Southern Land Securities Limited v Zelda Reynolds

Introduction

1. The overriding objective of the First-tier Tribunal, Property Chamber (the FTT) is to deal with cases fairly and justly. As rule 3(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 explains, dealing with cases fairly and justly includes dealing with them in ways which are proportionate to the importance of the case, avoiding unnecessary formality and seeking flexibility in the proceedings, ensuring, so far as practicable, that the parties are able to participate fully in the proceedings, and using the FTT’s special expertise effectively.

2. The basic issue in this appeal is whether the FTT dealt fairly and justly with an application by the respondent, Ms Zelda Reynolds, for a determination under section 27 A, Landlord and Tenant Act 1985 , in respect of service charges claimed by the appellant, Southern Land Securities Ltd (SLS), following work it commissioned to the exterior of Nos. 20-26 Elmwood Road in Croydon.

3. SLS owns the freehold of Nos. 20-26, which are two adjoining buildings separated by a shared private drive, each containing eight flats. One of the flats, No.20B, is owned by Ms Reynolds under a lease granted in 1976 for a term of 120 years. Under the lease SLS is required to provide services, including keeping both buildings in repair, and Ms Reynolds is required to pay service charges equal to one sixteenth of the cost of the services provided. The costs which may be recouped by SLS are limited by section 19(1) , Landlord and Tenant Act 1985 which provides that costs are to be taken into account in determining the amount of a service charge payable only to the extent that they are reasonably incurred and only if the services or works provided are of a reasonable standard.

4. In 2022 SLS incurred costs of £103,414 including VAT and professional fees in carrying out work to the exterior of the buildings comprising repair, redecoration and roofing works. Ms Reynolds disputed her liability to pay for the work on a number of different grounds, all but one of which were rejected by the FTT after a hearing at which SLS was represented by counsel and Ms Reynolds represented herself. But the FTT disallowed almost the whole of the cost of the redecoration, reducing the sum recoverable to £40,000 on top of which it allowed professional fees of 10% plus VAT, producing a total figure of £52,000.

5. The reason the FTT gave for disallowing the cost of the redecoration works was that it accepted Ms Reynold’s own evidence that the work had been done poorly and would need to be done again. It described Ms Reynolds’ evidence as “uncontested”.

6. SLS now appeals with the permission of this Tribunal. It challenges the FTT’s approach to the evidence and its suggestion that Ms Reynolds’ evidence was uncontested. It submits that the finding that the redecoration work carried out by its contractor was of such a low standard that it was effectively worthless was not open to it on the evidence, and that in reaching that conclusion it ignored the material put before it by SLS.

7. At the hearing of the appeal SLS was represented by Mr Ben Maltz and Ms Reynolds was represented by Ms Olivia Ford. Neither counsel had appeared at the FTT. I am grateful to them both for their assistance. The works

8. Nos. 20-26 Elmwood Road are managed on behalf of SLS by Together Property Management (TPM). On 19 July 2021, TPM instructed a firm of Chartered Building Surveyors, James Dean Associates (JDA), to prepare a specification for external decoration works to the buildings and to act as Contract Administrator under a JCT standard form of contract. The Surveyor at JDA responsible for the instruction was Mr Froud. The agreed fee for these services was to be 10% of the contract price. TPM charged SLS a separate fee of 5% of the contract price.

9. The specification prepared by Mr Froud was the subject of consultation with leaseholders in September 2021, but it was not until June 2022 that tenders were received from three contractors. Before tenders were sought TPM had informed leaseholders that the work was expected to cost £40,000 but warned that maintenance costs were rising sharply and that the total cost would not be known until a tender had been accepted. In the event, the lowest tender was from Hendersons Building Services; it costed the works at £80,800 and its tender was accepted.

