Case No: C3/2012/0941(A)
Neutral Citation Number: [2012] EWCA Civ 1024
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(LANDS CHAMBER)
(President of the Upper Tribunal)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 5th July 2012

Before:

LORD JUSTICE LLOYD
 and
LORD JUSTICE SULLIVAN
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Between:

	The Wellcome Trust Limited	
Appellant	
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19-22 Onslow Gardens Freehold	

Respondent	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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Mr Stephen Jourdan QC (instructed by CMS Cameron McKenna LLP) appeared on behalf of the Appellant.

Mr Philip Rainey QC (instructed by Pemberton Greenish LLP) appeared on behalf of the Respondent.
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Judgment
Lord Justice Sullivan:

Background
1.	In a decision dated 3 January 2012 the President of the Upper Tribunal (Lands Chamber) refused the applicant's application under Section 175(2) of the Common hold and Leasehold Reform Act 2002 ("the 2002 Act") for permission to appeal to the Upper Tribunal against a decision of the Leasehold Valuation Tribunal ("LVT") dated 21 September 2011.  The President's decision was sent to the applicant under cover of a letter dated 4 January 2012 from the Registrar of the Upper Tribunal (Lands Chamber).  That letter said in part:

"There is no right to appeal this decision in the Court of Appeal, however this type of decision can be judicially reviewed in certain limited circumstances. 

The Tribunal's decision can be judicially reviewed if permission for judicial review is given by the Administrative Court. Permission will only be given where the criteria for a second-tier appeal apply. This means that there must be an important point of principle or practice or some other compelling reason to review the case. This was decided by the Supreme Court in a decision known in short as Cart ([2011] UKSC 28)."

2.	The applicant took issue with the statement that there was no right to appeal to the Court of Appeal against the President's decision and an application to the Upper Tribunal for permission to appeal to the Court of Appeal was made.  In a decision dated 30 March 2012 the President refused permission to appeal.  Having said that the grounds of appeal had no realistic prospect of success, the President continued: 

"In any event, I do not think that appeal lies to the Court of Appeal in respect of a decision of the Upper Tribunal refusing permission to appeal from a leasehold valuation tribunal. On the authority of Lane v Esdaile [1981] AC page 210 it clearly ought not to do so; appeal from an LVT lies under Section 175 of the Commonhold and Leasehold Reform Act 2002 with permission. In R (Sinclair Investments Kensington Limited) v Lands Tribunal [2005] EWCA Civ 1305 the Court of Appeal held that the right of appeal to the Court of Appeal on a point of law against a decision of the tribunal under Section 3(4) of the Lands Tribunal Act 1949 did not apply to such decision of the Lands Tribunal refusing permission to appeal under Section 175, which could only be challenged by way of judicial review. The Lands Tribunal's functions have been transferred to the Lands Chamber of the Upper Tribunal by the transfer of tribunal functions (Lands Tribunal and Miscellaneous Amendments) Order 2009 and the First-tier Tribunal and Upper Tribunal (Chambers) Amendment No. 2 Order 2009. The right of appeal (now to the Upper Tribunal) for an LVT remains Section 175 of the 2002 Act. The LVT's functions have not been transferred to the First-tier Tribunal. 

Under the transfer order the 1949 Act is amended by the omission of Section 3(4). Appeal now lies under Section 31(2) of the Tribunals Courts and Enforcement Act 2007 to the Court of Appeal from a decision of the Upper Tribunal other than an excluded decision. A decision of the Upper Tribunal refusing permission to appeal from the First-tier Tribunal under Section 11(4)(b) is an excluded decision; a decision under Section 175 of the 2002 Act, however, is not an excluded decision. It might seem implicit in this that appeal does lie to the Court of Appeal against the refusal of permission to appeal from an LVT.  In my view, however, the effect of the higher authorities on which Sinclair Investments was based, including in particular Lane v Esdaile, apply to a decision of the Upper Tribunal under Section 175 of the 2002 Act.  The decision of the Supreme Court in R (Cart) v Upper Tribunal [2011] 3 WLR 107 holding that there is some, but limited, power and judicial review in respect of unappealable Upper Tribunal decisions is consistent with this view. It should be noted that the same issues arise in another case in which I am refusing permission to appeal to the Court of Appeal."

3.	The applicant filed an appellant's notice in which it sought permission to appeal to the Court of Appeal.  It also failed a claim seeking permission to apply for judicial review of the President's decision in the administrative court. In its skeleton argument the applicant contended that there was a right of appeal with permission to the Court of Appeal, but it also sought directions as to whether its challenge to the President's decision to refuse permission to appeal from the LVT to the Upper Tribunal should be made by way of an application for permission to appeal to this court under CPR Part 52 or by way of an application for permission to apply for judicial review to the administrative court under CPR Part 54.  

