Ayoade v Bonn [2006] EWLands LRX_139_2005 (17 October 2006)

	LRX/139/2005

	LANDS TRIBUNAL ACT 1949
	
SERVICE CHARGE  Landlord and Tenant Act 1985 s27A  res judicata or issue estoppel  whether LVT had jurisdiction to consider a point which was (or could have been) raised in earlier county court proceedings regarding the same service charge period.

IN THE MATTER OF AN APPEAL FROM A DECISION OF THE LEASEHOLD
	VALUATION TRIBUNAL FOR THE LONDON RENT ASSESSMENT PANEL

BETWEEN	MS JOY AYOADE	Appellant
	and
	MR JEFFERY SAMUEL BONN	Respondent

	Re:	Flat 2B,
	3 Formosa Street
	Maida Vale 
	London W9 1EE

	Before: His Honour Judge Huskinson 

	Sitting at Procession House, 110 New Bridge Street, London EC4V 6JL
	on 7 September 2006

The Appellant appeared in person.
Mr A Redpath-Stevens instructed by New Media Law for the Respondent.

The following cases are referred to in this decision:

New Brunswick Railway Company v BFTC [1939] AC 1
Henderson v Henderson (1843) 3 Hare 114
Taylor v Lawrence [2003] QB 528
Hoystead v Commissioner of Taxation 1926 AC 155

