Tobicon Limited v Collinson [2013] UKUT 047(LC)

Summary

Where a party is not served with the proceedings but is aware of them and chooses not to take part, the UT has a discretion whether to allow an appeal.

Facts

The Appellant landlord applied for permission to appeal against the FTT’s determination of the tenants’ liability to pay service charges on the ground that it had not been served with notice of the proceedings and had no knowledge of them.  Permission to appeal was granted and the landlord was permitted to call evidence on the issue of service. 

The landlord’s registered office is in Jersey.  The address for service given in the leaseholders’ s.27A application (which named the landlords and their two agents as respondents) to the FTT was out of the UK.   Reg 5(1) of the FTT Procedure (England) Regulations 2003 requires the FTT to send a copy of the application to the each named respondent.  The proceedings were not served on the landlord at its registered address in Jersey and no order was made dispensing with service or for substituted service pursuant to regulations 23(4)(a)(iii) and 23(5) of the Procedure Regulations.  The Tribunal did, however, send copies of the application to the agents to inform them of the application and the date for the PTR.  Neither of the agents had been appointed to act on the landlord’s behalf for the purposes of reg 23(1)(c).  In the circumstances, there was no service on the landlord in accordance with the 2003 Regulations.  

On appeal, HHJ Robinson found that it was inconceivable that neither of the agents would have informed the landlord of the existence of the proceedings.  She held that the landlord was well aware of the proceedings but chose not to take any part in them.

Issues

The issue was whether the UT had a discretion whether to allow the appeal in circumstances where a party had not been served with the proceedings but was aware of them and chose not to take part.

Decision on appeal

Having considered Nelson v Clearsprings (Management) Limited [2007] 2 All ER 407, CA and Al-Tobashi v Aung (1994) The Times, 10 March, HHJ Robinson held that the UT did have such a discretion.  The UT dispensed with the requirement of service of the proceedings on the landlord and dismissed the appeal.