises [, of a part of those premises] or of any other property, shall grant to the nominee purchaser an estate in fee simple absolute in those premises [, that part of those premises] or that property, subject only to such incumbrances as may have been agreed or determined under this Chapter to be incumbrances subject to which that estate should be granted, having regard to the following provisions of this Chapter.

(9) Except to the extent that any departure is agreed to by the nominee purchaser and the person whose interest is to be conveyed, any conveyance executed for the purposes of this Chapter shall-

(a) as respects the conveyance of any freehold interest, conform with the provisions of Schedule 7, and

(b) as respects the conveyance of any leasehold interest, conform with the provisions of paragraph 2 of that Schedule (any reference in that paragraph to the freeholder being read as a reference to the person whose leasehold interest is to be conveyed [, and with the reference of the covenants for title implied under Part I of the Law of Property (Miscellaneous Provisions) Act 1994 being read as excluding the covenant in section 4(1)(b) of that Act (compliance with terms of lease)]).

(10) Any such conveyance shall in addition contain a statement that it is a conveyance executed for the purposes of this Chapter; and any such statement shall comply with such requirements as may be prescribed by rules made in pursuance of section 144 of the Land Registration Act 1925 (power to make general rules).

38 Interpretation of Chapter I

(4) Any reference in this Chapter to agreement in relation to all or any of the terms of acquisition is a reference to agreement subject to contract.