Simmons & Anor, R (on the application of) v London Rent Assessment Committee [2005] EWHC 2723 (Admin) (02 November 2005)

Neutral Citation Number: [2005] EWHC 2723 (Admin) CO/1781/2005 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT Royal Courts of Justice Strand London WC2 2 November 2005 B e f o r e : MR JUSTICE SULLIVAN ____________________ THE QUEEN ON THE APPLICATION OF JACK ALEXANDER SIMMONS & ANR (CLAIMANT) -v- LONDON RENT ASSESSMENT COMMITTEE (DEFENDANT) ____________________ Computer-Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) ____________________ MR N GRUNDY (instructed by BOWER & BAILEY) appeared on behalf of the CLAIMANT MR T MORSHEAD (instructed by TREASURY SOLICITOR) appeared on behalf of the DEFENDANT ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © MR JUSTICE SULLIVAN: While I accept the submission that I have the power to fix the figure myself, it seems to me that the discretion should be exercised with caution since it is important to maintain the position that the tribunal are the fact finders, and it is their valuation judgment, not mine, that matters. I would impose my own figure only if I was quite satisfied that that would be the only figure which a reasonable tribunal could have determined, not simply that that would be a reasonable figure, or appear to be a likely or possible answer to the conundrum. I think the proper thing to do in this case is to remit the matter back to the tribunal on the basis that the reasoning in the decision, as corrected by the certificate of correction, is fairly described as unintelligible for the simple reason, and I put it quite shortly, that the tribunal appears to have used as its starting point Mr Lester's comparable and made certain percentage deductions from that, whereas it is quite plain that Mr Lester's comparable did not include services. He dealt with those as a separate calculation. Whilst I am not troubled by the fact that the committee thought the appropriate figure for services was £80 rather than Mr Lester's figure of £95, I am troubled by the lack of any sensible explanation as to how suddenly in the final line we end up with services being included rather than excluded. The worrying feature about this case is that whereas paragraph 5 in the summary reasons, as uncorrected, was entirely logical in terms of valuation methodology even though it conflicted with the decision in paragraph 6 (logical that is apart from the obviously erroneous reference to not considering there was any substantial scarcity); the corrected version of paragraph 5 appears to be wholly inconsistent with the methodology used by the committee. So it is for those short reasons that this matter must be remitted to the committee so that it can consider the matter further. I simply express the hope that what should have been a relatively straightforward case about the appropriate rent and service charge is not turned into some sort of state trial as to the proper approach as a matter of law to whether percentage deductions should be made from services as well as rent. I appreciate that there may be a desire to resolve that issue of principle but the committee appear to have been to deal with this case be able to deal with the issue without needing to go into those sort of issues in the original decision, even though its reasons, as I have explained above, were simply muddled. On those grounds, the decision is remitted, rather than quashed; that is the order. The matter must be remitted to the tribunal to redetermine the matter and to say whether £510 really was inclusive of £80 services and, if it was, why it was, contrary to Mr Lester's evidence. MR GRUNDY: My Lord, two things. I wonder if there could be a time period for the further decision. I realise that there may be difficulty in getting together the same panel but this is not a case where a new hearing is needed. There is no requirement for new determination of the facts. MR JUSTICE SULLIVAN: I would not normally impose a specific timescale, partly because I simply would not have any information as to when the committee could be reconstituted and normally I would not think it necessary unless there were some sort of indication that the committee was not going to discharge its statutory duty. I do not know if Mr Morshead has any instructions as to whether it may be possible. MR GRUNDY: The only reason I ask is because this decision, as you can see, is quite an historic one now and the date of increase precedes even the date of decision and it may be that Mrs Barham is faced with that increase in rent. MR JUSTICE SULLIVAN: Registered as from 1st November 2004 so it is now a year old. Mr Morshead? MR MORSHEAD: I was hoping to be able to give your Lordship an indication as to how long this is likely to take. The trouble at the moment is that, as I understand it, one of the valuers who sat on this panel has gone to Australia while a baby is born to the family, so if the panel who originally determined this matter are to redetermine it, I am afraid it is not going to happen until the new year. I am afraid I cannot offer Mr Grundy the help that I would like to have been able to. The only alternative would be for us to constitute a fresh panel. MR JUSTICE SULLIVAN: And reconsider the matter on the papers? MR MORSHEAD: Yes. MR JUSTICE SULLIVAN: I am not going to make any orders about that. What I am going to do is to express in open court what may appear to be perfectly obvious but what may assist you and Mr Grundy in carrying the matter further forward. It is simply to say that, one way or another, this is now a decision that is fairly long in the tooth, it is a year old, and every effort really must be made to redetermine the matter as soon as is practicable. I cannot do any more than that, I think. And I have to leave the parties to think out mechanisms if someone is just simply absent away in Australia. MR GRUNDY: My Lord, thank you. Then the other issue is the issue of costs in relation to this appeal. The appellants have succeeded. This has been contested by the London Rent Assessment Panel. Their explanations for their decisions