O Twelve Baytree Limited, R (On the Application Of) v The Rent Assessment Panel

An applicant cannot unilaterally terminate tribunal proceedings merely by notifying the tribunal of an intention to withdraw. Where the governing statute recognises withdrawal but does not specify its procedure, the tribunal retains jurisdiction until it accepts the withdrawal and brings the proceedings to an end. In proceedings under section 84(3) of the Commonhold and Leasehold Reform Act 2002, the tribunal will usually dismiss the application on withdrawal, preserving the applicant’s liability for recoverable proceedings costs. In rare cases, it may determine the underlying merits, having regard to the stage reached, the reasons for withdrawal and any prejudice caused by termination without a merits determination.

The claimant, the freeholder of Beckett House, challenged the Rent Assessment Panel’s conclusion that it had become functus officio after an RTM company withdrew its application under section 84(3) of the Commonhold and Leasehold Reform Act 2002. The RTM company had served a claim notice, received a counter-notice disputing its entitlement, and applied for a tribunal determination. Shortly before the listed hearing, it notified the tribunal that it wished to withdraw. The claimant argued that the tribunal retained jurisdiction to determine the substantive entitlement and costs.

The central issue was whether notification of withdrawal automatically ended the proceedings or whether tribunal consent and a consequential order were required.

1. Claim allowed. The tribunal erred in concluding that it had no jurisdiction merely because the RTM company had notified it of its wish to withdraw.
2. Sections 86 and 87 of the Commonhold and Leasehold Reform Act 2002 distinguish withdrawal of a claim notice before tribunal proceedings from withdrawal of an application after a counter-notice and section 84(3) proceedings have begun. Section 87 recognises that an application may be withdrawn and fixes the date on which the claim notice is deemed withdrawn, but does not state how the application is to be withdrawn.
3. The costs provisions were significant. Section 88(3) makes proceedings costs recoverable where the tribunal dismisses the application, while section 89(2) preserves liability for costs incurred down to the withdrawal of the application. Those provisions indicate that withdrawal does not itself terminate the proceedings. Tribunal action is required, ordinarily by dismissing the application on withdrawal.
4. The approach in Hanson v Church Commissioners for England [1978] 1 Q.B. 823 and Silkstone v Tatnall [2012] 1 W.L.R. 400 supported that construction. A party cannot be compelled to continue advancing a case it no longer wishes to pursue, but its unilateral act cannot determine the tribunal’s jurisdiction or prejudice the other party. The tribunal must decide how to deal with the withdrawal.
5. The usual course will be to dismiss the application on withdrawal, thereby preserving the costs consequences and causing the claim notice to be deemed withdrawn. In rare cases, especially where proceedings are advanced or there would be prejudice, the tribunal may determine the underlying entitlement. The decision is ultimately for the tribunal in light of all relevant circumstances.

Not stated in the judgment.