10. The work began towards the end of 2022 and lasted 14 weeks, reaching the snagging stage on 18 February 2023 when Mr Froud inspected and took photographs of the works. He drew up a snagging list of 25 items, most illustrated with a photograph. The contractor attended the buildings in August 2023 to complete the works on the list and Mr Froud recorded on 31 August that snagging had been attended to and that he had certified the final contract payment.

11. As the snagging items were being dealt with additional items were identified by one of the leaseholders who pointed out on 30 August that a door number had been over-painted and keyhole fittings had not been replaced, that there was paint spatters on one of his rear windows and that one of his front windows would not open. On 31 August 2023 Mr Froud informed TPM that he would ask the contractors to deal with these items, and on 25 September (after access had been arranged with the leaseholder) it was reported that the additional work would be done on 3 October. The written material does not indicate whether these additional snagging items were ever attended to.

12. The total sum certified by Mr Froud as the value of the works was £42,700 for Nos 20-22, and £33,310 for Nos. 24-26. The buildings are the same size but on one the exterior walls are rendered and painted, while on the other they are predominantly unpainted brick, which I assume accounts for the difference in the assessed value of the work done. VAT and the fees of JDA and TPM were added to the total of £76,010. The FTT proceedings

13. Ms Reynolds submitted her challenge to the works to the FTT on 27 December 2023. As requested in the FTT’s standard form she provided an outline of her case which identified her dissatisfaction with the consultation undertaken before the works, the schedule of works itself (which she believed was insufficiently detailed), and the scope of the works (which she believed went beyond what was required by SLS’s covenant). She also identified four items from what she described as “a catalogue of examples of poor workmanship”. These were:

1. Painting without dustsheets leaving paint damage which had not been cleaned and still remained;

2. Painting of doors using a dark undercoat which showed through the topcoat to produce “a disgraceful result that can be clearly seen”;

3. Scaffolding left for weeks at a high cost to lessees; and

4. Property damaged and left unrestored.

14. The FTT gave standard directions for the preparation of the case for hearing. These first required SLS to provide details of service charges demanded and payments made. Ms Reynolds was next directed to produce: a schedule setting out each item in dispute, the reason for the dispute, and the amount, if any, which she was prepared to pay for the item; any documents or photographs on which she intended to rely; a statement setting out the relevant terms of the lease and any legal submissions which had not already been included in the schedule of disputes; and “any signed witness statements of fact upon which the tenant relies”.

15. The directions required SLS to respond to the disputes raised by Ms Reynolds by completing the “landlord’s comments” column in her schedule. It was to produce any documents or photographs it relied on and any witness statements on which it relied. No advice was given about the form or content of these witness statements.

16. The standard directions then gave both parties the opportunity to provide further witness statements, one month after the landlord had complied with the original direction to complete the schedule and produce any witness statements on which it relied. In contrast to the previous directions in paragraphs 3 and 4, this direction (in paragraph 6) gave detailed instructions about the preparation of the witness statements: they were to provide details of the case name and number, be set out in numbered paragraphs, and end with a statement of truth signed by the witness. The originals of the statements were to be brought to the hearing, and the witnesses were required to attend for cross examination unless their statements had been agreed by the other party.

17. The directions did not explain the relationship between the witness statements which the parties were given the opportunity to produce by paragraphs 3 and 4, and the statements referred to in paragraph 6. Nor did the directions say anything about the status of the schedule of items in dispute and the comments made on them in that document. Nor did the directions require that either the schedule of disputes or the statements of the parties were to be supported by a statement of truth.

18. In the event, both parties produced a hybrid document in response to the directions (Ms Reynolds also served three witness statements prepared by her neighbours). Ms Reynolds completed the schedule of disputes and provided a document headed Applicant’s Statement of Case, which combined her evidence and her submissions on the law. SLS did exactly the same, by completing the schedule of disputes, which eventually ran to 27 pages, and providing its own Respondent’s Statement of Case. This document was stated to be based on information from SLS’s managing agents, TPM, and addressed points made by Ms Reynolds about consultation and agents fees. It also responded to a point made by Mr Fraser, one of the leaseholders who had produced a witness statement in support of Ms Reynolds’ case, about damage to his windows. It ended with a statement of truth which was signed simply “SLS”. The statements of truth on both parties statements of case began with the words “I believe that the facts stated in this witness statement are true”.

