Roberts & Anor v Fernandez

Permission for a second appeal requires more than a case with a real prospect of success. The applicant must also identify an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the case, under Rule 52.13(2) of the Civil Procedure Rules.

Detailed disputes about leasehold valuation, including relativity, mortgageability, the no-Act world, onerous lease provisions, capitalisation rates and expert evidence, ordinarily belong to specialist tribunals. They do not become points of principle merely because the applicant challenges factual or evidential assessments, or seeks comparison with another tribunal decision. A possible error that could not affect the outcome is insufficient.

The applicants, joint freeholders, challenged the premium payable for the respondent’s statutory lease extension under the Leasehold Reform, Housing and Urban Development Act 1993. The First-tier Tribunal assessed the premium at £10,052. The Upper Tribunal altered the deferment and capitalisation rates but reached a figure only about £44 different and dismissed the appeal on the de minimis principle.

Sir Robin Jacob refused permission on the papers. The applicants renewed their application orally before the Court of Appeal, relying on arguments concerning relativity, mortgageability, the no-Act world, onerous lease provisions and capitalisation. The central issue was whether the proposed second appeal satisfied Rule 52.13(2) of the Civil Procedure Rules.

Application refused. The renewed application was for permission to bring a second appeal from the Upper Tribunal. It was not an appeal on the merits.

1. Under Rule 52.13(2) of the Civil Procedure Rules, an applicant for a second appeal must show both a real prospect of success and either an important point of principle or practice or some other compelling reason for the Court of Appeal to hear the case. There was no compelling reason here, so the decisive question was whether the proposed appeal raised an important point of principle or practice.
2. The proposed grounds were detailed valuation arguments of the kind regularly addressed by the Property Chamber of the First-tier Tribunal and the Lands Chamber of the Upper Tribunal. The Court of Appeal would not use a second appeal to rerun those arguments or interfere with specialist factual and evidential assessments.
3. Disputes about the graphs used to assess relativity, including whether they had been accepted without challenge, were matters for the tribunals. The same applied to arguments concerning mortgageability and the no-Act world, which the Upper Tribunal had taken into account.
4. The alleged misunderstanding of Millard Investments v Cadogan Estates (LON/LVT/1756/04) concerning a reference to 0.1 per cent rather than 1 per cent could not have affected the Upper Tribunal’s final decision. It therefore did not justify a second appeal. The Court of Appeal would not rerun the argument about an onerous lease supplement.
5. The Upper Tribunal was entitled to accept the surveyor’s evidence on the appropriate capitalisation rate. The applicants’ disagreement with that assessment did not raise a point of principle or practice. Nor would the Court of Appeal compare the decision concerning another flat with the decision under challenge.

The application for permission to appeal was refused.

• Court of Appeal (Civil Division): Sir Robin Jacob refused permission on the papers. On renewed oral application, Lord Justice Jackson refused permission: [2016] EWCA Civ 256.
• Upper Tribunal (Lands Chamber): On 23 March 2015, varied the deferment and capitalisation rates and dismissed the appeal on the de minimis principle. No citation was stated in the judgment.
• First-tier Tribunal (Property Chamber): On 19 November 2013, determined the premium for the lease extension at £10,052.