[2023] UKUT 208 (LC)

In this appeal it is said on behalf of the appellant that a standard form of directions used in service charge disputes by the First-tier Tribunal (Property Chamber) (FTT), is defective, and that a refusal to vary those directions prevented the appellant from obtaining a fair hearing.

The appeal arises out of a decision given by the FTT on 20 December 2022 determining the service charges payable for the years 2020 and 2021 by Mr Mark Saunders, under his lease of a flat in Wimpole Street, London W1. The decision was made on an application by Mr Saunders’ landlord, Shenfield Ltd, under section 27A, Landlord and Tenant Act 1985.

Twenty items of expenditure were challenged by Mr Saunders in a schedule prepared by the parties at the direction of the FTT. It found that the charges for almost all of those items were payable. Only four items remain in issue in this appeal, although they include the largest single item in the dispute. Those four items: £4,753.30 identified in the schedule as being for “common parts – security equipment”; £11,728.43 for common areas cleaning; and two charges for common parts internal repairs and maintenance of £271,189.14 in 2020 and £53,348.20 in 2021.

Where a landlord applies for a determination under section 27A, 1985 Act, the FTT’s standard directions require that it produce only the relevant service charge accounts and demands at the start of the case, and do not direct disclosure of other documents until after the leaseholder against whom the application is made has first specified the expenditure which is challenged and has provided reasons for the challenge. In this case Mr Saunders sought further disclosure from the FTT, but his application was refused. Later, after documents were eventually provided by Shenfield in the hearing bundle, the FTT refused to address new issues arising from those documents because they had not been identified in Mr Saunders’ original statement of case and schedule of disputes.

Mr Saunders now maintains that the procedure adopted by the FTT meant that he was unable properly to challenge the four disputed items.

Permission to appeal was given by this Tribunal. At the hearing of the appeal both parties were represented by counsel, as they had been before the FTT, Mr Morris for the appellant and Mr Upton for the respondent.