[2023] UKUT 208 (LC)

The sum claimed in respect of the common parts refurbishment works dwarfs the other items in issue. Despite his previous knowledge of the works the only points taken by Mr Saunders in his statement of case and schedule were that he required further information concerning the costs incurred in order to make a determination whether they were recoverable under the lease. He also purported to reserve his right to challenge the reasonableness of the cost once copies of the supporting invoices had been provided.

The FTT did not deal satisfactorily with the application for disclosure on 10 November. Mr Saunders provided a detailed list of material which he said was necessary to enable him to formulate his case. The FTT’s response was only that its original directions were clear; that entirely missed the point.

Nevertheless, Mr Saunders’ application for disclosure, and its revival at the final hearing, were disingenuous. It is apparent from the documents provided to me (and which appear to have been provided to the FTT, although it did not mention them) that for at least a year before the proceedings commenced Mr Saunders had been in a position to consider the detail of the work (so that his firm could tender for it) and then to assess whether the specified works had been carried out and were of satisfactory quality. The snagging schedule which he produced in April 2021 and then revised in October 2021 identified individual items which he claimed had not been carried out and others which he said had not been done properly. By far the greater part of the specified work was concerned with decorative and other cosmetic works (walls, floors, furnishings) and was readily capable of being inspected. There should have been no difficulty in Mr Saunders identifying any part of it which he wished to challenge on grounds relating to quality. Nor should he have had any problem in raising an allegation that either the contract as a whole, or specific items within it, had not been completed at a reasonable cost. The schedule of April 2021 (almost a year before the proceedings began) was, as he himself described it, a “line by line” comparison of the successful tenderer’s tender price for each individual item and his own assessment on behalf of the residents of what that item was worth.

In my judgment the FTT came to the correct decision in refusing to entertain additional challenges which had not been identified by Mr Saunders in his statement of case and supporting schedule of items in dispute. Whether it reached that decision for the right reasons is impossible to know, because it entirely failed to explain its thinking. But I am nevertheless satisfied that Mr Saunders could have identified specific items, the cost or quality of which he wished to challenge, when he filed his statement of case. He could have explained the substance, if not all of the detail, of the case he wanted the FTT to adjudicate on, but he chose instead to “reserve his position” as it was put in the statement of case. There was no need for that approach in this case, and no proper justification for it. It may have been a tactical ploy by Mr Saunders’ advisers, or them simply putting off the time when the case had to be thought about properly. But whatever the reason, Mr Saunders was at fault for not putting the issues he knew he wanted to raise on the table at the time he had been directed to.

Mr Saunders could also have identified at a much earlier stage what additional documents he wished to see, including the contract variation sheets on which Mr Morris placed particular emphasis. Mr Morris suggested that it had been assume that the landlord would give proper disclosure of documents with its own statement of case, but if that was Mr Saunders’ expectation it was not justified. The FTT’s directions required the landlord to provide copies of documents on which it intended to rely, which would not have included documents relating to planning permission, the appointment of the contract administrator, or even the contractual variations. Some of the documents requested by Mr Saunders on 10 November give the impression of having been included to complicate what appears to have been a relatively straightforward picture, but if they had been requested in better time the landlord would either have had to produce them when it filed its own statement of case or to have explained why they were irrelevant. In either case the FTT would then have been in a better position to determine any residual application for disclosure.

One important difference between this issue and the others is that Mr Saunders raised issues about the cleaning contract and the windows as soon as he reasonably could. He did not do so in the case of the major works, and the FTT was entitled to refuse the late disclosure requested and the adjournment of the hearing and to deal with the matters which had already been identified.

In those circumstances I dismiss the appeal on issue 3.