19. The parties’ statements of case and schedule of disputes were lengthy documents and it is necessary to refer only to those parts which relate to the issue on which the FTT eventually found entirely in Ms Reynolds’ favour, namely the quality and value of the works.

20. At paragraphs 31 to 48 of her statement of case Ms Reynolds made observations on the standard of the works. Some of these related to three items affecting her own flat, No.20B: the front door had been painted black by the contractor, and had then been repainted its original red at the request of the leaseholder, but the black still showed through in some areas; only one coat of paint had been applied to the back door of the same flat, some of which had come off; and the leaseholder had reported a crack in a rear window which had not been present before the painting began, but which had not been repaired. None of the remaining comments identified specific defects in particular locations.

21. So far as they related to the quality of the work in other locations, Ms Reynolds’ comments were more generic: paint had dripped from the exterior walls onto balcony railings and had never been rectified; paint had dripped from exterior walls onto steps and other areas; in some areas paint had blistered; some rubbish had been left at the front of the building on the pavement and in the garden which had been cleared by residents.

22. The remaining comments in this section of Ms Reynolds’ statement of case did not raise issues about the quality of the work but commented on work which was said not to be chargeable because it was an improvement, on the cost of the work, on the use of contingencies, on communication during the work, on the connecting of an alarm to the scaffolding and on the risk of burglary.

23. Although, once completed, the schedule of disputes ran to 27 pages, it said little about the quality of the works. The main comment provided by Ms Reynolds was the following: “poor workmanship in some of the works lack of dexterity and equipment resulting in damage to property”. The response provided by SLS was equally general: “we would refute this statement based on the condition of the property following the major works”. Ms Reynolds also raised a number of more specific points, each of which was responded to concerning the condition in which satellite cables had been left, windows which were said to have been painted shut, and debris not cleared from the site. In their response SLS referred to photographs of cables, attendance by the contractor to correct windows and asserted that the property had been left clean and free of debris. It also gave an account of the snagging visits and relied on the photographs in the snagging report.

24. Three of Ms Reynolds’ neighbours provided witness statements. These commented on the issues raised by Ms Reynolds about consultation, improvements and affordability, but said little about the quality of the works. Ms Bell described the work done but her only criticism was that the new white paintwork applied to the doors of her flat had faded after a year. Mr Fraser referred to the number on the front door of flat 24B having been overpainted and damage to lawns and external fixtures, some of which had not yet been attended to, and to a scratch on the glass on one of his windows which had not been present before the works. Ms Terrano said simply that residents were being asked to pay for “poor quality work”.

25. Both parties produced photographs. Ms Reynolds provided undated photographs many of which were taken while the work was in progress (as the scaffolding can be seen). Some of these showed paint splashes on balcony railings, her red door with areas where the top coat had cracked off revealing the black coat underneath, a cracked window, cracked slates at the base of a flank wall, and debris in the garden. SLS provided the snagging schedule which showed the items which Mr Froud had considered needed attending to when he inspected on 18 February 2023. Of relevance, these included specific examples of paint having dripped onto adjacent walls and windows, damage to the front steps, cracked slates at the foot of a flank wall (which were said already to have been replaced), an additional coat of paint required to one door, and the removal of materials and debris from the garden.

