Edward Hicks appeared as junior counsel for the successful appellant, Morshead Mansions Ltd (MML) in this case which concerned whether sections 21 and 22 of the Landlord and Tenant Act 1985 are enforceable by civil injunction. Morshead is a tenant owned landlord company. It sued one of its members, Mr Di Marco for sums due from him as a member pursuant to resolutions passed under its Articles of Association. This method of raising funds was used as an alternative to raising funds via traditional service charge demands. Mr Di Marco objected, raising various defences and counterclaims, including a claim that he could seek a mandatory injunction requiring MML to comply with ss. 21 and 22 Landlord and Tenant Act 1985, which require the provision of a written summary of costs which form part of a service charge, and to inspect documents supporting the summary. Failure to comply is a summary offence attracting a level 4 fine.
Mr Di Marco’s Defences and Counterclaims were struck out by HHJ Hand QC in the Central London County Court in 2012. Mr Di Marco appealed to the High Court and Mann J allowed his appeal in part, finding that a civil court had jurisdiction to grant a mandatory injunction compelling compliance with ss. 21 and 22 LLTA 1985. MML appealed to the Court of Appeal by way of a second appeal.
The second appeal was successful and it was held that ss. 21 and 22 are not enforceable by mandatory injunction in the civil courts. Lewison LJ observed that failure to comply with ss. 21 and 22 is a criminal offence; any other remedy would have to exist by necessary implication. They and their predecessors have been on the statute books for over thirty years during which Parliament made many changes to the overall statutory scheme for regulation of service charges including introducing a variety of civil remedies for tenants whose landlords fail to comply with the requirements of the statute, but none of which apply to ss. 21 and 22. Further, Parliament has now revisited this area of law and the prospective s. 21A provides a civil remedy by way of a right to withhold service charge; it has not given the tenant a right to sue in damages or for a mandatory injunction.
Edward Hicks was the junior to Philip Rainey QC in this case.