[2024] UKUT 33 (LC)

Mr Rainey KC invited me to set aside the whole of the order. I am not prepared to do that. With the exception of the issue of jurisdiction, none of the grounds on which Southwark relied disclosed a procedural irregularity within rule 54(2)(a) or (d). Those parts of the order which were within the Tribunal’s jurisdiction were obtained in compliance with the Rules and the directions of the Registrar. There is no power to set them aside because the conditions in rule 54(2) are not met with respect to them.

Even if there is such a power, perhaps because the order as a whole contains parts which exceeded the Tribunal’s jurisdiction, in my judgment it would not be in the interests of justice to set aside those parts which were obtained regularly. The applicant relied on the modifications to clause 3(k) when carrying out alterations which converted the Black Horse into two flats. Southwark obtained a copy of the order on 15 June 2023 but it delayed in making its application to set the order aside until 1 November, four and a half months later. There has been no explanation of that delay (it is not enough to say that Southwark prioritised its response to the enfranchisement claim notice). Between June and November the applicant commenced proceedings in the County Court in relation to the proposed enfranchisement. In these circumstances, the interests of justice do not require that the order be set aside except to the extent that it was made without jurisdiction.

For his part, Mr Upton submitted that the order ought not to be set aside at all because of the prejudice which would be caused to the applicant and its associated companies.

I do not accept that the Tribunal could properly leave in place an order which it is apparent on its face was made in part without jurisdiction. The Tribunal has no power to make an effective order altering the relations between the parties to any extent which is not provided for by section 84. Southwark is entitled to say that, to the extent that the order exceeded the Tribunal’s jurisdiction, it was of no effect and that the covenants which it purported to vary were not varied but have remained at all times in their original form.

Mr Rainey KC drew my attention to Lewison LJ’s observation in Golding v Martin [2019] Ch 489 (CA) at [22], with regard to a possession order made without jurisdiction, that “in general court orders must be obeyed unless and until set aside” and he felt he was constrained to accept for the purposes of this application (as he had been in the Court of Appeal in Golding) that it was “debatable” whether the parts of the order made without jurisdiction were a nullity. I disagree. This is not a case of an order of a court (or tribunal) which must be obeyed. It is an order which purports to change the parties’ relationship to a greater extent than Parliament has allowed. Moreover, that defect is clear on the face of the order. A better analogy is the decision of the Court of Appeal in Nicholls v Kinsey [1994] QB 600, in which it was held that a tenant had been entitled to apply to the court for a new tenancy under Part 2, Landlord and Tenant Act 1954 despite the court having previously authorised an agreement between the parties excluding that right under section 38. As the order recited, the tenancy which the court had authorised was a periodic tenancy, not a term of years, and so the order was made without jurisdiction. The consequence, as Hirst LJ put it at page 607A, was that the order was “inherently invalid” and did not prevent an inconsistent application for a new tenancy being made without the order first having been set aside. Sir Michael Kerr said that the order “bore the brand of invalidity on its forehead”; it was therefore “always a nullity” (page 608G-609C).

I am therefore satisfied that a new order must be made under rule 54. That order will set aside the original order in part and remake it, confirming for the avoidance of doubt that clauses 3(i), (o) and (p) remain in their unmodified form and that clause 3(k) remains in its modified form, and modifying clause 3(n) so that it is takes the form shown in paragraph 83 above. The Tribunal’s order will then properly reflect the parties’ rights as they have been since the order of 24 February 2022 was made.

There are two further matters which I should mention.

First, as I have previously explained, under the Tribunal’s Rules only a person who gives a notice of objection becomes a party to a section 84 application; and only parties are notified of the outcome of an application. Most section 84 applications concern freehold covenants and notice of an application will often be given to a large number of potential objectors, including by advertisement or the display of public notices. It would not be practical for the Tribunal then to communicate its final order individually to all potential beneficiaries of a covenant who chose not to identify themselves as objectors. But it may be possible to find ways of publicising the outcome of an application more widely than at present. Leasehold cases are much less common, and there would be no practical obstacle to the Tribunal sending a copy of its decision to the landlord identified in the application, whether or not they have filed a notice of objection. It is clearly not desirable that landowners should be left in ignorance that their rights have been modified or discharged and, although no provision is made in section 84 itself for publicising orders, the Tribunal will consider whether changes should be made to its own administrative arrangements and to the directions given to successful applicants in both leasehold and freehold cases.

Secondly, during the hearing it became clear that Southwark was unaware that the Tribunal had made two orders on 24 February 2022. The second order, in separate proceedings, modified the lease of another public house, the King William IV in Harper Road, Southwark. The lease was in a slightly different form to that of the Black Horse but the circumstances of the application and the making of the Tribunal’s order were almost identical. The parties should urgently consider whether they can agree a draft form of order setting aside the original in that case and remaking it within the limits of the Tribunal’s section 84 jurisdiction. If they cannot, Southwark should make an appropriate application without delay.