The Supreme Court recently granted permission to appeal in a “Leapfrog” appeal from the Land Tribunal relating to the “Right to Manage” under the Commonhold and Leasehold Reform Act 2002 (“2002 Act”) in A1 Properties (Sunderland) Limited v Tudor Studios RTM Company Limited.

Background

A group of tenants within Tudors Studios, a former factory in Leicester now converted into a large block of student accommodation, served a “Claim Notice” under the 2002 Act. However, the tenants did not serve the Claim Notice on one of the intermediate landlords, and that landlord claimed that as a result, the Claim Notice was invalid.

The intermediate landlord in question had no management responsibility, and so applying the earlier decision of the Court of Appel in Elim Court RTM Co Ltd v Avon Freeholders Ltd, the Property Chamber of the First-Tier Tribunal was bound to find, and did find, that the notice was valid.

On appeal to the Lands Chamber of the Upper Tribunal on appeal, the intermediate landlord contended that Elim was wrongly decided, or, in any event, it was confined to its own facts and was not of general application. The problem was that the Lands Chamber was bound to follow Elim, and in any appeal to the Court of Appeal it too was bound to follow Elim, because the Court of Appeal must generally follow its own decisions, unless the exceptions in Young v Bristol Aeroplane Co Ltd [1944] KB 718 apply. Those exceptions are:

1. If there are two or more conflicting earlier decisions, the Court of Appeal is able to decide which of those decision it prefers and will follow.
2. If the decision of the Court of Appeal “cannot stand” (i.e. is inconsistent with) a decision of the Supreme Court (or the Appellate Committee of the House of Lords before 2009), in which case the Court of Appeal must follow the decision of the higher Court.
3. If the decision of the Court of Appeal was “per incuriam”; that is, a relevant case, statutory provision or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier Court.

None of those applied in this case, and so the Lands Chamber was bound to follow Elim.

What is a “Leapfrog Appeal?”

A Leapfrog appeal is an appeal directly to the Supreme Court from a lower Court and which “leapfrogs” the Court of Appeal. A Leapfrog application has two stages:

1. The grant of a leapfrog certificate by the judge that made the decision being appealed; and
2. Permission to appeal from the Supreme Court.

Although Leapfrog appeals were introduced in the Administration of Justice Act 1969, they were confined to cases before the High Court, but since April 2015 it has been possible for the Lands Chamber.

A leapfrog certificate will only be granted if “Relevant Conditions” are met

1.    There is a point of law of general importance involved in the judge's decision and the point of law either:

(a)  Relates wholly or partly to the construction of a statute or statutory instrument, and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings, or

(b)  Is one in which the judge is bound by a decision of the Court of Appeal or the Supreme Court (of House of Lords), and in those previous proceedings the point was fully considered in the Court of Appeal/Supreme Court/House of Lords judgments in those previous proceedings.

2.    A sufficient case has been made out to justify an application for permission to bring a leapfrog appeal.

An application for a Leapfrog Certificate must be made “immediately after [the judge gives] judgment in the proceedings” and in any event no later than 14 days from the judgment.

Why is this Important?

The case is interesting because it is only the second time since 2015 that the Lands Chamber has granted a leapfrog certificate.

The first decision (FirstPort Property Services Ltd v Settlers Court RTM Company Ltd & Ors [2022] UKSC 1) also concerned the Right to Manage provision in the 2002 Act, and in that case the decision of the Court of Appeal was overturned by the Supreme Court.

The underlying case is also on interest to property practitioners because the point that the Supreme Court will review is the “…melancholy fact  that whenever Parliament lays down a detailed procedure for exercising a statutory right, people get the procedure wrong” and what impact getting it wrong has on the acquisition of rights relating to property when the relevant statute is silent as to the consequence of the non-compliance.