Case No. UKUT-62-(LC)

20.The FTT found that at the date the claim was made notices inviting participation had not been served on one of the two qualifying tenants of flat 121, or on the qualifying tenants of flats 30 and 154.21.Having first directed itself by reference to the decision of the Court of Appeal in Elim Court RTM Company Ltd v Avon Freeholds Ltd [2017] EWCA Civ 89, the FTT decided that the relevant question was whether the failure to serve notices on all the qualifying tenants was “serious enough, in the context of the applicant’s entire claim, to invalidate it.” It posed a series of subsidiary questions including: had the omissions caused difficulty; were they likely to have serious consequences; could they be treated as trivial; could the invalidity be easily rectified by undertaking the process again?22.The FTT considered that repeating the statutory procedures would not be simple, as flats would have been transferred since the claim had been made and identifying new leaseholders would be complicated. There was no evidence that the leaseholders who had not been invited to participate had been disadvantaged, and the FTT was satisfied that the RTM company had not known they were qualifying tenants when it served its notices of invitation to participate. It therefore determined that the claim should not fail because of the failure to serve the required notices.23.It reached the same conclusion regarding the suggested defects in the claim notice. It had not been suggested that too few members had been named in the claim notice to satisfy the threshold in section 79(5). Some names had been omitted by the company because it had not been sure if all of those recorded in the register of members were qualifying tenants on the date the claim notice was given. The FTT said it had not been persuaded “that any of the omissions were incorrect”, but even if it had been it would not have regarded them as fatal to the validity of the claim, for the same reasons as it had given in relation to the notices of invitation (particularly the difficulty it perceived in repeating the procedure and bringing a further claim).