Sinclair Gardens Investments (Kensington) Ltd v Ray

A decision of the Upper Tribunal on valuation is not deprived of evidential value merely because it is not designated a guidance case. Under the tribunal evidence rules, it is admissible in later proceedings. Its weight is for the later tribunal, assessed by reference to the extent to which it addresses general issues rather than particular facts and the cogency of its reasoning. That assessment is factual, not a point of law for an appellate court. A First-tier Tribunal may combine the earlier decision with expert evidence, the decision’s practical effect and its specialist knowledge. The Court of Appeal will intervene only for an error of law, including perversity or absence of evidence.

The respondent claimed an extended lease of her flat under the Leasehold Reform, Housing and Urban Development Act 1993. The First-tier Tribunal adopted a deferment rate of 5.75%, relying in part on the Upper Tribunal’s decision in Zuckerman v Trustees of the Calthorpe Estate. The Upper Tribunal’s decision is reported at [2014] UKUT 0079 (LC).

Permission to appeal was granted on the question whether an Upper Tribunal decision that was not a guidance case was merely factual and should not be followed by the First-tier Tribunal without more. The central issue was the status and weight of such a decision in a later valuation case.

1. Appeal dismissed. Lewison LJ gave the leading judgment, with which Kitchin LJ and Moore-Bick LJ agreed.
2. A previous Upper Tribunal decision is admissible evidence in later proceedings. Schedule 5 paragraph 10 of the Tribunal Courts and Enforcement Act 2007 permits modification of ordinary evidential rules, and rule 16(2)(a)(i) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 permits the Tribunal to admit evidence whether or not it would be admissible in a civil trial.
3. The absence of a formal designation as a starred or guidance case does not deprive an Upper Tribunal decision of value. Starred decisions concern points of law and bind inferior tribunals. Country guidance decisions provide a useful analogy, but the Lands Chamber had no equivalent formal designations. The lack of guidelines from the Upper Tribunal therefore did not prevent a later tribunal from considering an earlier decision.
4. Absent applicable guidelines, the weight to be given to an earlier decision is for the later tribunal. Relevant considerations include whether the decision addresses general issues rather than facts peculiar to the case and the cogency of its reasoning. The question is one of fact, not law, and does not itself generate a right of appeal to the Court of Appeal.
5. The First-tier Tribunal was entitled to consider Zuckerman v Trustees of the Calthorpe Estate, together with expert evidence, evidence of negotiated settlements and its own specialist knowledge. Its choice of a 5.75% deferment rate was not unsupported by evidence and was not perverse. The fact that the rate might have been right or wrong on the facts did not disclose an error of law.
6. An argument that Zuckerman was wrongly decided was not open on the appeal because it had not been advanced below, was outside the permitted ground of appeal and was absent from the appellant’s skeleton argument.

1. Court of Appeal (Civil Division) The appeal from the Upper Tribunal was dismissed.
2. Upper Tribunal (Lands Chamber) The decision under appeal was reported at [2014] UKUT 0079 (LC). Permission to appeal to the Court of Appeal was granted.
3. First-tier Tribunal The tribunal determined the deferment rate for the lease extension at 5.75%, relying on the earlier Upper Tribunal decision and additional valuation evidence.