Martin White v Sarah Brindley

An expert tribunal may raise an issue on its own initiative, but only where it concerns jurisdiction, a matter which legislation requires the tribunal to address, or clarification of a party’s case. The proceedings remain adversarial. After raising a new point, the tribunal must not take over the conduct of it or decide the case on that basis where the party benefiting from the point declines to pursue it. The issue must instead be properly pleaded and argued, with an opportunity for the other party to respond. A tribunal which decides an unpleaded and abandoned issue thereby acts unfairly and outside the bounds of its discretion.

The appellant landlord applied to the First-tier Tribunal under section 27A of the Landlord and Tenant Act 1985 for a determination of service charges payable by the respondent tenant. The respondent challenged the reasonableness of management and insurance charges, but did not contend that the lease did not permit recovery of the insurance premium.

The FTT invited submissions on contractual recoverability. Neither party pursued that issue, but the FTT nevertheless concluded that the insurance charge was not payable under the lease. Permission to appeal was granted on the issue whether it was unfair and improper for the FTT to decide the case on that basis.

1. The appeal was allowed on the procedural fairness ground. The FTT’s decision concerning the insurance premiums and its order for reimbursement of half the application fee were set aside.

2. An expert tribunal may raise matters of its own volition. In service charge proceedings, that function reflects the protective purpose of the legislation. However, the proceedings remain adversarial. Under Regent Management Limited v Jones [2010] UKUT 369 (LC), the tribunal’s power to raise a point does not permit it to conduct a party’s case.

3. As explained in Sovereign Network Homes v Hakobyan [2025] UKUT 115 (LC), a new point may properly be raised only where it concerns jurisdiction, a matter which the statute requires the tribunal to address, or clarification of the scope of a party’s case. The latter category is narrow. A point which falls outside the pleaded case and cannot sensibly be treated as clarification should not be introduced.

4. Once a new point has been properly raised, the tribunal must remain impartial. The party who benefits from it must decide whether to pursue it. If it does so, the point must be pleaded, any amendment must be considered after hearing both parties, and the opposing party must have a fair opportunity to respond. If the party declines to pursue the point, the matter should end there.

5. Here, contractual liability for the insurance premium was not in issue. It was not necessary to clarify the parties’ cases, and the respondent did not pursue the point when invited to do so. The FTT therefore exceeded its discretion by deciding the application on that basis. Its conduct was unfair and amounted to descending into the arena and becoming an advocate for the tenant, although there was no finding of personal bias.

6. The Upper Tribunal substituted a decision that the insurance premiums were payable in full, because the FTT had rejected the challenges actually raised by the respondent. The respondent was ordered to pay the appellant the whole of the £114 application fee within 28 days. The lease-construction ground was not determined.

• First-tier Tribunal (Property Chamber): By a decision dated 10 November 2025, the FTT found the management charge payable but held that the lease did not require payment of the insurance costs, and ordered reimbursement of half the application fee.
• Upper Tribunal (Lands Chamber): The appeal was allowed on procedural fairness grounds. The insurance and fee decisions were set aside and substituted.