Residents not informed of court decision of a month ago
What are the freeholder’s legal costs?
Right To Manage Federation has said it would pay
Elim Court’s battle to break free of London freeholder Israel Moskovitz and his associate Joseph Gurvits has failed on appeal to the Upper Tribunal.
The ruling on the right to manage application is dated September 10, but residents at Elim Court in Plymouth have still not been informed of the court’s decision by the Right To Manage Federation, which handled the case.
“We have not heard a word,” said resident Janet Inkster. “This is very distressing. People keep coming up to me asking what is going on and we simply do not know. We should have been told what was going on.”
Last night Campaign against retirement leasehold exploitation contacted Keith Phillips, OBE, the former fire service executive who has been assisting the residents, to say that the right to manage had failed.
Phillips, too, is concerned not to have been informed of the decision.
It has been suggested that there were corrections to the ruling, and some sort of embargo imposed.
The open question now is the extent of the legal costs for freeholder Avon Freeholds, owned by Mr Moskovitz, which was represented by a full legal team including a barrister.
These could be many thousands of pounds and the Right To Manage Federation has said it will bear all the costs, not the residents.
On January 13 2013, when Elim Court lost in the Leasehold Valuation Tribunal – more here – Dudley Joiner, of the RTMF, made clear to Campaign against retirement leasehold exploitation that it would bear all the costs associated with the litigation.
“There is no uncertainty over this. The RTMF has said it will pay all legal costs and has already paid out substantial sums for legal costs to date.”
The failure to win the appeal – its third right to manage application – ends a long running saga at Elim Court, which first began the process in June 2011.
Within months of Avon Freeholds buying the freehold and appointing its long-time associate Y and Y Management, headed by Joseph Gurvits, to manage the site the elderly residents of Elim Court have been desperate to be shot of them.
Earlier this year residents at Elim Court won a case against the freeholder relating to service charges, which saw sharp criticisms of Y and Y Management’s administration of the site. More here
Elim Court’s appeal to the Upper Tribunal was one of five right to manage applications presented by the Right To Manage Federation. It lost three of them, including Elim Court.
The Right To Manage Federation was represented by its habitual solicitor Magarita Madjirska-Mossop [spelled wrong throughout the court documents].
The barrister Justin Bates, who defeated Elim Court’s application at the LVT, represented the Moskovitz freehold interests. Mr Bates is highly experienced in fighting off right to manage applications on behalf of his freeholder clients.
He argued that the application was flawed because Dudley Joiner [incorrectly spelled “Joyner” throughout the court documents], of the RTMF, had signed the notice claims with the words “RTMF Secretarial, Company Secretary”, so the form was signed by a company on the applicant company’s behalf. Therefore, it was not validly signed.
Martin Rodger, QC, the Upper Tribunal deputy president, rejected this argument.
Another objection was that the memorandum of association and the articles of association of the RTM company needed to be open for inspection at a specified place in England or Wales for “periods of at least two hours on each of at least three days (including a Saturday or a Sunday or both) within the seven days beginning with the day following that on which the notice is given”.
This had not happened and the Upper Tribunal upheld this objection.
One flat held on a long lease by a landlord was not served a notice to join the RTM application. This “seems to me to be failure of compliance of a different order and to be fatal to the integrity of the statutory process”, said Mr Rodger.
Earlier, Mrs Madjirska-Mossop had argued in the Saturday / Sunday issue for the Upper Tribunal to show what might be termed common sense: “ambiguity ought to be resolved in favour of the RTM company to allow it greater flexibility because, Mrs Mossop submitted, the object of the statute was to provide the qualifying tenants with a simple route to the acquisition of the right to manage. A non-technical approach was therefore valid …”
This argument did not persuade.
Of the five RTM applications the two that succeeded were:
369 Upland Road RTM Company Limited, in London SE22, and Canadian Avenue RTM Company Limited, in London SE6.
Those that failed were:
Elim Court RTM CO Limited, in Plymouth
Farnborough Road (Calloway House) RTM Co Limited
Farnborough Road (Brand House) RTM Co Limited, both in Farnborough, Hants.
The full Upper Tribunal ruling can be read here:
http://www.landstribunal.gov.uk/judgmentfiles/j1072/LRX-25%2081%20%2087-2013.pdf
Related posts:
Israel Moskovitz loses epic Elim Court right to manage battle in landmark Court of Appeal decision
LKP managing agent Jones Associates wins right to manage for retirement site
Should the RTMF be taking the Elim Court battle for right to manage to the Court of Appeal?
Pensioners lose leasehold right to manage application for the third time
Israel Moskovitz fails – again – to appeal against the Regent Court right to manage
Less ‘legal torture’ and more happiness in leasehold, says Sir Peter Bottomley
Given that I have been mentioned by name in the above report and that my organization RTMF is the party that is paying the legal costs, I am surprised and disappointed that I was not consulted before the article was published. Campaign against retirement leasehold exploitation has my personal mobile number.
It is noted that the Upper Tribunal Decision is dated 10th September 2014 and it is implied that the RTMF has been tardy in providing information to Elim Court leaseholders. This is wholly unfounded.
I believe the date of 10th September relates to the date the Decision was first released in draft form to the lawyers. At this stage the content of the draft decision was strictly confidential and for the eyes of the parties advocates only. I understand this is normal practice when the issues are complex. It enables the lawyers to submit any errors of fact, spelling or grammar. The RTMF was not sent and was not entitled to see a copy at this time.
Late in September our solicitor received a communication from one of the solicitors on the other side in relation to costs, which implied the Decision had been formerly published. This prompted our solicitor to call the Upper Tribunal office, who claimed a copy of the final Decision had been sent out to all solicitors on record. Our solicitor advised that she did not receive this copy and duly requested a further copy. The RTMF was first sent a copy of the Decision late on Friday October 10th 2014. Although I understand early publication makes it look more of a journalistic ‘scoop’ I think it is unfortunate the Campaign against retirement leasehold exploitation report was rushed to publication without consultation and before the RTMF had the opportunity to notify the elderly leaseholders involved.
References in the article to potential legal costs raises unnecessary fears in the minds of Elim residents who have already been given assurances the costs will be paid by RTMF. The RTMF has always honored that commitment, as evident from the case of Regent Court in Plymouth, which was also appealed to the Upper Tribunal.
The article summarizes a complex court judgment, which is not easy as the hearing involved five different leasehold estates. Those that attended the hearing, which included leaseholders’ representative Keith Phillips OBE, have complained about the bias of the judge and the bombastic, inquisitorial approach he adopted during Margarita Mossop’s submissions. RTMF intends to complain to the President of the Upper Tribunal about the Judge’s conduct of the case and has ordered a transcript of the hearing, which it will use as evidence for its complaint and for an appeal to the Court of Appeal.
It was the Judge’s determination on two issues that caused Elim to be denied its right to manage.
First was the determination by the judge that “there is no ambiguity in the meaning of section 78(5)(b) “. (The Saturday/Sunday point). Mrs Mossop argued that the ambiguity was self-evident and indisputable because two independent expert tribunals had arrived at two different interpretations of the same section of statute.
Secondly the Judge determined that an equity release company was ‘an intermediate landlord’ and should have been sent a copy of a Claim Notice at its registered office. Mrs Mossop argued that an equity-release company, with no management responsibility, was not a landlord for this purpose.
Further, on both issues, Mrs Mossop argued that there was no evidence of any prejudice resulting from the alleged failures and quoted substantial authority for the proposition that procedural errors where there is no prejudice should not be fatal to an otherwise valid claim. The Judge said it was for the RTM companies to show there was no prejudice. The Judge did not explain how one could prove a negative!
Finally, it is worthy of note that the Judge, Martin Rodger QC, who was appointed in June last year, was previously a barrister at Falcon Chambers throughout the whole his professional career. Opposing Counsel in this hearing was Oliver Radley-Gardner, a barrister from Falcon Chambers.
I apologize to Elim residents who have come to hear of the result third hand. Residents will be formally notified next week.
Dudley Joiner
Director
RTMF
The Elim Court decision was publicly available on the Ministry of Justice website on October 6.