	DECISION
1.	The Appellant appeals to the Lands Tribunal, with permission, from the decision of the Leasehold Valuation Tribunal for the London Rent Assessment Panel (“the LVT”) dated 5 October 2005 whereby the LVT ruled, inter alia, that it had no jurisdiction to deal with part of the matters which the Appellant sought to raise before the LVT.  In summary the Appellant sought to raise in relation to the period 2002/2003 the question of whether she was entitled to certain credits against the amount claimed by the Respondent by way of service charge for that period.  The LVT concluded that by virtue of an order made in the Central London County Court dated 10 December 2003, which was an order made in proceedings referred to in more detail below, the matter which the Appellant sought to raise by way of claimed credit against the service charge for the period 2002/2003 was a matter which had already been dealt with and was therefore res judicata.  The LVT’s decision dealt substantively with certain challenges raised by the Appellant in relation to service charges for the years 2003/2004 and 2004/2005.  
2.	The Appellant sought to challenge various aspect of the LVT’s decision, but the only point upon which the Appellant was granted permission to appeal was as follows:
“Permission to Appeal is GRANTED but limited to grounds (a) and (b), that is whether the service charge should be reduced to reflect sums recovered by the Landlord in a claim against previous building surveyors FOR THE FOLLOWING REASONS: 
(i)	Although issue estoppel may arise in respect not only of issues already decided, but also issues which ought reasonably to have been raised in previous proceedings, it is not clear that money recovered by the landlord in respect of works charged in 2002/2003, would necessarily have been available to reduce the service charge in that period. 
(ii)	It appears that the Leasehold Valuation Tribunal would have jurisdiction to determine whether money was being held by the Landlord on behalf of the tenant because it would appear to be relevant to determining under section 27A of the Act of 1985 the amount payable.
(iii)	There is no reason to doubt the correctness of the Leasehold Valuation Tribunal’s decision as to the reasonableness of the works in eradicating pigeons and protecting drainpipes, nor, subject to enforcement of guarantees, the reasonableness of the price.”
3.	At the hearing before Lands Tribunal the Appellant appeared in person.  I endeavoured to assist her as much as was proper in focussing on the matters in issue and in her questioning of Mr Bonn when he gave evidence.  It was also at one stage necessary to adjourn for about fifteen minutes or so to enable the Appellant to read certain documentation.  The hearing took a full day and concluded just after 6 pm.  
4.	At the outset of the hearing both the Appellant and Mr Redpath-Stevens agreed that the questions for me to decide could be summarised as follows:
1.	Whether the LVT was entitled to consider (rather than the matters not being open to the Appellant through res judicata or issue estoppel):
(a)	whether the Appellant was entitled to a credit of 30% of a sum of £5404 against any of the service charges being considered by the LVT; 
(b)	whether the Appellant was entitled to a credit of £800 against any of the service charges being considered by the LVT
2.	If the LVT was entitled to consider these matters, whether on the merits the Appellant is entitled to one or other or both of such credits.
The Facts
5.	The Respondent is the freehold owner of the premises at 3 Formosa Street.  He runs his hairdressing business in the ground floor of the premises.  The upper parts are divided into three flats each of which is let on a long lease at a low rent.  The Appellant holds under a lease dated 29 February 1988 whereby Flat 2B was demised for 99 years from 25 December 1987.  The term was assigned to the Appellant in 1998.  The lease includes a covenant on the part of the Appellant in Clause 2(9) to contribute 30% of certain expenses to the Respondent (these being the expenses of dealing with the costs of repairs etc to certain parts of the structure and common parts).
6.	Before summarising the facts so far as they are relevant for the present proceedings, regarding the history of the works which were done at the building, I should note the following point.  During the hearing the Appellant offered to explain by reference to photographs the details of the leaks and other difficulties which she has sustained in her enjoyment of her flat at various times during the period from 1999 onwards.  I indicated that I would not be assisted in deciding the matters with which I am concerned by such evidence but I emphasised that I proceeded in this case on the assumption that the Appellant did indeed over a substantial period suffer from such leaks and inconveniences.  So far as concerns the facts prior to 2001 these can be summarised as follows:
(1)	The Appellant purchased her Flat 2B in 1998 and commenced to perform certain works of improvement to it.  Certain problems with the building were soon discovered of such a nature that the Appellant had to involve the Respondent as freeholder.
