The Benson paradigm

The legislation governing the recovery of expenditure on residential leasehold property is a minefield for landlords and management companies. Until the Supreme Court’s decision in Daejan Investments Ltd v Benson [2013] UKSC 14, [2013] 2 All ER 375 one wrong step tip-toeing through the statutory consultation requirements for major works could preclude recovery of vast sums of money genuinely spent and in the absence of any proven loss to lessees. Benson is a paradigm of:

1. how difficult the business of judging can be;
2. how a party’s determination might, eventually, overturn judicial opposition; and
3. judicial activism.

Daejan lost in the Leasehold Valuation Tribunal (LVT) (three members), lost in the Upper Tribunal (two members), lost in the Court of Appeal (three judges) and only managed a bare majority (3:2) in the Supreme Court. Of the 13 judges who considered the matter, only the correct three (at least so far as Daejan were concerned) found for the landlord and, in doing so, overturned