South v Trustees of the Phillimore Kensington Estate

On an appeal by way of case stated, the appellate court’s function is to determine the questions of law arising from the facts stated by the tribunal. It will not ordinarily obtain the tribunal’s notes of evidence, particularly where the application is made late and the decision adequately records the material evidence and findings. The court must apply the overriding objective in Civil Procedure Rules 1998, Part 1, including proportionality, expedition, fairness and saving expense. A party cannot use a late application for notes to improve or supplement the tribunal’s findings before the appeal.

The Trustees applied for directions requiring the Lands Tribunal to produce, approve or comment on notes of evidence and a colloquy concerning an expert valuer’s evidence. The application was made before Mrs South’s pending appeal from the Lands Tribunal’s determination of the enfranchisement premium. The Trustees argued that the notes were needed to address a challenge to the expert’s credibility and to the scope of the case stated. Mrs South opposed the application on grounds of lateness and procedural unfairness. The central issue was whether the court should obtain the notes for the just disposal of the forthcoming appeal.

1. Application dismissed. The application was made far too late. The Trustees had known for many months that they sought the notes, yet waited until shortly before the appeal hearing. Producing, transcribing, approving and considering the notes would cause disruption and expense and would place unacceptable pressure on the Lands Tribunal.
2. An appeal by way of case stated requires the appellate court to concentrate on the questions of law arising from the facts found or agreed and set out in the case stated. If material facts have been omitted, the proper course is to seek amendment of the case stated. There had been no such application.
3. The notes were not necessary for the just disposal of the appeal. The Lands Tribunal’s decision adequately summarised the correspondence, the alleged inconsistency in the expert’s evidence, her response, the instructions given to her and the tribunal’s acceptance of her explanation. The decision also showed that the tribunal understood that her credibility was in issue.
4. It would be inappropriate to permit the Trustees to improve upon the tribunal’s findings by obtaining the evidence notes. The requested questions to the tribunal member, including questions about the colloquy, were likewise inappropriate.
5. The approach in Blue Circle Industries Plc v West Midlands Council (1994) 34 RVR 210, at 212, that tribunal notes should not ordinarily be required and should be made available only in an exceptional case, was applied. Lord Justice Laws agreed entirely with Lord Justice Peter Gibson and emphasised the public interest in preserving the procedural integrity, clarity and economy of appeals of this kind. The application was dismissed with costs.

• Court of Appeal (Civil Division): dismissed the Trustees’ application for disclosure of the Lands Tribunal member’s notes and colloquy, with costs. The substantive appeal by Mrs South was to be heard subsequently.
• Lands Tribunal: on 23 March 2000, increased the enfranchisement premium determined by the Leasehold Valuation Tribunal from £2,000,075 to £2,395,000.
• Leasehold Valuation Tribunal: determined the enfranchisement premium payable for the freehold at £2,000,075.