(2)	It was intended that remedial works to the building should be started in about September 1988 but as it turned out these works were not concluded until about July 1999.  The Appellant complains that for about 8½ months she was unable to occupy her flat because of props and other building material in the flat.  
(3)	The major works were carried out under the supervision of a chartered surveyor namely Mr Anderson.  
(4)	In April 2000 the Respondent sent to the Appellant a demand for £4,720.36 being £3130.70 as the Appellant’s share of the repair works and also including certain claims for rent and insurance etc.  This account was not settled and the Respondent issued county court proceedings, the particulars of claim for which were not before me.  
(5)	The Appellant issued a counterclaim which is at page 51-52 of the bundle, which complained of the flat being uninhabitable and alleged breach of covenant by the Respondent including breach of covenant for quiet enjoyment.  The Appellant claimed compensation for what she described as “loss of habitat”  in effect for her flat not being fit for habitation for the period she complained of.
(6)	The case came before District Judge Haslegrove in the Central London County Court on 20 September 2000 and this resulted in a consent order whereby it was ordered as follows:
“(i)	The defendant do pay to the Claimant by Friday 29 September 2000 the sum of £2,500 and a further £500 upon completion of the sale of Flat B, 3 Formosa Street, London W9.
(ii)	Upon payment of the sum of £3,000 aforesaid the claim do stand dismissed and the defendant shall not be entitled to counterclaim further.
(iii)	There shall be a stay of the proceedings and the directions made on 20 September 2000 upon payment of £2,500 by 29 September 2000.  The stay shall remain in force until further order”.
(7)	There was a dispute in the evidence before me as to the circumstances in which this order was made.  The Appellant contended that the reduction in the Respondent’s claim was solely to recognise her counterclaim for loss of use of her flat.  The Respondent told me that the matter had been called on for hearing before the District Judge and that the Appellant had made clear she would not pay for the cost of the claimed works and the District Judge had indicated that the parties might care to go outside and reach an agreement, failing which the matter would need to be set down for a two day hearing with potential costs of £10,000 or so.  The Respondent said that they did indeed go outside and that the Respondent made clear to the Appellant that the reduction of about £1,700 in his claim was a reduction off the cost of the repair works which had been done under the supervision of Mr Anderson.  It is clear from page 57 of the bundle (a letter dated 1 August 2000 to Mr Anderson from the Appellant) that by the date of settlement the Appellant was already concerned regarding persisting leaks.
7.	Turning now to the events of 2001 and 2002 these can be summarised as follows:
(1)	It became clear to those concerned with the building that there were substantial problems in the major works which had already been done.  A new surveyor, Mr Samuels, was retained.  In due course new builders were also engaged.  The Appellant told me that these new builders came on the scene in about June 2001 to put right the works which had previously been done badly, but that these remedial works did not start until November 2001 and lasted for about two weeks finishing in December 2001.  The Appellant said that in fact she suffered yet further leaks after these works.  
(2)	The Respondent and the other two lessees of flats in the building wanted to pursue a claim against Mr Anderson regarding the costs of the remedial works and the additional fees which had to be paid to Mr Samuels.  The Appellant made clear that she was not happy to be involved in any court proceedings against Mr Anderson.  She claims that she was happy to associate herself with pursuing a claim in correspondence against Mr Anderson, although the Respondent did not accept that she was prepared to do so.
(3)	By a letter dated 20 November 2002 written on behalf of the Respondent to Mr Anderson a claim was made which included the following passage:
“Please take this correspondence as a formal letter before action demanding payment for the costs of the remedial works at six thousands six hundred and eighty-eight pounds (£6,688) plus eight hundred pounds (£800) which we have already offered the Lessee in Flat 3 as a gesture of goodwill given the inconvenience she says she has suffered ....
Any action that [the landlords] are forced to bring shall be on behalf of the Lessor and the two (2) lessees owning Flats 1 and 3 respectively.”
It is accepted that the first time where Flat 3 is referred to this is a misprint for Flat 2B.  Flat 3 is not the Appellant’s flat but it is accepted by the Respondent that the gesture of goodwill was intended to be made to the Appellant.  The second reference to Flat 3 is not a misprint, namely Mr Anderson was being told that the proposed action would be on behalf of the Respondent and the other two lessees (ie not including the Appellant).  
(4)	Mr Anderson replied by a letter dated 30 December 2002 giving his own calculations as to an appropriate sum to pay and enclosing a cheque for £6,204.  He stated in the letter 
“I accept the ‘gesture of goodwill’ you refer to”