4.	On 12 June I ordered that the application for directions was to be listed for a short hearing before two members of this court.  I further ordered: 

"…that at that hearing the court will consider only the issue of jurisdiction. Does the Court of Appeal have jurisdiction to consider the application for permission to appeal or should the challenge to the Upper Tribunal's decision be made by way of an application to the administrative court for permission to apply for judicial review? When the issue of jurisdiction has been determined the application for permission to appeal/apply for judicial review will be considered in due course in accordance with the normal procedure on the papers by a single Lord Justice/judge of the administrative court."

5.	The respondent was given leave to file a skeleton argument on the jurisdiction issue, and it has done so.  In its skeleton argument the respondent contends that there is no right of appeal to the Court of Appeal against the President's decision dated 3 January 2012 and the only way in which that decision can be challenged by the applicant is by way of an application for permission to apply for judicial review.  I would emphasise that we are not considering the merits of the applicant's challenge to the President's decision, we are merely deciding which court, the Court of Appeal or the administrative court, has jurisdiction to consider that challenge. 

The statutory scheme
6.	It is proposed to transfer the jurisdiction of the LVT into a new Property Chamber of the First-tier Tribunal in 2013, but that transfer has not yet taken place and the legislation governing appeals from the LVT to the Upper Tribunal remains Section 175 of the 2002 Act, which provides so far as relevant: 

“(1) A party to proceedings before a leasehold valuation tribunal may appeal to the Upper Tribunal from a decision of the leasehold valuation tribunal. 
(2) But the appeal may be made only with the permission of— 
(a) the leasehold valuation tribunal, or 
(b) the Upper Tribunal.”

7.	Appeals from the First-tier Tribunal to the Upper Tribunal are governed by Section 11 of the Tribunals Courts and Enforcement Act 2007 ("the 2007 Act"), which provides, so far as material: 

“(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.
(4) Permission (or leave) may be given by—
(a) the First-tier Tribunal, or
(b) the Upper Tribunal, on an application by the party.”

8.	Section 13 of the 2007 Act deals with appeals from the Upper Tribunal to the Court of Appeal.  Section 13 provides, so far as relevant: 

"(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.
(2) Any party to a case has a right of appeal, subject to subsection (14)."

9.	The right of appeal may be exercised only with the permission of the Upper Tribunal or the Court of Appeal, and subsection (8) provides: 

“(8) For the purposes of subsection (1), an “excluded decision” is—
(c) any decision of the Upper Tribunal on an application under section 11(4)(b) (application for
permission or leave to appeal)…
(f) any decision of the Upper Tribunal that is of a description specified in an order made by the Lord Chancellor.”

10.	A decision by the Upper Tribunal to refuse permission to appeal under Section 175(2) of the 2002 Act is not listed as one of the excluded decisions under Subsection 13(8) of the 2007 Act.  

11.	In Ascham Homes Ltd LRX/8/2009, an earlier decision on an application for permission to appeal against a refusal of permission to appeal to the Upper Tribunal from the LVT, the President said obiter that it appeared to him that since the 1 June 2009 there had been a right of appeal to the Court of Appeal from the decision refusing permission subject to the requirement of permission and to the relevant time limits.  He expressed the view that the right of appeal was clearly anomalous in view of the exclusion under section 11(4)(b).  The President's observations in the Ascham Homes case were obiter because the application was being advanced before him as an application to the Upper Tribunal, not for permission to appeal but as an application to the tribunal to review its decision.

Submissions
12.	The applicant submits that the President's approach in the Ascham Homes case was correct and it also submits that there are sound policy reasons for treating appeals to the Upper Tribunal from the LVT differently from appeals to the Upper Tribunal from the First-tier Tribunal.  In the latter case the appeal is on a point of law only, whereas in the former case the grounds of appeal are not so limited and the Upper Tribunal may well deal with the matter by way of a complete rehearing with new evidence. 

13.	In a supplementary skeleton the applicant also makes the point that there is a need for a clear timetable for making an appeal against an Upper Tribunal's decision to refuse permission to appeal against an LVT's decision because it is necessary to decide when an LVT's decision becomes final.  It is necessary to know that because it will determine when the two month “appropriate period” will begin to run during which certain procedural steps must be taken.  

14.	In a nutshell, the applicant's submission is founded on the proposition that Section 13(1) refers to a decision made by the Upper Tribunal other than an excluded decision; and if one then goes to subsection (8)(c) it is submitted that it is clear that a decision in subsection 13(1) must include a decision to refuse permission to appeal because paragraph (c) expressly provides that a decision of an application under Section 11(4)(b) -- that is to say, an application for permission for leave to appeal -- is an excluded decision.

