[2025] UKUT 179 (LC)

When it was asked for permission to appeal the FTT said that “the Tribunal considers the matter of interpretation of the verbal agreement open to further clarification.”

In the written statement he provided to the FTT Mr Wallis did not give any detailed account of what he and Mr Malcolm Hutchby had said to each other in 1999 when it was agreed that he would move to his current home from the accommodation where he was already a tenant of the respondent company. The most relevant part of his statement said this:

“I became a tenant of Mr Malcolm Hutchby of Hutchby & Collumbell Ltd in the Summer of 1993 at 85 Sugden Road, Worthing, West Sussex. The rent was set and fixed at £60-00 per week. I was “paid up” in full.

I continued to be a tenant of the same Mr Malcolm Hutchby of Hutchby & Collumbell Ltd when I moved into my new home, 115 Broadwater Street East, Worthing, West Sussex, BN14 9AP at the beginning of November 1999. The rent was set and fixed at £100-00 per week.”

Mr Wallis also relied on the rent books which showed that he has paid rent at the same rate of £100 a week since at least August 2004. That is evidence that no change in the rent was agreed between the parties or determined by a tribunal, but it is not evidence of what they agreed in 1999. The only evidence of that is Mr Wallis’s evidence that “the rent was set and fixed at £100-00 per week.” Mr Malcolm Hutchby is dead and it was not suggested that anybody else witnessed the conversation between the two men or that anyone else at the respondent company had any relevant knowledge of what had been agreed.

The FTT’s decision is puzzling. It clearly accepted that there had been a verbal agreement, as it referred to it in paragraph 17 of the decision and when it granted permission to appeal. But it made no finding about what was agreed and it did not say, in terms, whether it believed Mr Wallis’s evidence on that subject or not. It is possible that when it said that there was “no evidence whatsoever” to support the claim that the rent agreed was “perpetual” it intended that to be understood as a rejection of Mr Wallis’s account of the effect of what had been agreed. But the statement is open to other possible meanings. It is difficult to understand why the FTT would have given permission to appeal on “the matter of interpretation of the verbal agreement” or why it would have reminded itself of the guidance of the Supreme Court on the interpretation of written agreements if it did not think something had been, or at least might have been, agreed which needed to be interpreted.

The statement that there was “no evidence whatsoever” of an agreement that the rent would be fixed was not correct. There was Mr Wallis’s own evidence, limited though it was on matters of detail, but clear on the effect of what he said had been agreed. The FTT may therefore have intended to convey that there was no other evidence to support or corroborate Mr Wallis’s story. But that would be to ignore the evidence of the rent books, which were consistent with Mr Wallis’s account and which are inconsistent with any suggestion that this was a conventional arrangement.

The FTT’s reference to “the balance of the evidence” and to there being “insufficient evidence that the parties intended the rent to stay fixed”, is also puzzling. The respondent did not advance any evidence about what had been agreed in 1999, so there was no evidence to counterbalance what Mr Wallis said. The only weight on the opposite side of any balancing exercise was the improbability of a landlord making an agreement of the sort suggested. But the likelihood that parties would agree what was suggested can only go so far in a case like this, since whatever was agreed in 1999, the arrangement did not follow a normal course: it is most unusual for the rent under an assured tenancy to remain at the same level for 25 years, as it seems to have done here. If the FTT did undertake a balancing exercise it still needed to say what it made of Mr Wallis’s own evidence. If it did not believe him, it should have said so, and explained why.

Instead of making a finding of fact about what was agreed, or not agreed, by Mr Wallis and Mr Hutchby in 1999, the FTT embarked on an irrelevant digression. The proposition that it was the job of the tribunal “to determine what was in the minds of the parties at the outset of the agreement” was not a good starting point. Unless it found expression in what they agreed, whatever may have been in the minds of the parties was irrelevant. In the same way, whether it would or would not have made “business or commercial sense” for Mr Hutchby to agree to a concessionary rent without limit of time was only relevant to the question of whether he did or did not agree it, as Mr Wallis says he did. It might be said that it made just as little “business or commercial sense” for the rent to have remained at £100 a week for 25 years.

The FTT did not make any finding on what the parties agreed. It was not enough to ask itself what they intended to agree.