Thus the payment made by Mr Anderson can be broken down into £800 (the goodwill payment) and £5,404 (the payment in respect of the complaint regarding the costs of the remedial works).  This sum of £5,400 was at the hearing referred to as “the Anderson Money”.
(5)	The Appellant accepts that she received the letter dated 18 September 2003 at page 72 of the bundle from one of the other lessees giving her the details of the claim against Mr Anderson and the amount paid by way of settlement and how Mr Anderson had broken down these sums.  The letter contained the following:
“the amount therefore for distribution to the lessees was £6,204 less £800, being £5,404.  Whilst I understand that you declined the offered of £800, it is still being held for you”
8.	Turning now to the events of 2003 these can be summarised as follows:
(1)	The Appellant had not been paying her rent or additional rent or service charge to the Respondent.  As a consequence the Respondent issued County Court proceedings in 2003 which, after their amendment, were in the form at page 250 to 251 of the bundle.  The claim included a claim for 
“Payment of outstanding arrears of service charges for the years 2001, 2002 and 2003 in the sum of £516.69, repairs costs outstanding from 2002 £3,302.04”.
(2)	The Appellant, who at that time had legal assistance, served a counterclaim which is to be found between pages 297 and 304.  The counterclaim raised the point that any claim for service charges was subject to the restrictions in section 19 of the Landlord and Tenant Act 1985 and it was denied that the claimed charges were reasonably incurred or that the works to which the charges relate were of a reasonable standard.  The counterclaim went on to contend that the Respondent was in breach of his covenants under the lease by virtue of various alleged wants of condition ‘since the commencement of the [Appellant’s] lease’.  It was alleged also that works had been carried at the premises on behalf of the Respondent that these had not remedied the problem.  The Appellant sought to set off against the Respondent’s claim the amounts claimed by her under her counterclaim.
(3)	The matter came for a hearing before District Judge Langley in the Central London County Court on 8 December 2003.  It is clear from the evidence I heard that this was a full day’s hearing ending somewhere around 7.00pm.  
(4)	There is no transcript of the District Judge’s judgment before me nor is there any agreed note of this judgment.  What I do have are the documents referred to in the next two subparagraphs.  
(5)	By the formal Court Order of 8 December 2003 the learned District Judge ordered as follows:
“1.	Judgment be entered for the Claimant against the defendant in the sum of £3,813.67 and £514.00 interest to date making £4,327.67.
2.	The Defendant do pay the Claimant’s costs of the case summarily assessed in the sums of:
(a)	£3,000 for the period 15 May 2003 to 16 October 2003, such sum not to be enforced until after an assessment of the Defendant’s means pursuant to Section 11 Access to Justice Act 1999; and 
(b)	£3,000 for the period of 17 October 2003 to date.
3.	The Part 20 counterclaim be dismissed.
4.	The Defendant’s application for permission to appeal refused.”
(6)	The Respondent’s solicitors wrote to the County Court asking for details regarding the judgment and received a letter form the Court Service dated 16 August 2006 in the following terms:
“I write in response to your letter dated 8th August 2006 which has been referred to District Judge Langley.  The Judge has read her notes from the hearing including the submissions of both parties and they show Mr Redpath-Stevens of Counsel (for the Claimant) submitted in closing that the matters concerning Mr Anderson was compromised in the previous proceedings and that (the Claimant) recovered monies from Mr Anderson and (the Claimant) gave refunds to the other lease holder and offered one to the Defendant who refused it.  In cross examination, the Defendant agreed that she failed to join/assist the Claimant in suing Mr Anderson but she confirmed the Claimant offered and return monies (to her) when he had settled the claim against Mr Anderson and the Defendant refused to accept it. 
The Judge states that without a transcript and with the passage of time that has passed, she is unable to say what finding she made about this in her judgment.  The Court retains tapes of hearings for 3 years and a transcript of the hearing/judgment can be applied for on form EX107.”
(7)	So far as concerns oral evidence, the Appellant accepted before me that she tried to argue before the District Judge that the money received from Mr Anderson was relevant but that it was submitted on behalf of the Respondent that it was not relevant.  The Respondent in his witness statement (which stood as his evidence in chief) at paragraph 34 stated that the matter of the money from Mr Anderson 
“was expressly before the Court in the several pieces of considered written evidence within the trial bundle and [the Appellant] expressly asked the judge for it.”
(8)	It will be seen that the Appellant’s counterclaim entirely failed.  There was I understand a court appointed expert who had prepared a report regarding the condition of the building.  