26. At the hearing of the application Ms Reynolds represented herself and SLS was represented by counsel (not Mr Maltz). None of Ms Reynolds’ neighbours attended with her and there was debate about the status of their witness statements, which the FTT agreed to consider but gave little weight to. Two members of SLS or TPM’s staff and a surveyor (I presume Mr Froud) also attended the hearing. The FTT asked if they were present as witnesses but was told by counsel that they were not and had not produced witness statements, but that they were able to answer any questions the FTT might have. As it later recorded in its decision the FTT responded negatively to that suggestion: “We made clear that we would not ask them any questions, and they decided to leave”. The FTT’s decision

27. The FTT noted early in its decision that “the actual evidence we were provided by the parties … was limited”. It listed the evidence relied on by Ms Reynolds and decided to admit the statements of her three witnesses, although they were not present. It observed that the evidence provided by SLS comprised its comments in the schedule of defects, its statement of case and the other documents it had provided. It noted that the statement of case included a witness declaration “but it was signed in the name of the respondent company not by an actual witness, and is therefore not a witness statement”. It noted that the statement of case took no issue with Ms Reynolds’ case regarding the quality of the works, but did not refer to what was said about that issue in the schedule of defects.

28. The FTT then considered submissions made on behalf of SLS by its counsel about the limited evidence before it: “We were, he submitted, presented with limited evidence on which to make our decision. However, as we said at the time, we did have evidence. We have the evidence – both oral and written - of the applicant herself. We were invited by Mr White to draw inferences from the failure of the applicant’s witnesses to attend the hearing, which to some extent we have, but the fact is that there is an inescapable inference to be drawn from the fact that the respondent has not put forward any witness whatsoever to counter what has been said by the applicant.”

29. The FTT next rejected Ms Reynolds’ complaints about consultation and improvements. It commended SLS for engaging “a properly qualified chartered surveyor in connection with the works” (a reference to Mr Froud) but decided that the charge for professional fees should be limited to 10% rather than 15%. It then considered the quality of the works. It noted that the issue had been clearly raised by Ms Reynolds. It answered SLS’s reliance on the fact that some of Ms Reynolds’ photographs showed the work while it was underway, not after it had been completed, by saying this: “That is a fair point, and the most that Mr White could do, but the fact is that the photographs were provided to support the applicant’s evidence otherwise. The photographs were of assistance to us, and we were grateful for them, but the applicant might well have not provided photographs, and simply told us the works were conducted poorly. Not only has no one from the respondent’s side provided any witness evidence to contradict the applicant’s evidence (even ignoring the three other witness statements provided by the applicant), but in their statement of case they didn’t indicate that her evidence was disputed about the quality of the works at all – despite having gone so far as to take issue with a small part of the witness statement of Mr Fraser (a witness for the applicant) as regards a broken window. In fact, it is clear from email correspondence in the bundles and from the respondent’s comments in the Scott Schedule that there were at least some elements of the works which they thought likely required attention too.”

30. The FTT acknowledged that “the detail provided regarding which part of the works were not of satisfactory standard was a little difficult to follow” and described many of Ms Reynolds complaints as “largely irrelevant to the question of whether what the leaseholders were provided by the works was reasonable in standard and amount”. Nevertheless: “The applicant identified that the external decorations were of poor quality, with damage to doors and windows and paint splashes across banisters and the like. The decoration works, she averred, would need to be redone.”

31. Excluding work to downpipes and guttering, which was not criticised by Ms Reynolds on grounds of quality, the FTT calculated that the decoration works had cost £36,600, and went on: “We would therefore find that the costs of the works themselves should be reduced to £39,410 + VAT – accepting as we do (and largely must) the applicant’s uncontested evidence that those works were done poorly and require redoing. However, the applicant had averred that she would consider the original estimate of £40,000 plus VAT a reasonable sum for the works carried out. We are therefore limited to that figure, and accordingly find that the cost of the works should be reduced to £48,000, being £40,000 plus VAT.” The appeal

32. The principal ground on which permission to appeal was granted concerns the adequacy of the FTT’s treatment of SLS’s case and of the evidence which was provided to support it. Having regard to its own directions, which required SLS to respond to Ms Reynolds complaints in the schedule of defects, it was suggested that the FTT had failed to give adequate consideration to the case recorded in that document and in the other supporting documents it had provided and had accepted Ms Reynolds case without subjecting it to scrutiny.

