Canary Riverside Estate Management Limited & Ors v Leaseholders Represented by The Residents' Association of Canary Riverside

An appellate tribunal should be cautious about permitting a new point which was not argued below. It should not generally allow a point requiring new evidence or which would have altered the conduct of the first-instance hearing. Even a pure point of law should be admitted only where the opposing party has adequate time to address it, has not suffered detriment from the earlier omission, and can be protected in costs.

A case-management appeal is not an opportunity to determine substantive issues which the first-instance tribunal has not considered, or to revisit the appellate tribunal’s own earlier decision. Where parties agreed that linked applications required evidence and should be dealt with at a final hearing, directions listing them for that hearing were a permissible exercise of case management.

The appellants challenged directions made by the First-tier Tribunal, Property Chamber, concerning applications to vary a management order made under section 24 of the Landlord and Tenant Act 1987. The applications concerned the relationship between the manager’s functions and building-safety responsibilities under the Building Safety Act 2022, including remediation works.

The FTT directed that the linked applications should be determined together at a final hearing after evidence had been exchanged. On appeal, the appellants advanced a statutory analysis which had not been argued before the FTT and sought summary determination without evidence. The central issue was whether the FTT had erred in law by managing the applications in that way.

1. Appeal dismissed. The FTT had dealt with the applications as a case-management hearing, consistently with the parties’ position that the applications were linked, required evidence and could not be determined immediately.
2. The FTT was entitled to conclude that the issue of recurrence under section 24(9A) of the Landlord and Tenant Act 1987 required evidence likely to overlap with the evidence at the final hearing. It was also entitled to assess the asserted prosecution risk and regard it as remote on the material before it.
3. The central statutory argument advanced on appeal had not been presented to the FTT. The appellate tribunal therefore declined to determine it. The relevant principles, summarised in Singh v Dass [2019] EWCA Civ 360, require caution where a new point may require new evidence or may have caused the trial to be conducted differently. A pure point of law should be admitted only where the opposing party has adequate time to respond, has not acted to its detriment, and can be protected in costs.
4. The appeal could not properly be used to revisit the judge’s earlier decision in Unsdorfer v Octagon Overseas Ltd [2024] UKUT 59 (LC), or to obtain a preliminary ruling which would pre-empt the FTT’s determination of the substantive applications. The FTT’s first opportunity to decide the statutory relationship and the future functions of the manager would be at the listed final hearing.

• First-tier Tribunal, Property Chamber: directed that the linked applications concerning variation of the management order and the manager’s directions be heard together at a final hearing.
• Upper Tribunal (Lands Chamber): dismissed the appeal against those case-management directions.