(9)	The Appellant attempted to appeal against the learned District Judge’s decision of 8 December 2003 but was unsuccessful in such attempt. 
9.	There were further proceedings in Court between the Appellant and the Respondent in 2004 and 2005.  I asked whether either party submitted that the substance of this litigation was in any way relevant to the matters which I have to decide.  Neither of them made any such submission.
The Appellant’s submissions
10.	The relevant matters advanced to me in argument by the Appellant were as follows:
(1)	The substance of the dispute before District Judge Langley in 2003 was the question of disrepair to the building rather than any question of whether the Appellant enjoyed some claim over the Anderson Money or the £800.  
(2)	Having regard to New Brunswick Railway Company v BFTC [1939] AC 1 the Appellant can only be estopped from raising in second proceedings what can necessarily and with complete precision be identified as having been determined in the first proceedings.  
(3)	There is in the present case an absence of any reasoned judgment from District Judge Langley.  The Respondent has omitted to obtain this and is therefore unable to prove what District Judge Langley decided (if anything) in relation to the Anderson Money and the £800.  The 2003 proceedings therefore do not estop her from raising before the LVT her claim to a credit of a share of the Anderson Money and of £800.
(4)	So far as concerns the claim and counterclaim in 2000, the Appellant’s counterclaim was for loss of occupation by virtue of there being props in her premises.  She was not seeking to claim in respect of the major works (which had already been done) being defective.  The reduction of about £1700 from the Respondent’s claim was therefore to reflect her loss of use of her flat rather than to recompense her for the fact that the major works as supervised by Mr Anderson were defective.  Accordingly she had not received, through the medium of the 2000 proceedings, any recompense for the major works supervised by Mr Anderson being defective and she was therefore not debarred from sharing in the benefit of the Anderson Money, which she was entitled to set off against the claimed service charges and which the LVT should have allowed to be set off.  
(5)	The Appellant pointed out that she merely declined to be part in the legal proceedings against Mr Anderson, but she did not disassociate herself from correspondence seeking to claim money from him.  She should be entitled to share in the benefit of what was recovered from him.  
(6)	As regards the £800 this was paid to the Respondent by Mr Anderson specifically earmarked for her.  It was not open to the Respondent to use it by offsetting it against other money owed by her to him.  As regards the evidence in the correspondence at pages 311 and 65 to 68 of the bundle indicating that an offer to give her a credit of £800 was made but rejected, she argued that she had not rejected the principle of an ex gratia payment but had merely objected to it being too little and also objected to it being used as a deduction from outstanding service charge or being used to cancel a sum of £500 ordered to be paid by the September 2000 judgment (but not yet actually owing because the flat had not been sold).
The Respondent’s arguments
11.	On behalf of the Respondent Mr Redpath-Stevens had prepared a helpful written skeleton argument.  In substance he advance the following points:
(1)	The 2003 particulars of claim, as amended, and the Part 20 counterclaim laid before the District Judge the question of the full extent of the Respondent’s entitlement to service charge for the years 2001, 2002 and 2003 (up to the date of the hearing), including the full extent of whether there was any argument under section 19 of the Landlord and Tenant Act 1985 enabling the Appellant to resist payment of some or all of these sums.  The pleadings also laid before the District Judge the full extent of what if any counterclaim the Appellant had against the Respondent for breach of covenant and want of condition of the Appellant’s flat from the commencement of her occupation.  In other words the purpose of the claim and counterclaim was to enable the entirety of the claims and counterclaims as between the parties to be resolved so that all outstanding matters regarding the flat as at the date of the District Judge’s judgment would be dealt with.
(2)	The Appellant knew of the facts regarding the Anderson Money and the £800 and she expressly referred to these matters before the District Judge and tried to make use of them.  
(3)	If the argument which the Appellant sought to raise before the LVT is correct (namely that the Appellant is entitled to some credit for a proportion of the Anderson Money and for the £800) then that argument would equally well have been good before the District Judge, because Mr Anderson had made his payment to the Respondent in December 2002 and the facts were known by the Appellant well prior to the hearing before the District Judge and indeed were laid before the District Judge. 
(4)	He referred to the principles in Henderson v Henderson (1843) 3 Hare 114, as to which see below.  He argued that either the question of the Appellant’s entitlement to a share of the Anderson Money and to the £800 was before the District Judge or it could and should have been.  The LVT were correct in concluding it was no longer open for the Appellant to raise the matter before it.  