15.	The respondent submits that the President's approach in the present case was correct.  The Lane v Esdaile principle to which the President referred, that a statutory provision requiring permission to appeal impliedly excludes an appeal against the refusal of permission to appeal in the interests of finality, so that there can be no further appeal unless a right of appeal against the decision to refuse permission to appeal is expressly granted by the statute, applies.  The respondent submits that the framework provided by the 2007 Act, particularly in Section 13, is looking forward to a time when there is full integration of all the various tribunals into a First-tier Tribunal and Upper Tribunal structure.  In those circumstances all appeals to the Upper Tribunal from the First-tier Tribunal will be made under Section 11 of the 2007 Act.  It is submitted that until that time happens there is no intention to be implied from Section 13 to alter the position that prevailed prior to the enactment of the 2007 Act, which was that there was no right to appeal against decisions of the Lands Tribunal refusing permission to appeal from the LVT.   

16.	Putting the 2007 Act to one side for the moment, the position under the 2002 Act was perfectly clear; there was no right to appeal to the Court of Appeal against the Lands Tribunal's decision to refuse permission to appeal from a decision of the LVT: see the Sinclair Gardens Investments case which was cited by the President in his refusal of permission to appeal in the present case.

17.	The respondent's central submission is that that position is unchanged by the 2007 Act.  It is perfectly true that section 13(8)(c) provides that a decision of the Upper Tribunal refusing permission to appeal under Section 11(4)(b) is an excluded decision against which there can be no appeal to the Court of Appeal, but section 13(8)(c) does not apply to the present case precisely because the appeal is not an appeal under Section 11 of the 2007 Act; it is an appeal under Section 175 of the 2002 Act, and there is no provision in either the 2002 Act or the 2007 Act which expressly confers a right of appeal against a refusal of permission to appeal under Section 175(2). In summary, the reference to a decision in Section 13(1) of the 2007 Act does not include a decision to refuse permission to appeal under Section 175(2).  

Discussion
18.	For my part, I would accept the respondent's submissions.  In my judgment, it is plain from the Sinclair Gardens Investments case ([2004] EWHC 1910 (Admin)) that there was no right of appeal against a refusal by the Lands Tribunal of permission to appeal against an LVT's decision.  Applying the Lane v Esdaile principle, the Lands Tribunal's decision to refuse permission to appeal was not a "decision" for the purposes of Section 3(4) of the Lands Tribunal Act 1949, which then conferred a right of appeal to the Court of Appeal against the Lands Tribunal's decisions.

19.	That position is not affected by the fact that the Lands Tribunal is now the Upper Tribunal (Lands Chamber) and the right of appeal against the decision of the Upper Tribunal is now conferred by Section 13(1) of the 2007 Act.  It is understandable that the draftsman of the 2007 Act should have wished to make it clear beyond any doubt in a comprehensive statutory scheme dealing with appeals from the First-tier Tribunal to the Upper Tribunal that the Lane v Esdaile principle applies to refusals of permission to appeal under Section 11(4)(b).  In effect what the applicant is seeking to do is to convert an express exclusion of a right to appeal against refusals of permission to appeal in Section 11 cases into an express provision of a new right of appeal against refusals of permission to appeal in Section 175 cases, thereby effectively overturning the decision in Sinclair Gardens Investments.  In my judgment such an intention is not to be imputed to the draftsman of Section 13 of the 2007 Act.  I accept the respondent's submission that it was unnecessary to include a decision to refuse permission to appeal under Section 175(2) in the list of excluded decisions under Section 38 of the 2007 Act because the position, so far as appeals from the LVT to the Lands Tribunal was concerned, was governed by clear authority in the form of Sinclair Gardens, which had made it quite clear that there was no right of appeal against such decisions.  

20.	Although the applicant sought to draw some comfort from the Supreme Court's decision in Cart, it seems to me that no such comfort can be drawn; the Supreme Court's decision was based on the underlying premise that there was indeed no right of appeal against decisions of the Upper Tribunal refusing permission to appeal from the First-tier Tribunal. Against that background it seems to me that Cart can provide no support for the applicant's position and, as the President observed in his decision refusing permission to appeal, it is indeed consistent with the view that there is no right of appeal in respect of decisions to refuse permission to appeal under Section 175(2).

21.	None of the policy/practicality reasons referred to by the applicant are, in my judgment, sufficient to oust the application of the Lane v Esdaile principle as it was applied in Sinclair Gardens to decisions under Section 175(2).  In practical terms, protective applications within the two month appropriate period will still need to be made, whichever court is to decide the merits of a challenge to a decision by the Upper Tribunal (Lands Tribunal) under Section 175(2).

Conclusion
22.	For those reasons I would decide that there is no right of appeal to the Court of Appeal against the President's decision and that a challenge to that decision must be made by way of an application for permission to apply for judicial review in the administrative court.

Lord Justice Lloyd: 

23.	I agree.

Order:  Application refused