Cowling v Worcester Community Housing Ltd

On a second appeal, permission is available only where the proposed appeal raises an important point of principle or practice, or there is another compelling reason for it to be heard. Permission is not granted to reopen evidence-based findings on contractual terms, consultation or service-charge liability, or to reargue case-management complaints where the lower court dealt with the dispute fairly. A judge may consider litigation costs in deciding whether a modest dispute should proceed to a full trial without breaching natural justice. An extension of time was granted, but permission to appeal was refused.

A tenant challenged an order requiring possession of her dwelling-house and payment of service-charge arrears. The District Judge entered judgment for the landlord. On appeal, the County Court judge upheld the money judgment but adjourned the possession claim generally. Parallel proceedings before the First-tier Tribunal and Upper Tribunal concerned the service charge and the effect of the County Court judgment. The tenant renewed her application for permission to bring a second appeal, raising issues concerning consultation, the tenancy terms, case management, the character of the charge, natural justice and litigation costs. The central issue was whether the proposed appeal satisfied the second appeals test.

The court granted the extension of time, having regard to the parallel tribunal proceedings and difficulties affecting the applicant’s son. It nevertheless refused permission to appeal.

1. Second appeal threshold. Permission could be granted only if the proposed appeal raised an important point of principle or practice, or there was some other compelling reason for the appeal to be heard. None of the six grounds met that test.
2. Consultation and contractual findings. The County Court judge had considered the consultation requirements in paragraphs 2.7 and 2.8 of the tenancy document, the relevant correspondence and the digital-aerial consultation meeting. His finding that the landlord had followed the correct procedure was supported by material before him. The Court of Appeal had to focus on the findings and conclusions in the judgment, rather than observations made during the hearing. The extent or timing of consultation did not make the issue arguable on a second appeal.
3. Case management and fairness. The complaint that the District Judge should have made case-management directions instead of hearing the dispute could not succeed where the County Court judge had dealt with the dispute and the tenant had a fair opportunity to present her case. Forcelux Limited v Martyn Ewan Binnie [2009] EWCA Civ 854, particularly Warren J’s reasoning at paragraphs 32 to 34, was not relevant to that situation.
4. Service-charge liability. The County Court judge was entitled to construe the tenancy terms, reject the allegations that they had been added or falsified, and conclude that the landlord was entitled to levy the charge. Whether the charge was fixed or variable was immaterial because entitlement to levy it was independently decisive. The money judgment resolved both liability and the amount payable.
5. Natural justice and costs. The judge was entitled to consider the cost of litigating a dispute of modest financial scale. Resolving the dispute on the evidence and submissions did not breach natural justice.

• Court of Appeal (Civil Division) — On 3 December 2015, Lord Justice Lindblom granted an extension of time but refused the renewed application for permission to bring a second appeal. Permission had previously been refused on paper by Lewison LJ on 28 May 2015.
• Upper Tribunal (Lands Chamber) — On 9 September 2015, the Upper Tribunal considered the jurisdictional effect of the County Court’s money judgment on a possible assessment of the service charge.
• First-tier Tribunal (Property Chamber) — The tribunal accepted the County Court judge’s understanding of the tenancy terms and considered the service-charge issue in the context of the parallel proceedings.
• Combined Court sitting at Worcester — On 7 August 2014, His Honour Judge Pearce-Higgins Q.C. allowed the tenant’s appeal in part, upheld the service-charge money judgment and adjourned the possession claim generally.
• Worcester County Court — On 7 January 2014, District Judge Khan ordered possession and payment of £511.51 in service-charge arrears.