Landlord and tenant – Service charge – Flat
 EWCA Civ 96
12 February 2014
Court of Appeal, Civil Division
Lord Justice Patten, Lord Justice Lewison and Lady Justice Sharp
Mark Tempest (instructed by the Bar Pro Bono Unit) for the tenant.
Philip Rainey QC and Edward Hicks (instructed by Payne Hicks Beach) for the landlord.
Landlord and tenant – Service charge. The tenant leased a flat from the landlord company. He sought orders that the landlord comply with the requirements of ss 21 and 22 of the Landlord and Tenant Act 1985. The judge overturned the decision at first instance that the tenant was not entitled to ask a civil court to grant a mandatory injunction to compel the landlord to comply with his obligations. The Court of Appeal, Civil Division, in allowing the appeal, held that, on a proper construction of the legislation, the first instance decision had been right.
The judgment is available at:  EWCA Civ 96
The tenant leased a flat from the landlord company. The terms of the tenant’s lease required him to pay a service charge. The tenant issued proceedings, seeking orders that the landlord comply with the requirements of ss 21 and 22 of the Landlord and Tenant Act 1985. At first instance, it was held that the tenant was not entitled to ask a civil court to grant a mandatory injunction to compel the landlord to comply with his obligations. The judge overturned that decision (see  All ER (D) 14 (May)). The landlord appealed.
It fell to be determined whether the tenant was entitled to ask a civil court to grant a mandatory injunction to compel the landlord to comply with his obligations.
The appeal would be allowed.
It was well settled that the question whether legislation which made the doing or omitting to do a particular act a criminal offence rendered the person guilty of that offence further liable in a civil action for damages at the suit of any person who thereby suffered loss or damage was a question of construction of the legislation. The starting point was a presumption that, where an Act created an obligation and enforced the performance in a specified manner, performance could not be enforced in any other manner. However, where the only specified manner was a criminal sanction, there were exceptions to that general presumption. The first possible exception was where the legislation in question was passed in order to protect or benefit a particular class of individuals. The second possible exception was where the legislation created a public right and a particular member of the public suffered particular, direct and substantial damage other and different from that which was common to all the rest of the public. In order to fall within the first exception, the legislation had to have been intended to confer on members of the protected class a cause of action sounding in damages occasioned by the breach (see , , ,  of the judgment).
In the instant case, the first instance decision had been right. First, the only sanction that the Act provided for a failure to comply with ss 21 or 22 of the Act was a criminal sanction. If another remedy existed, it had to be by way of necessary implication. Secondly, ss 21 and 22 of the Act or their predecessors had been on the statute book for over thirty years and, apart from increases in the maximum fine from time to time, no change of substance had ever been made to them. Thirdly, during that same period, Parliament had made many changes to the overall statutory regime for the regulation of residential service charges, so it could not be said that the topic had been neglected. Fourthly, during that same period, Parliament had introduced a variety of civil remedies for tenants whose landlords failed to comply with statutory requirements, but had not done so directly in relation to a failure to comply with ss 21 or 22 of the Act. Fifthly, following on from the fourth point, although it had been created piecemeal, there was, in substance, a statutory code. Sixthly, Parliament had explicitly provided for the making of a mandatory order in other circumstances and, if it had chosen to create a remedy in specific circumstances, it was very unlikely that it had intended that same remedy to be available in very different circumstances. Seventhly, the Act itself demonstrated a variety of techniques for imposing civil liability, none of which applied to ss 21 or 22 of the Act. Eighthly, in revisiting the area of the law most recently, Parliament had provided the tenant with a civil remedy, namely, a right to withhold service charge. However, it had not given the tenant either a right to sue in damages or the right to a mandatory injunction (see , , ,  of the judgment).
Doe d Rochester (Bishop) v Bridges [1924-34] All ER Rep 167 applied; Cutler v Wandsworth Stadium Ltd  1 All ER 544 applied; Lonrho Ltd v Shell Petroleum Co Ltd (No 2)  2 All ER 456 applied; X (minors) v Bedfordshire County Council, M (a minor) v Newham London Borough Council, E (a minor) v Dorset County Council  3 All ER 353 considered.
Decision of Mann J  All ER (D) 14 (May) reversed.