Matthew Blake Jacobs v Chalcot Crescent (Management) Company Limited

In an adversarial civil trial, the court must determine the issues defined by the pleadings. It cannot decide the case on a distinct, unpleaded ground merely because evidence incidentally raises it. A late amendment raising such an issue should generally be refused where it would require the trial to be reopened and cause substantial prejudice.

A landlord considering consent to alterations may rely on legitimate property interests, but a refusal must be objectively reasonable. A concern about fire damage to the building’s structure requires appropriate expert support. Where a reasonable condition could protect the landlord’s interests, an outright refusal is unreasonable.

The appellant lessee appealed against an order of the County Court at Central London dated 8 June 2023. The lower court had declared that the respondent landlord had not unreasonably withheld consent to alterations to the appellant’s flat and that the works breached the lease covenant.

The appeal concerned whether the lower court had decided the case on an unpleaded concern about fire damage to the building’s structure; whether that concern was in fact a reason for refusal; whether it was objectively reasonable; and whether consent had been unreasonably delayed before the refusal letter of 16 July 2020.

1. Appeal allowed in part. The lower court was not entitled to decide the case in favour of the landlord on the basis of a freestanding concern about fire damage to the building’s structure. That issue had not been pleaded, identified at the start of trial, or properly explored in the evidence.
2. The adversarial principle requires parties to identify the issues so that each can respond to the case advanced by the other. A judge may invite reformulation of the issues, but must adjudicate on the issues actually pursued unless the pleadings are amended fairly and in time. Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041 was applied.
3. The appellant’s failure to object during closing submissions did not preclude the appeal. The alleged irregularity had not been clearly raised as a freestanding issue, and the responsibility to seek amendment lay substantially with the party seeking to rely on the new ground.
4. A late amendment at the end of the trial would have required further expert evidence and an adjournment. It would therefore have been contrary to the overriding objective and seriously prejudicial. The principles in Swain Mason v Mills and Reeve [2011] EWCA Civ 14 and Quah v Goldman Sachs International [2015] EWHC 759 (Comm) were applied.
5. Alternatively, if structural damage had been a reason for refusal, it was unreasonable to rely only on the opinion of a general building surveyor when he recognised that fire-engineering expertise was required. The landlord should also have considered a reasonable alternative, such as conditional consent requiring a misting system.
6. In an alteration-consent case, Landlord and Tenant Act 1988 s.1 did not apply. The lessee bore the burden of proving unreasonable withholding, and the landlord was not confined to reasons stated in the refusal letter, provided the reasons were properly established and pleaded.
7. The challenge based on delay by 24 April 2020 failed. Unreasonable delay does not itself establish withholding of consent, and the alleged earlier withholding had not been pleaded or properly explored below. Permission to appeal on Ground 3 was refused. The declaration below was set aside and replaced with a declaration that consent had been unreasonably withheld.

• County Court at Central London: On 8 June 2023, declared that consent had not been unreasonably withheld and that the works breached the lease covenant.
• Chancery Appeals: Appeal allowed on Grounds 1 and 5. The relevant order was set aside and replaced by a declaration that consent had been unreasonably withheld.