33. It is important to repeat at the outset that this Tribunal will only interfere with the factual findings of the FTT, or with its evaluative findings (including findings in respect of the quality and value of works which are the subject of service charges) in very limited circumstances. The relevant principles were discussed and summarised by Lewison LJ in Walter Lilly & Co Ltd v Clin [2021] EWCA Civ 136 at [85]-[87], as follows: “85. In essence the finding of fact must be plainly wrong if it is to be overturned. A simple distillation of the circumstances in which appellate interference may be justified, so far as material for present purposes, can be set out uncontroversially as follows: i) Where the trial judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support; ii) Where the finding is infected by some identifiable error, such as a material error of law; iii) Where the finding lies outside the bounds within which reasonable disagreement is possible.

86. An evaluation of the facts is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the trial judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.

87. The degree to which appellate restraint should be exercised in an individual case may be influenced by the nature of the conclusion and the extent to which it depended upon an advantage possessed by the trial judge, whether from a thorough immersion in all angles of the case, or from first-hand experience of the testing of the evidence, or because of particular relevant specialist expertise.”

34. The importance of these principles and their application to appeals from the FTT was recently reiterated by the Tribunal (HHJ Johns KC) in Lewis-Han v Williams [2025] UKUT 401 (LC) , at [24].

35. For SLS, Mr Maltz attacked the FTT’s conclusion that the decorations carried out at a cost of £36,600 were valueless. He submitted that the FTT had acted contrary to the overriding objective in its approach to the case, and that its finding was plainly wrong by reason of the following identifiable errors.

36. First, he submitted that the FTT was wrong to criticise SLS’s statement of case for the fact that it was signed by the company and not by an individual.

37. Secondly, the FTT had been wrong to draw an adverse inference from the fact that SLS had not filed and served any witness statements, despite such statements plainly not being mandatory under paragraph 4 of the directions.

38. Thirdly, the FTT failed to attach proper weight to SLS’s detailed responses as set out in the schedule of disputes, which had been provided in accordance with the directions.

39. Fourthly, the FTT should have allowed SLS’s surveyor and agents to take part in the hearing to respond to the quality of works issue.

40. Fifthly, the FTT should have acknowledged the fact that Ms Reynolds raised the quality of works issues in the schedule of disputes in only the most general terms.

41. Finally, Mr Maltz submitted that the FTT should have undertaken a site inspection rather than accepting that the quality of the works was adequately represented by the photographs produced by Ms Reynolds and her commentary on them.

42. For Ms Reynolds, Ms Ford submitted that SLS had not complied with the FTT’s procedural directions, it had not addressed the issues about quality of works raised in her statement of case and had provided no witness statements. The FTT had accordingly been entitled to give no weight to SLS’s factual case and was left with no evidence other than Ms Reynolds’ own, which it was entitled to accept. Discussion

43. I granted permission to appeal in this case not because SLS’s position invites sympathy from the Tribunal. On the contrary, it is clear that it was poorly prepared for the hearing and was caught out by the FTT’s unwillingness to accommodate the way in which it had hoped to present its case. It might be said, as Ms Ford in effect submitted, that it has only itself to blame.

44. The reason I granted permission to appeal was the clear impression I formed, which has been borne out by closer scrutiny, that the FTT adopted an impermissibly technical and legalistic approach to the material relied on by the parties and lost sight of its own overriding objective of dealing with cases fairly and justly. It had all the tools necessary to discharge its function fairly, but instead of examining each party’s case critically, it allowed SLS’s procedural shortcomings to become the determining factor in the proceedings and reached its conclusion in Ms Reynold’s favour by default.

