[2024] UKUT 54 (LC)

The appellants and Mr Fernie responded jointly to the FTT’s invitation to make submissions, but their representations were unsuccessful. On 19 October 2022 the FTT did as it had threatened and struck out the remainder of the 2020 application.

In its decision the FTT determined that the 2020 application was being pursued at the behest of Darren Fernie for an improper purpose:

“[…] on the balance of probability it is fair and just to decide that Messrs Fernie are running this present case not purely to challenge service charges, but also for the vexatious reasons of attempting to conduct an audit of the site’s finances in the hope of establishing a management wide fraud (that does not exist), to change the whole management structure of the site and to seek to appeal against [the decision in the 2018 application], when all appeal procedures have been exhausted. The Tribunal will Order that this part of the case be struck out, as being vexatious, or otherwise an abuse of the process of the Tribunal, pursuant to rule 9(3)(d) of the Rules.”

The 2015 to 2018 Repeat Challenge and the 2018 to 2020 Challenge were struck out pursuant to rule 9(3)(d). The FTT had already struck out Mr Fernie’s application in respect of the years 2015 to 2018 as a repeat of his 2018 application; it explained its reasons for striking out the appellants’ case for that period as follows:

“The Tribunal has given notice that it intends to strike out the same period of claim made by the other Applicants in this case because it would be vexatious to permit them to (in effect) raise an appeal against the decisions in [the 2018 application], after all appeals have been exhausted. The Tribunal is asked to note that the present application to challenge service charges is more restricted than the previous challenge, being limited to security costs, pressure washers, key fobs and the apportionment of service charges within the site as already considered. The Tribunal is fully aware of this, however the 2018 application] dealt with security costs, pressure washers and key fobs at great length. The Tribunal will strike out this part of the claim because it would be frivolous and vexatious or otherwise an abuse of the process of the Tribunal, to permit this part of the claim to proceed, rule 9(3)(d) of the Rules.”

As for the years 2018 to 2020, which had not yet been the subject of any determination, the FTT said this:

“The Tribunal takes the view that it is vexatious and disproportionate in the costs that would be expended in such a claim to continue with this part of the case in view of the determinations already made in [the 2018 application]. The Tribunal has already considered in detail 277 different areas of service charges at this site.”

After recalling that it had previously criticised Darren Fernie because he “did not do a very good job of representing Joshua Fernie” during the hearing of the 2018 application, the FTT then discounted a suggestion that his performance may have been adversely affected by a recently diagnosed illness. It reminded itself that the respondents had incurred expenditure of nearly £140,000 in proceedings which had resulted in a service charge refund of £10.44 in the 2018 application. It concluded:

“The Tribunal conducted a very thorough examination of service charge costs over approximately three and a half service charge years. The decisions made in that case have been considered by all possible appellate Tribunals and Courts. It is perfectly reasonable, fair and just for the Tribunal to use the decisions in [the 2018 application] as a reliable start point for any future consideration of the same areas of service charge costs. It is vexatious of the Applicants in this present case to attempt to undertake a further examination of service charges in the same areas of costs in the following 2 and a half years. The Tribunal determines that it will strike out the part of this application dealing with the second-half of 2018, 2019 and 2020 as being vexatious, or otherwise an abuse of the process of the Tribunal to permit this to proceed, Rule 9(3)(d) of the Rules.”