PCC in leasehold space [court claim started against MC & PPC]

h2g2

I've recently received the transcript so I can answer a couple of questions now.

To answer Johnersh's notes:

The original costs claim was nearer £10000 (!!!) but my advocate brought it down to £3750. It looks like the court did not accept the wasted costs order so I don't know how much of that relates to the vacated hearing when he didn't show up.

General notes:

It looks like a lot of the hearing taken up discussing whether a clause where the landlord covenants quiet enjoyment can be claimed against the managing company on a tripartite lease. Their advocate argued that quite hard, and it looks like mine struggled to get through. There is a moment where he bring up the "The Landlord and Tenant Act - " but is cut off when the judge asks about implied clauses. After the RTM's advocate gives her take on implied clauses the judge tells me advocate that "the Landlord and Tenant Act 1985 isn't relevant here" and moves on. But my advocate never got so far as to say which version of the act he referred to. (Although IMO Commonhold & Leasehold Reform Act 2002 sections 96 & 97(4) was the correct reference anyway, although quite a few iterations of the Landlord and Tenant Act were updated to clarify that anyone who collects service charge is the landlord for the purposes of the Act.)

Much was made of the fact that PCM had produced their contract with the managing agent which didn't have the RTM company's name on it. Rather than disclaim any relationship to the managing agent they insisted they were a separate party, an independent contractor.

This has led to some things said that are almost funny if they weren't putting me in such an annoying situation:

"This is a separate contracting party, they’re an independent contractor. The claim, it’s the contract with [PCM] who’s not even with my client. It is with my client’s appointed managing agent." (emphasis mine).

"[PCM] has a contract to operate the scheme [...] With our managing agent, not with us."

"Judge, they may be our managing agent but they’re just not us. We’re separate parties."

Just completely ignoring the law of agency. Annoyingly the judge seemed to accept this without question, even chastising my advocate at one point for trying to bring back vicarious liability, saying simply "I see you pleaded this, but they say they didn't."

Where it took a turn for the weird was when the possibility of regulations came up. The RTM's advocate claimed the RTM Company had made a regulation that "you must display a permit and if you don't pay a penalty charge". The judge seemed very taken by the idea, and spends a page or two of the transcript opining on how you must have a permit or the car park is a free-for-all and no-one knows who can park and where.

I was also quite surprised when he commented that we appeared to have tried to "run them to the wire" when awarding costs, given that they did not respond to any pre-action correspondence or complaints (though their agent did, if only to say they were acting under instruction and to bring the complaint to their principal). I'm not entirely sure what the judge thinks we should have done differently.

In any case - witness statement is being updated based on the transcript; an appeal hearing date is set although JY didn't tell me the actual date of it I think it's next month.

h2g2

Update: permission to appeal was refused. The judge reviewing it found the original judge was perfectly entitled to find that vicarious liability and the law of agency does not apply, and declined to consider new evidence submitted.

I'm quite in shock, to be honest, and now will have to pay those adverse costs.

The plan now is to discontinue this case and bring a new case directly against the managing agent instead, citing the findings of this case. How that plays out, I do not know. If the managing agent can back their claim to have acted under instruction by producing a copy of those instructions it seems like a procedural nightmare.

One thing that was mentioned by JY was that I might be able to put in a complaint to the bar association regarding the claim during the original hearing that the managing agent were a separate party, and ask what evidence or instruction that claim was based on, given my evidence to the contrary. I'm not sure what I'd do with any outcome of that, to be honest.

I have to say I'm also not entirely happy with with my representation during this case. There have been some errors in the pleadings that went uncorrected, and I feel it's quite poor to fail to even make it to trial with what feels like quite an elementary case to me. However, given that the case was taken on contingency I'm not sure where that leaves me if I were to want to find alternative representation.

Car1980

The judge seemed very taken by the idea, and spends a page or two of the transcript opining on how you must have a permit or the car park is a free-for-all and no-one knows who can park and where.

Sadly, some judges don't like rocking the boat or interfering with the status quo.

Coupon-mad

"The plan now is to discontinue this case and bring a new case directly against the managing agent instead, citing the findings of this case. How that plays out, I do not know."

I hope that works out for you and I am sorry it hasn't, so far. Onwards and upwards.

ChirpyChicken

You are not the only person to have issues with the firm who has represented you i am sad to say

eddddy

I haven't read the whole thread, so apologies if this has already been discussed and/or rejected...

Taking a step back, if more than 50% of the leaseholders are unhappy about what the Management Company is doing (e.g. hiring a PPC), the leaseholders can use the 'Right To Manage' legislation to take over management of the building and grounds. Subject to meeting a few conditions.

The leaseholders can then hire a new management company, and give them instructions about how they want the car parking managed. (As well as giving the management company instructions on how they want everything else related to the building and grounds managed.)

So instead of 'fighting' with the current management company, the leaseholders would be telling a new management company what to do.