45. The first example of the FTT taking a technical or legalistic approach was in its observation that the statement of case provided by SLS bore a corporate signature, rather than that of an individual, and so could not be relied on as a witness statement. This characterisation led the FTT to proceed on the basis that SLS was not entitled to rely on any of the material it had prepared.

46. There is no reference in the Rules to a statement of truth (or what the FTT called a “witness declaration”) and no requirement that a statement of case or even a witness statement be supported by a statement of truth. The statement of truth is a feature of civil litigation i.e. litigation conducted in the civil courts, and its adoption by tribunals is an example of the creeping harmonisation of tribunal procedure with the practices of the courts. This harmonisation is convenient to those who are familiar with the Civil Procedure Rules which guide the courts. But the Civil Procedure Rules have no application in tribunals (except sometimes by analogy), and care is required to avoid compromising the objectives of dispute resolution in tribunals which emphasise flexibility and proportionality. The Civil Procedure Rules devote an entire rule, CPR 22, and a separate Practice Direction, PD22, to the statement of truth and include detailed provisions dealing with the circumstances in which one is required, who may sign it, what it must say and the consequences of it being omitted. These rules and safeguards are entirely absent from the FTT’s Rules. While lawyers familiar with litigation practice may understand what a reference to a statement of truth might be intended to import into the tribunals’ sphere, the language of the Civil Procedure Rules is not spoken or understood by most tribunal litigants. It is the technical language of lawyers, inaccessible and unexplained.

47. Tribunal rules are inherently flexible and the Rules leave the FTT as the master of its own procedure. That autonomy is made explicit by rule 6(1) which provides that, subject to compliance with statute, the FTT may regulate its own procedure. The FTT is therefore entitled to require that a statement of truth be provided on any document it specifies, and it is clear from paragraph 6 of the directions in this case that it routinely does so for some witness statements. But the FTT is also required by rule 3(3) to seek to give effect to its overriding objective of dealing with cases fairly and justly. That requires, in particular, that the FTT should avoid unnecessary formality, and to ensure as far as practicable that parties are able to participate fully in the proceedings. A formal procedural requirement, such as a direction that witness statements should be supported by statements of truth, should not be allowed to become an obstacle to full participation in FTT proceedings.

48. In this regard it is relevant to draw attention to the FTT’s specific rules about evidence, which are contained in rule 18 (and in rule 19 as far as expert evidence is concerned). By rule 18(1)(g) the FTT may give directions about the manner in which evidence is to be given, which may be orally or in writing. By rule 18(6) the FTT may admit evidence which would not be admitted in a civil trial and may exclude evidence which would otherwise be admissible (including evidence not provided within the time allowed or in the manner required by a direction). By rule 18(7) the FTT may permit or require a witness to give evidence under oath.

49. When considering issues of procedural compliance and the consequences of non-compliance reference should always be made to rule 8(1), which states the important principle that an irregularity resulting from a failure to comply with any procedural rule or practice direction or case management direction does not render the proceedings as a whole or any step in them void. In every case of non-compliance the FTT has a decision to make, whether to waive the requirement, require that the failure be remedied, or impose some sanction (rule 8(2)).

50. It is clear that, as far as the FTT’s Rules are concerned, there is no list of requirements which must be satisfied before evidence can be received. It is left to the good sense of the procedural judge who gives directions and of the panel hearing the case, all of whom will be guided by the overriding objective. The power to admit evidence in writing and the absence of any requirement for evidence to be given under oath lean strongly against any inflexible practice of requiring witnesses to attend before their evidence will be considered, or of rejecting evidence which could otherwise be admitted simply on the grounds that it is not supported by a statement of truth.

51. It is clear from the FTT’s decision that time was taken up at the beginning of the hearing dealing with issues about the admissibility of evidence. Counsel for SLS seems to have been the originator of that diversion, or at least an enthusiastic participant, as he sought to persuade the FTT to exclude the evidence of Ms Reynolds’ neighbours who had not attended. Given the relaxed approach taken by SLS to the evidence it wanted to present, that was a high risk strategy. The FTT dealt entirely appropriately with that suggestion, indicating that it would give such weight to the evidence of the witnesses who were not present as seemed to it to be justified (which eventually was next to none at all).

