Anthony Orchard & Anor v Alison Mooney & Ors

A tribunal-appointed manager under Part 2 of the Landlord and Tenant Act 1987 must meet high professional standards and act with candour. A tribunal considering discharge under section 24(9) must assess whether discharge is just and convenient in all the circumstances. A decision based on materially misleading evidence must be set aside. On redetermination, serious lack of candour did not make discharge just or convenient where retaining the manager offered the realistic prospect of completing essential works promptly.

The appellants were leaseholders of one of three flats in a converted Victorian house. They appealed against the First-tier Tribunal’s dismissal of their application under section 24(9) of the Landlord and Tenant Act 1987 to discharge the tribunal-appointed manager.

The appellants relied on a later surveyor’s report and emails showing that the manager’s evidence about the advice she had received and her dealings with another leaseholder was materially inaccurate. The central issues were whether the fresh evidence should be admitted, whether the FTT had applied the correct approach to discharge, and whether the management order should be discharged or remade.

1. The appeal was allowed and the FTT’s decision was set aside. The fresh evidence satisfied the three Ladd v Marshall conditions: it could not reasonably have been obtained for the original hearing, it could probably have materially influenced the result, and it was apparently credible. Those principles also govern appeals to the Upper Tribunal.
2. The FTT had assessed impartiality and transparency without knowledge of material facts. The manager’s latest surveyor’s report contradicted her evidence, while her correspondence showed that information had been shared with one leaseholder but withheld from the appellants. The decision therefore contained an identifiable flaw and had to be set aside.
3. A tribunal-appointed manager is expected to adhere to the highest professional standards, including integrity and candour. Serious criticisms of the manager must be investigated with care.
4. The FTT had not applied the wrong test. An application under section 24(9) should be approached by asking whether discharge is just and convenient in all the circumstances. The practical consequences for future management may be considered, although section 24(9A)’s additional recurrence condition applies only where the application is made by a relevant person.
5. The Upper Tribunal remade the decision rather than remitting it. Although the manager’s lack of candour was serious, the necessary works had since been identified, funding was potentially available, and retaining her offered the best realistic prospect of completing the works before the order expired. The application to discharge the management order was dismissed.

• Upper Tribunal (Lands Chamber) allowed the appeal, set aside the FTT’s decision and redetermined the application by dismissing the application to discharge the management order.
• First-tier Tribunal (Property Chamber) dismissed the discharge application on 22 October 2021 and refused permission to appeal on 26 November 2021.