Clarise Properties Ltd v Rees & Anor

The statutory second-appeal threshold applies to an appeal from the Upper Tribunal only where the Upper Tribunal decision was made on an appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 from the First-tier Tribunal. A decision on appeal from a tribunal outside that statutory scheme is an ordinary appeal. Specialist tribunals may receive particular respect, but the second-appeal test should not be imported where the grounds concern ordinary lease construction rather than specialist expertise. Clear legislative provision is required to remove an existing appeal right retrospectively. On an ordinary permission application, permission may be granted where the proposed grounds have a real prospect of success and are arguable, non-trivial and not obviously wrong.

Clarise Properties Limited sought permission to appeal from a decision of the Upper Tribunal (Lands Chamber) dated 21 November 2014, which had followed a decision of the Land and Leasehold Valuation Tribunal for the Wales Rent Assessment Committee dated 12 May 2004. The proposed appeal concerned construction of a lease dated 7 June 1991. The respondent argued that the second-appeal test in the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 should apply. The Court of Appeal had to determine whether this was a second appeal and, if not, whether the ordinary permission test was satisfied.

Permission to appeal was granted. The Court held that the application was an ordinary appeal, not a second appeal.

1. Section 13 of the Tribunals, Courts and Enforcement Act 2007, read with section 11, confines the statutory second-appeal route to applications concerning a decision of the Upper Tribunal on an appeal from the First-tier Tribunal. The LVT Wales was not the First-tier Tribunal created by the 2007 Act. The application therefore did not fall within section 13(6) and the second-appeal test in paragraph 2 of the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 did not apply.
2. The later transfer of English tribunal functions did not alter the position in Wales. The statutory distinction between appeals from the First-tier Tribunal and appeals from other tribunals showed that Parliament had not removed existing appeal rights in the latter category. The Welsh and English arrangements could not simply be assimilated.
3. The court should respect specialist tribunal decisions and may in some cases apply second-appeal criteria by analogy. That approach was inappropriate here because the proposed grounds concerned construction of a lease and did not engage the specialist expertise formerly exercised by the Lands Tribunal. The statutory scheme also opposed importing the second-appeal test.
4. The court’s conclusion was reinforced by the principle applied in R (ToTel Ltd) v the FTT [2012] EWCA Civ 1401 and derived from Colonial Sugar Refining Company Limited v Irving [1906] AC 360: clear legislative language is required before an existing appeal right is treated as retrospectively removed.
5. The ordinary permission test was whether the proposed appeal had a real prospect of success. The lease-construction points were arguable, non-trivial and not obviously wrong. Lady Justice Arden granted permission, and Sir Bernard Rix agreed.

1. Court of Appeal (Civil Division): On 29 July 2015, the court held that the application was an ordinary appeal and granted permission to appeal: [2015] EWCA Civ 1118.
2. Upper Tribunal (Lands Chamber): Decision dated 21 November 2014, on appeal from the LVT Wales decision.
3. Land and Leasehold Valuation Tribunal for the Wales Rent Assessment Committee: Decision dated 12 May 2004.