have not actually assisted; they have in fact made the position murkier and more confusing in my submission and in those circumstances it is appropriate for the appellants to deal with their costs against the London Rent Assessment Panel. I have handed up a schedule of costs for my learned friend and I handed one up early to your associate. MR JUSTICE SULLIVAN: That is it, yes. MR GRUNDY: It is inclusive of VAT and it is £1,021.25. MR JUSTICE SULLIVAN: Do you want to say anything about that, Mr Morshead? MR MORSHEAD: I can hardly quibble with the quantity. MR JUSTICE SULLIVAN: No, it is very reasonable. MR MORSHEAD: I would briefly like to submit that we should not pay the costs, my Lord. The reason is that, as I hope we made clear, our participation arises from what we see as having been a change in the nature of the case from that which was originally put forward into a proposition -- the proposition of concern to us is obviously the one about scarcity which was not found before the skeleton argument and we were really hoping to make submissions to ensure that no decision should go by the board on the back of an uncontested hearing involving that relatively important point of principle. Had it been that we had attended and addressed your Lordship on that subject, and lost, then I would not be making these submissions. But the reason for the case going away in the way that it has done is not because of the scarcity argument that we were anxious should be argued and reasoned before your Lordship so that there could be a good decision for the future. That being so, we do suggest that the costs that my learned friend has incurred are no higher, by reason of our participation today, than they would have been had we made no attendance. Our attendance is only because of the emergence of a point which in the event has not been argued. The correct outcome in that situation is no order as to costs. MR JUSTICE SULLIVAN: The only point about that would be that the reason it has gone away today is a pretty basic one in terms of the adequacy of the reasoning which was thrown up, it seems to me, in sharp relief by the certificate of correction. It is a slightly unusual case in that we actually have a certificate of correction and, not withstanding the existence of a certificate of correction, we still actually have not got, I have concluded, a legally defensible position. That, I think, might be something you wish to address. I appreciate that one would not always give costs against a body that is acting in a judicial capacity. MR MORSHEAD: All we would say to that, my Lord, is that there is correspondence. I was not proposing to take your Lordship through it but there is correspondence, I think including copies sent to the administrative court, in which we made our position clear in relation to the original grounds that we wanted the material to be put before your Lordship, including the certificates and our response to the skeleton argument and the original grounds, but we were otherwise not going to participate in the appeal. The only reason that changed is because of this challenge to the principle which we did feel it would be inappropriate for your Lordship to deal with without argument. It is a difficult point. MR JUSTICE SULLIVAN: I am not under any illusions about that but the question is, whether you had appeared or whether you had not appeared, the committee did not put its hands up. Indeed, the Treasury Solicitors' letter actually said, "There is no error in the decision", it states there: Rent is £510 including £80. MR MORSHEAD: That was at a stage when we were not a respondent. It was a matter for the defendant tenant to concede and the matter would have to have been effective absent an indication from her that she was content for the decision to be quashed. Or remitted. That is really why I submit I am in a position to say that our involvement today has not actually ended up increasing the costs. MR JUSTICE SULLIVAN: What do you say about that, Mr Grundy? MR GRUNDY: With respect to my learned friend, the propositions are just untenable from the correspondence. MR JUSTICE SULLIVAN: I do not know if I have all the correspondence by the way on that issue. I suspect I may not have. MR GRUNDY: There is a very trenchant letter dated ... MR JUSTICE SULLIVAN: 25th April I have, 6th May ... MR GRUNDY: Very trenchant correspondence from the Treasury Solicitors as to the merits of the appeal. On 23rd March the appellants wrote in person to the London Rent Assessment Panel pointing out the mathematical miscalculation which, in effect, gives rise to the inadequacy of reasons which you have found. They do not call it inadequacy of reasons but they are not lawyers and indeed in the original grounds of appeal, what you have pointed out -- MR JUSTICE SULLIVAN: Is exactly what they say. MR GRUNDY: Yes. It ill behoves the Treasury's list now to say, "We did not really want to be part of this until such time as the grounds of appeal were amended", because they were writing saying, "We oppose all of this. Here is the certificate of correction which actually clarifies everything", when it did not. So in those circumstances the appellants should get their costs. MR JUSTICE SULLIVAN: I appreciate one does not always give costs against a body such as the panel that is acting in a judicial capacity. On the other hand, it does seem to me that whilst I accept Mr Morshead's point that the particular point on which they wished to argue has not in fact been argued today, and query the extent to which in any event it could have been argued absent any proper factual basis, this was a pretty obvious error that the claimants themselves pointed out right at the start and really I think someone should have taken this case by the scruff of the neck and worked out that the reasoning simply was not consistent. For those reasons, the appellants should not be put to the expense and the interested party is to pay the appellant's costs. I summarily assess those in the sum of £1,021.25 inclusive of VAT. Thank you both very much indeed. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII