Top 3 Cases - March 2023 03 April 2023
In this series of articles, we aim to highlight 3 of the most interesting cases in our field decided in the past month. This month: the Supreme Court on statutory interpretation and the Court of Appeal on party walls and summary assessments of costs.
1) Jepsen v Rakusen [2023] UKSC 9
Summary
The Supreme Court confirmed the Court of Appeal’s decision that on the true construction of Housing and Planning Act 2016, a rent repayment order could only be made against the immediate landlord.
Despite accepting that their construction rendered these orders less effective than they might have been if they were available against superior landlords, the Supreme Court favoured the natural meaning of the words in the statute.
Why it’s important
Aside from its obvious importance to any practitioners contemplating applying for a rent repayment order, the single judgment contains a useful example of the application of the statutory interpretation principles. In addition to the natural meaning of the words used in their immediate context, it is necessary to consider other relevant interpretative criteria in order to see whether they support or contradict the natural meaning. Although it gave considerable weight to the natural meaning of the words in context, in this case the Court also considered: the wider legal context of the Act, including the previous law and the other sanctions available against rogue landlords; the resulting practical complexity if the Appellant’s construction were adopted; the pre-legislative materials; and the general rule that a statute is only to be interpreted as penalising a subject if it is clear that was what Parliament intended.
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2) Power v Shah [2023] EWCA Civ 239
Summary
The Court of Appeal upheld the decisions below of both the County Court Judge and the High Court Judge that an adjoining owner cannot use the dispute resolution procedures within the Party Wall etc Act 1996 unless the building owner has served notice under that Act. Any award purportedly given by a surveyor when no notice is served is null and void.
Why it’s important
The decision provides useful confirmation of the scope of the Party Walls etc Act. The Act supplants the common law where it applies, but where no notice is served, the parties’ common law rights remain; an adjoining owner in this position must commence proceedings in the County Court.
In addition, the case provides further guidance on statutory interpretation. Coulson LJ attached great weight to the statutory purpose; Lewison LJ to the existing law when the statute was enacted.
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3) R v SS for Home Department, ex p Isah [2023] EWCA Civ 268
Summary
The Court of Appeal held there is no power under the CPR for a judge to direct a summary assessment by a different judge. A judge has 3 choices: he can undertake a summary assessment on the day; he can adjourn the summary assessment and deal with it himself on another day or on paper; or he can order a detailed assessment by a costs officer. The presence of the word ‘may’ in PD44 paragraph 9.7 was not intended to suggest a further alternative.
Why it’s important
Summary assessments arise frequently. Understanding the options open to the Court is plainly important.
The decision overrules the case of Transformers and Rectifiers Ltd v Needs Ltd [2015] EWHC 1687 which had held that there was no absolute bar on assessment by a different judge. The note in the current edition of the White Book at 44.6.3 should no longer be regarded as good law.
The Court of Appeal recognised that this decision might give rise to inconvenience, particularly where the judge who heard the case is not available for a considerable time. It suggested that the Rules Committee might consider making a change to the rules. However, for the time being, only the judge hearing the case can undertake a summary assessment.
The case also contains an interesting passage on the status of Practice Directions.
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