The Wellcome Trust Ltd v 19-22 Onslow Gardens Freehold

A statutory requirement that an appeal be made only with permission ordinarily renders a refusal of permission final. A further appeal exists only where legislation expressly creates it.

The express exclusion in section 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007 for refusals under section 11(4)(b) did not impliedly confer a right of appeal from a refusal under section 175(2) of the Commonhold and Leasehold Reform Act 2002. The availability of limited judicial review does not create appellate jurisdiction.

A Leasehold Valuation Tribunal gave a decision on 21 September 2011. The Wellcome Trust Ltd sought permission from the Upper Tribunal (Lands Chamber) to appeal under section 175(2) of the Commonhold and Leasehold Reform Act 2002. The President refused permission on 3 January 2012 and later refused permission to appeal to the Court of Appeal.

The appellant both sought permission to appeal and commenced a judicial-review claim. The Court of Appeal considered only the jurisdictional question, not the merits: whether the refusal could be challenged by appeal under CPR Part 52 or only by an application for judicial review in the Administrative Court.

1. Application refused. Sullivan LJ, with whom Lloyd LJ agreed, held that there was no right of appeal to the Court of Appeal from the Upper Tribunal’s refusal of permission to appeal under section 175(2) of the Commonhold and Leasehold Reform Act 2002.
2. The principle in Lane v Esdaile, [1981] AC 210, applied. Where an appeal requires permission, a refusal is not itself a decision carrying a further appeal unless the statute expressly provides otherwise. That principle had already been applied to an LVT appeal by the Lands Tribunal in R (Sinclair Investments Kensington Limited) v Lands Tribunal, [2004] EWHC 1910 (Admin).
3. Section 13 of the Tribunals, Courts and Enforcement Act 2007 did not alter that result. Its express exclusion of Upper Tribunal permission decisions under section 11(4)(b) did not create a new appeal right for refusals under the separate section 175 regime. Such a legislative intention could not be implied merely because section 175(2) was not listed among the excluded decisions.
4. R (Cart) v Upper Tribunal, [2011] UKSC 28, did not assist the appellant. Its recognition of limited judicial review for otherwise unappealable Upper Tribunal decisions was consistent with there being no statutory appeal. Practical concerns about finality and time limits could not displace the statutory position.
5. The challenge to the President’s refusal had to be made by an application for permission to apply for judicial review in the Administrative Court.

• Court of Appeal (Civil Division) — Held that the refusal of permission under section 175(2) was not appealable and that any challenge lay by judicial review; application refused: [2012] EWCA Civ 1024.
• Upper Tribunal (Lands Chamber) — The President refused permission to appeal from the Leasehold Valuation Tribunal on 3 January 2012 under the Commonhold and Leasehold Reform Act 2002, and refused permission to appeal to the Court of Appeal on 30 March 2012.
• Leasehold Valuation Tribunal — Gave the underlying decision on 21 September 2011.