Riverside Crem 3 Limited v Sol Unsdorfer & Ors

An appellate tribunal may permit a new point of law to be raised, including one described as jurisdictional, but permission is not automatic. The tribunal must consider whether the point requires further evidence or would have changed the conduct of the hearing below. Even a pure point of law should ordinarily be admitted only if the opposing parties have had adequate time to answer it, have not acted to their detriment in reliance on its earlier omission, and can be protected in costs.

Statutory procedural requirements imposed for a party’s benefit may be waived. A failure to satisfy such a requirement does not necessarily deprive a tribunal of jurisdiction in the fundamental sense. Fairness, finality and the overriding objective may justify refusing a new point where the appellant gave assurances inconsistent with it, other parties relied on those assurances, relevant facts were not investigated, and no cogent explanation for the omission is given.

The First-tier Tribunal varied a management order made under Landlord and Tenant Act 1987 so that Riverside Crem 3 Ltd, as immediate landlord of a commercial tenant, could be required to meet a shortfall in contributions for shared estate services if that tenant did not pay.

Riverside appealed. It advanced for the first time a contention that, because it acquired its interest after the original management order, the First-tier Tribunal lacked power to vary that order so as to bind it. It relied on Urwick v Pickard [2019] UKUT 365 (LC). The respondents objected to the new point, relying on Riverside’s earlier assurances that it was already bound by the order and on the different steps they would have taken had the point been made below.

The central issue was whether Riverside should be permitted to raise that new point on appeal.

1. Appeal dismissed. Riverside was refused permission to rely on its sole ground of appeal, which had not been advanced before the First-tier Tribunal. The order varying the management order therefore remained in force.

2. The applicable appellate principles required caution before permitting a new point. A point requiring further evidence, or which would have caused the hearing below to be conducted differently, will generally not be permitted. A pure point of law, including one concerning jurisdiction, is not exempt from that discipline. The tribunal applied the criteria stated in Singh v Dass [2019] EWCA Civ 360, together with the need for a cogent explanation identified in Prudential Assurance Co Ltd v HMRC [2016] EWCA Civ 376.

3. The proposed point was not a challenge to the First-tier Tribunal’s fundamental statutory authority to appoint or vary the appointment of a manager under Landlord and Tenant Act 1987. At most, it concerned procedural preconditions. Requirements enacted for a party’s protection may generally be waived, as illustrated by Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] A.C. 850. The Tribunal did not need finally to determine whether the notice requirement in section 22 could be waived.

4. In any event, it would be unfair to admit the point. Riverside had represented that the existing order bound it as successor in title. Circus had withdrawn its application to join Riverside and vary the order in reliance on that representation. Had Riverside taken the point earlier, the manager and leaseholders could have pursued a fresh application, served notice if necessary, sought an alternative variation against other landlords, or obtained contractual protection. Further factual questions, including whether Riverside was a transferee for value, would also have been investigated.

5. Riverside offered no cogent explanation for omitting the point. Those circumstances, and the overriding objective, justified refusal. The contingent applications for permission to cross-appeal did not arise.

• Upper Tribunal (Lands Chamber): dismissed Riverside’s appeal against the First-tier Tribunal’s variation of the management order.
• First-tier Tribunal (Property Chamber): on 28 April 2021 varied the management order to permit recovery from Riverside of service-charge shortfalls owed by its commercial tenant.