[2023] UKUT 135 (LC)

On 8 December 2019 the appellant, in his capacity as Secretary of the Association and with the authority of its committee, sent a request notice to the landlords. Service of a request notice is a procedure provided by the 2018 Regulations by which a tenants’ association may seek information from the landlord about qualifying tenants of the block or estate who are not already its members. The appellant included a list of the Association’s members with the request notice. He also questioned the circumstances in which the Residents’ Group had been recognised and formally requested that the landlords recognise the Association.

On the same date, 8 December 2019, the appellant, again acting with the authority of the committee, signed and submitted to the FTT an application for a certificate of recognition under section 29(1)(b), 1985 Act.

Before submitting the application, the Association’s committee had considered relevant guidance published by HM Courts & Tribunals Service (leaflet T545, which is available on the FTT’s website). That material explained that the FTT may not give a certificate of recognition if a certificate is already in force or if the tenants’ association represents fewer than 50% of the qualifying tenants. But it also described the circumstances in which those prohibitions do not apply (where the landlord has failed to comply with a tribunal order to provide information and an association represents a substantial number of qualifying tenants), and the circumstances in which an existing certificate may be cancelled (including where the certificate was obtained “by deception or fraud”). It is also relevant in this case that the leaflet states that once an application had been received “it will be checked by a case officer for completeness”.

The application filed by the appellant was in the FTT’s approved form for that purpose. He provided the name and address of the Association and his own name and address as its Secretary; he did not identify himself as the Association’s representative. The form requires the provision of a list of the members of the association, signed by each member, but the list provided by the appellant was not signed. It contained 111 names, many of whom were couples or resident at the same address. Elsewhere on the form it was stated that there were 361 houses and flats on the estate.

Although the standard form includes a statement of truth confirming that the maker of that statement believes the facts stated are true it does not contain any statement identifying the maker of the application. Neither the association for which recognition is sought, nor its secretary, are designated as the “applicant” and the person who signs the statement of truth is not additionally required to use any form of words such as “I apply on behalf of the members of the association” or “the members of the association apply” or “the association applies” for recognition.

The form submitted by the appellant included a narrative explanation expressed in the first-person plural (“we seek recognition …”) and he signed the statement of truth.

The same narrative referred to the landlords’ recognition of the Residents’ Group and suggested that it was not “an arm’s length or independent organisation” nor had it acted in the best interests of leaseholders, before explaining:

“For this reason we seek recognition from the court, or if the court determines otherwise, that the court consider, within this application, revoking the recognition granted by the landlord to [the Residents’ Group]. We can affirm that in all aspects of recognition criteria we meet such, bar percentage of membership, though we have now written to the landlord seeking disclosure of qualifying tenants other than our present membership base. We invite the court to consider the case of Rosslyn Mansions Tenants’ Association v Winstonworth Ltd (2015), in which it has been ruled that the court can look at all factors pertaining to the application, including the relationship and integrity of the landlord.”

Having received the application on 11 December 2019 the FTT gave directions on 4 February 2020. It did not suggest that the application was incomplete.

The FTT’s directions referred to the Association as the applicant and Mr Connell as its representative. They stated that the matter should be determined at a hearing and required the applicant to file a statement of case setting out the grounds of the application and specifying the total number of flats at the subject property and the proportion of tenants who were its members. Some of that information had already been supplied in the original application, in which the Association did not claim to represent 50% or more of the qualifying leaseholders.

The Association submitted a statement of case, as directed, on 25 February 2020. It was signed by the appellant expressly in his capacity as Secretary. It ran to 20 pages with more than 400 pages of supporting documents. The statement itself included a great deal of background information about the dissatisfaction of the members of the Association with how the estate was being run and about the circumstances in which it was suggested the Residents’ Group had come into existence. It also referred to the request notice served on the landlord on 8 December 2019 and recorded that no answer had yet been received.

In a section headed “the basis for recognition” it was stated that the Association had 77 members who were qualifying tenants representing 77 of the 361 dwellings on the estate. It again referred to the Rosslyn Mansion decision and to the Tribunal’s explanation that the FTT had a wide discretion and did not require a minimum percentage. Attention was drawn to the Tribunal’s indication in that case that a history of complaints or apparent breakdown in relations would also be relevant to an application. It argued that special circumstances existed which justified granting the Association recognition. Those circumstances included the landlord’s failure to reply to the communications addressed to them (which I take to be another reference to the request notice).

The respondents’ statement of case was another lengthy document filed with a bundle of additional material running to 179 pages. Despite being professionally prepared, rather than confining itself to the proposition that the application could not succeed because the Association did not have the support of 50% of the qualifying leaseholders, a requirement which could not be overridden because the landlords were not in default of a direction to comply with a request notice, the statement of case took issue, point by point, with the Association’s statement. It referred to the 2018 Regulations and pointed out that the FTT had no power to recognise the Association, but rather than stopping there, it proceeded to explain in great detail why, if the FTT did have jurisdiction, it should not be exercised. Demonstrating a notable lack of self-awareness, the drafter described the Association’s statement as “20 pages of largely irrelevant prolixity” (on page 14 of their own 18-page document).

The respondents asserted in their statement that the “primary purpose” of the formation of the Association was to enable it to be used to assist one leaseholder, Mr Fernie, to pursue disproportionate, damaging and vexatious allegations against them. In support of that proposition minutes of the Association which have neither been referred to in the application nor appended to the applicant’s statement of case were exhibited by the respondents who then proceeded to refute them line by line. They did the same with one of the Association’s newsletters which again had not been referred to in the application.

When the FTT next considered the case on 16 July 2020 it imposed a stay pending the determination of other proceedings involving the respondents and Mr Fernie concerning disputed service charges. In the event, the service charge proceedings were delayed and on 15 April 2021, nine months after the stay was imposed, the respondents’ solicitor Mr Holt filed a witness statement asking that it be lifted. He suggested that determination of the Association’s application should be on paper without an oral hearing, describing it as “simply a procedural matter”.

Following an objection to a paper determination by the appellant, writing on behalf of the Association, the FTT conducted a case management hearing by telephone on 7 May 2021. Before the hearing Mr Connell informed the FTT that the Association would be represented by Mr Fernie. At the hearing the FTT lifted the stay and listed a further hearing on 22 July 2021 at which it would consider whether the application for a certificate of recognition should be struck out.

The hearing on 7 May 2021 was the first time that the Association received judicial guidance on the application. According to its application for permission to appeal, the Judge explained that if the 50% threshold for membership could not be demonstrated the Association ought to consider withdrawing the application.

The hearing on 22 July 2021 was preceded by a second witness statement from Mr Holt. In it he explained that the respondents wished to pursue an application for costs against the appellant on the basis that he had behaved unreasonably, by pursuing an application without the support of the requisite number of leaseholders, and because the application was disproportionate and relied on irrelevant material. Mr Holt also suggested that if, as the respondents believed, the application was being pursued to further the interests of Mr Fernie, that was a further example of unreasonable conduct by the appellant.

It was said by Mr Connell in his application for permission to appeal that the Association withdrew the application at the hearing on 22 July 2021. In its decision the FTT stated that the withdrawal did not occur until 28 July. Whatever was said on 22 July, written confirmation of withdrawal was not given until 27 July. It appears from directions given on 22 July that, on that date, the FTT received an application from the respondents confirming that they intended to submit an application for costs against “the applicant”, not mentioning Mr Connell personally. Thereafter, the respondents submitted a bill of costs which the FTT treated as their costs application. The parties exchanged submissions and on 12 September 2022 the FTT issued its decision, having considered the application on paper.