English Rose Estates Ltd v Menon [2022] UKUT 347 (LC)

This appeal was heard on 23 November 2022.

The landlord appealed because, at the hearing before the First-tier Tribunal, counsel for the previously-unrepresented leaseholders had been permitted to raise a new point which had not previously been mentioned in the proceedings.

The FTT then decided the new point in the leaseholders’ favour, and disallowed about £40,000 of insurance premiums paid by the leaseholders to their landlord for 7 years.

The appeal turned on: a) whether, by allowing the new point, the FTT had made the proceedings unfair, and b) the correctness of its conclusion on the insurance issue.

Dismissing the appeal on (a), Martin Rodger KC reminded himself that “an appellant who challenges [a case management] decision faces a high hurdle.”

He also dismissed the appeal on (b). On the wording of the leases, the leaseholders were not liable to pay for insurance.

He concluded however that the outcome was “not particularly satisfactory … for either side”, and, in the final paragraph of the decision, observed that:

“…the parties may find themselves involved in further litigation if they cannot reach a comprehensive agreement dealing with past and future rights and liabilities. They would be well advised to seek such an agreement, with the assistance of a mediator if necessary.”