52. But the FTT took a different approach to the material provided by SLS. It is clear that it was heavily influenced in its approach to the evidence by the failure of SLS to provide a formal witness statement. It does not appear to have asked itself (or to have been invited to consider) whether it was possible to cure any defect preventing SLS’s statement of case and its elaborate responses to the schedule of disputes, from being received as evidence. It would have been a simple matter, and would have involved no unfairness, for one of SLS’s agents or Mr Froud, its surveyor, to be invited to confirm that the statements of fact in the statement of case and schedule were true. I question whether even that would have been necessary, since the FTT has the power to receive evidence in writing and could have given the documents such weight as evidence as it considered appropriate even without requiring that they be verified by a statement of truth. The statement of case, together with which the schedule was directed to be served, already stated that it had been compiled by SLS’s agents, who were sitting in the tribunal room and who had come ready to answer the FTT’s questions. In my judgment for the FTT to give no weight to SLS’s case because of the form in which it was presented, notwithstanding the attendance of those who had provided the information contained in it, fell short of the requirement to give effect to the overriding objective when exercising the FTT’s powers.

53. I do not think Ms Ford’s submission that SLS was professionally represented, and should have been capable of looking after itself by making any application it thought necessary is a sufficient answer. SLS and its representatives obviously attended expecting that its surveyor and agents would be able to answer any questions the panel might have. That was not an unreasonable expectation. The impression given by the FTT’s directions is that the schedule is the critical document which should contain the landlord’s response to the tenant’s case. Nowhere did the directions say that the material included in the schedule or elsewhere in either party’s written case would only be considered if a witness statement confirming it had first been provided. Whether or not the FTT was willing to receive oral evidence, it was not entitled to treat Ms Reynolds’ case as unopposed.

54. It is clear that the FTT did treat Ms Reynolds’ case as unopposed and accepted it, on the issue of the quality of the works, for that reason. That is most apparent from the passage quoted above: “… accepting as we do (and largely must) the applicant’s uncontested evidence” indicating that the FTT felt it was obliged to accept Ms Reynolds’ evidence. It is also apparent in what the FTT had earlier said about the absence of detailed evidence: “… the fact is that there is an inescapable inference to be drawn from the fact that the respondent has not put forward any witness whatsoever to counter what has been said by the applicant.” The FTT did not say what that inescapable inference was, but I assume it meant that because no witness had been put forward to contradict Ms Reynolds’ evidence, the FTT was entitled to infer that there was nothing that could be said against it and that it could safely be accepted as true. If that is what the FTT meant it was in error. No such inference was possible in the face of the written material provided by SLS, which in terms refuted the allegation of poor workmanship, or after a consideration of the snagging report prepared by Mr Froud and the correspondence about it. Nor was any such inference possible in the face of the attendance of the surveyor who supervised the work and two colleagues for the specific purpose of answering questions.

55. It was obvious from the material before the FTT that there was a live issue between the parties about the quality of the works which needed to be determined. It was not as neatly packaged as it might have been, but both parties had substantially complied with the FTT’s directions and there would have been no difficulty or unfairness in the FTT hearing both sides of the argument. Ms Ford emphasised that SLS had not responded in its statement of case to the points made by Ms Reynolds in her statement of case about the quality of the work. The FTT noted and relied on that omission. But that criticism is based on an assumed set of rules about how the proceedings were to be conducted (based on knowledge of how civil litigation is generally conducted) which were not laid down in the FTT’s own directions. Those directions did not require either party to produce a document described as a statement of case, they required the completion of a schedule in which disputed items were to be identified, and the dispute was to be explained and answered. Nor did they require a witness statement verifying the contents of the schedule.

