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Conclusions
Conclusion
It is perhaps curious that this point has not arisen for decision before; as Mr Wand said, there is no direct authority on the point and nothing in the textbooks. But it is significant that in London Borough of Tower Hamlets v Khan the point was not taken and did not trouble the Court of appeal. It is also significant that an action for damages for a breach of a covenant other than one to pay service charges does not appear to amount to waiver of the right to forfeit for that breach.
Accordingly I conclude that the pursuit of a money judgment, for service charges is not a waiver of the right to forfeit for failure to pay those charges, and therefore the appeal fails.
Upper Tribunal Judge Elizabeth Cooke
20 February 2024
Right of appeal
Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.