Cawsand Fort Management Co Ltd v Stafford & Ors

CPR 52.13 does not directly govern an appeal from a Lands Tribunal decision, even where the tribunal itself acted appellate, because the rule concerns appeals from County Court or High Court decisions. The Court of Appeal may nevertheless adopt a similar cautious approach where a specialist tribunal operates within an independent two-tier structure. That caution must be balanced against statutory rights of appeal, particularly in private litigation. Permission is appropriate where the proposed appeal is arguable, raises a short statutory construction issue, and does not require specialist expertise.

Tenants of residential units at Cawsand Fort obtained an order under section 24 of the Landlord and Tenant Act 1987 appointing a manager for the Fort. The freeholder accepted the appointment in principle but argued that the order extended to amenity land and rights of way outside the curtilages of the buildings.

The Lands Tribunal decided the issue against the freeholder. Permission to appeal was refused on paper by Richards LJ on the basis that the proposed appeal resembled a second appeal. The Court of Appeal considered a renewed application for permission. The central questions were whether CPR 52.13 applied directly and whether permission should nevertheless be granted.

Lord Justice Chadwick granted the renewed application for permission to appeal, and Lord Justice Carnwath agreed. The Court did not determine whether the management order lawfully extended to amenity or servient land outside the building curtilages.

1. CPR 52.13. The rule did not directly govern the application. It concerns an appeal to the Court of Appeal from a County Court or High Court decision made on appeal. The Lands Tribunal was neither, although it had itself acted in an appellate capacity.
2. Approach to tribunal appeals. In an appropriate case, the Court may adopt a similar cautious approach where a specialist tribunal has heard an appeal within an independent two-tier structure. The principle explained in Cooke v The Secretary of State for Social Security [2001] EWCA Civ 734 and [2002] 3 All ER 279 remained relevant. The practice was also noted in Napp Pharmaceutical Holdings Limited v The Director General of Fair Trading [2002] EWCA Civ 796.
3. Grant of permission. The proposed appeal was arguable, raised a short question of statutory construction, and did not require the Lands Tribunal’s specialist expertise. The Court also had to balance caution in reviewing a specialist tribunal against caution before depriving parties in private litigation of statutory appeal rights. The Access to Justice Act 1999 imposed limitations on those rights, but Parliament and the rule-making body had not extended the second-appeal restriction in CPR 52.13 to tribunal appeals. The Court should not introduce that restriction of its own motion.

Order: application granted.

• Court of Appeal (Civil Division)—on 21 February 2007, the renewed application for permission to appeal was granted.
• Lands Tribunal—on 7 November 2006, decided the issue against the freeholder on an appeal from the Leasehold Valuation Tribunal.
• Leasehold Valuation Tribunal for the Southern Rent Assessment Panel—on 5 October 2005, appointed a manager for the property for three years under section 24 of the Landlord and Tenant Act 1987.