56. It is true that SLS filed a statement of case and that it did not deal with the points raised in Ms Reynolds’ statement of case about the quality of works. For the most part it dealt with the duties of the contract administrator, whose engagement Ms Reynolds had objected to. It is equally true that Ms Reynolds’ statement of case contained few details, other than about the doors of her own flat and paint drips on balcony railings and steps. But neither party confined their case to the document titled statement of case and to focus only on that document without also considering the document which the FTT had directed should record the issues, the schedule of disputes, is to see only part of the picture. SLS responded to each of the points raised by Ms Reynolds in the schedule, as it was directed to do.

57. The FTT accepted as uncontradicted Ms Reynolds’ statement that the decoration would have to be redone. It reached that conclusion without referring to the more detailed points made by either party. Had it done so it would have appreciated that those points dealt with a very small number of items which, by themselves, could not possibly justify the conclusion that the whole of the decoration was of no value. Ms Reynolds’ account of asking for her door to be repainted in red, and the unsuccessful finish which was produced, concerned one door in buildings where the front and rear doors of 16 flats were painted. It may be that Ms Reynolds was in a position to give evidence about the doors of other flats, and that the same poor finish was achieved throughout the building, but that was not her written case and only one of her three neighbours raised an issue about her doors. Ms Reynolds relied on photographs of black balcony railings covered in light coloured paint. It is not clear when those photographs were taken but they are wholly inconsistent with the snagging report on which SLS relied in the schedule of disputes which records no such deficiencies, but which identifies instead specific issues in isolated locations where black paint had splashed onto the lighter paint of rendered walls (implying the walls had been painted before the metalwork, not the other way round as Ms Reynolds suggested).

58. The FTT would of course have been entitled to accept Ms Reynolds’ evidence in preference for that of SLS, but only after considering it critically and providing reasons for a conclusion that it was consistent with all of the evidence. I am satisfied that the FTT did not apply that necessary scrutiny or reasoning but instead accepted Ms Reynolds’ assessment of the value of the work as a consequence of SLS’s failure to support its case in a witness statement from one of those who attended the hearing. In taking that approach the FTT overlooked its own directions, which imposed no such requirement, and it prioritised form over content. It overlooked its duty to ensure that both parties were able to participate fully in the proceedings and prevented itself from making effective use of its own expertise. Those were errors of principle and approach which justify, and require, intervention by this Tribunal.

59. Finally, I should address Mr Maltz’s submission that the FTT erred in principle by not inspecting the property. It is possible that the FTT would have had a much better appreciation of the quality of the works and been in a better position to assess their value if it had visited the buildings, but given the view it formed about the consequences of SLS not having made its case in a witness statement it is not surprising that it did not consider it necessary to do so. In any case where the quality of works or the value of property is in issue, the FTT must decide for itself whether an inspection is necessary or desirable to enable it to determine the issues fairly. The answer will depend on the nature of the issues, the quality of the evidence and representation and all of the circumstances of the case. No other general rule is possible. Disposal

60. For these reasons I set aside the FTT’s decision, so far as it relates to the value of the exterior decorations (excluding gutters and downpipes). Mr Maltz did not challenge the reduction in professional fees to 10% of the value of the work and there is no reason to revisit the decision on that issue. Nor have the FTT’s conclusions on the other issues raised by Ms Reynolds been questioned and those conclusions remain binding. The FTT made orders under section 20 C of the Landlord and Tenant Act 1985 and paragraph 5a of Schedule 11 to the Commonhold and Leasehold Reform Act 2002 . I set those orders aside and remit them, together with the application under section 27 A to a differently constituted panel of the FTT for redetermination. If the parties are unable to reach a final agreement satisfactory to them both, they should apply to the FTT within one month of the date of this decision for directions for that redetermination. Martin Rodger KC Deputy Chamber President 23 February 2026 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.