Messenex Property Investments Limited v Lanark Square Limited
[2024] EWHC 89 (Ch)
Matthew Blake Jacobs v Chalcot Crescent (Management) Company Limited
9 February 2024
[2024] EWHC 259 (Ch)
High Court
A tenant made changes to their flat, but the landlord said no because of fire safety concerns, specifically about the building's structure. The court ruled the landlord couldn't do that because they hadn't raised that specific structural concern earlier. They also said the landlord should have considered less drastic solutions, instead of just saying no.
Key Facts
- •Matthew Blake Jacobs appealed an order declaring that Chalcot Crescent (Management) Company Limited did not unreasonably withhold consent to alterations to his flat.
- •The alterations were a breach of the lease's covenant against alterations without consent.
- •The Judge found for the defendant based on reasonable concern about fire damage to the building structure, a reason not explicitly pleaded.
- •The appeal raised five grounds, focusing on the lack of pleading, insufficient evidence, and unreasonableness of the refusal.
Legal Principles
In an adversarial system, judges adjudicate on pleaded issues. A judge cannot decide a case on a basis not fairly raised or addressed at trial.
Al-Medenni v Mars UK Limited [2005] EWCA Civ 1041
Unreasonable delay in determining an application for consent does not automatically equate to withholding consent. The question is whether the delay, in the circumstances, amounts to a withholding of consent.
Landlord and Tenant Act 1927, s.19(2)
A landlord cannot justify the reasonableness of a refusal of consent solely on professional advice; the advice's reasonableness must be examined.
No specific case cited, but implied throughout Ground 5 discussion
Permission to amend pleadings late in a trial is only granted exceptionally, requiring a very good reason and potentially an adjournment.
Swain Mason v Mills and Reeve [2011] EWCA Civ 14; Quah v Goldman Sachs International [2015] EWHC 759 (Comm)
Outcomes
Appeal allowed on Grounds 1 and 5.
The judge based his decision on an unpleaded issue (risk of structural fire damage), violating the principles of adversarial justice. Further, the refusal of consent based on structural damage was unreasonable, lacking expert opinion and ignoring a feasible alternative solution.
Appeal dismissed on Ground 4.
The claim of unreasonable delay before 16 July 2020 was not pleaded and is a challenge to a finding of fact that cannot be made on appeal.
Permission to appeal refused on Ground 3.
Ground 3 was not argued at trial and is not a pure point of law, necessitating new evidence.
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