12.	As regards the £800 Mr Redpath-Stevens argued that this was intended as a gesture of goodwill and that bearing in mind that the Respondent did in fact offer the money to the Appellant, who rejected it, the Respondent cannot be expected to do any more.  Mr Redpath-Stevens did however point out that there was no question of unjust enrichment in that the Respondent had made it clear (albeit without any obligation to do so) that he would only seek to recover £2,200 of the costs awarded to him in 2003 (being the £3,000 which was not to be enforced without an assessment of the Appellant’s means) rather than the full £3,000.  Mr Redpath-Stevens argued that to proceed in this manner was in no way circumventing the order that the order for costs should not be enforced until after an assessment of the defendant’s means, because the Respondent was not seeking to enforce the order for costs but was instead merely indicating he would not enforce the order for costs as to £800 of its quantum.
13.	The foregoing was his principal argument.  However, Mr Redpath-Stevens also advanced the following supplemental arguments so far as they were necessary for him to rely upon them.
(1)	He argued that the true analysis of the facts regarding the 2000 consent order reveals that the reduction in the Respondent’s claim was to reflect the Appellant’s complaints regarding the works supervised by Mr Anderson rather than solely to compensate her for loss of occupation of her flat.  He argued that in consequence the Appellant having already been compensated (by the £1,700 odd reduction against her service charge bill in 2000 which claimed a share of the cost of the works supervised by Mr Anderson) she was not entitled to a share of the money eventually paid by way of compensation by Mr Anderson for faulty supervision of the works, because to do so would in effect enable her to recover twice for the same complaint. 
(2)	He argued that even if the foregoing were wrong, the Appellant was in any event not entitled to require the Respondent to give her any credit for a proportion of the Anderson Money, especially bearing in mind she was not prepared to join in any necessary litigation against Mr Anderson.  
(3)	Finally he submitted that even if, contrary to all the foregoing, the Appellant was entitled to some credit for a share of the Anderson Money, this would have been a credit against the service charge year in which the charges were raised against the Appellant for remedial works to put right the faulty works, which on the evidence from the Respondent was either 2001 or 2002.  This was not for a period which the Appellant sought to lay before the LVT in her application.
Conclusions
14.	I have in mind the principles set forth in Halsbury’s Law of England 4th Edition (Reissue) Volume 16(2) at paragraph 964:
“The parties involved in litigation have a duty to put before the Court all the issues relevant to that litigation”
This principle is stated in Taylor v Lawrence [2003] QB 528 at p 535 (a five member Court of Appeal including the Lord Chief Justice and the Master of the Rolls).  Reference is there made to Henderson v Henderson.  The well known principles in this authority are conveniently set forth in Hoystead v Commissioner of Taxation [1926] AC 155 at p 170 (a Privy Council decision).  Also Halsbury at para 978 states:
“In all cases where the cause of action is really the same and has been determined on the merits .... the plea of res judicata should succeed.  The doctrine applies to all matters which existed at the time of the giving of the judgment and which the party had an opportunity of bringing before the Court.  If, however, there is matter subsequent which could not be brought before the Court at the time, the party is not estopped from raising it.”
Also at paragraph 984 there is the following passage:
“Except under special circumstances a party may not in a subsequent proceeding raise a ground of claim or defence which was open to him the former one”
I do not find that the case of New Brunswick Railway Company v BFTC referred to by the Appellant casts any doubt on the foregoing principles. That case was concerned with a default judgment.
15.	The purpose of the 2003 proceedings, as advanced by the Respondent in his particulars of claim, was to claim all monies owing by way of service charge for the years 2001, 2002 and 2003.  If the Appellant was entitled as a matter of legal right against the Respondent to be credited with either a proportion of the Anderson Money or with £800, she could and should have raised that in these 2003 proceedings because these points would have gone directly to the amount properly claimable by the Respondent in respect of the service charges for the years 2001, 2002 and 2003.  Also I note that she knew of the facts regarding the Anderson Money and the £800 and also I find (as indeed is confirmed by the Court letter referred at paragraph 8(6) above) that the question of the monies received from Mr Anderson was expressly raised before District Judge Langley.  
16.	It may also be noted that the Counterclaim advanced by the Appellant in the 2003 proceedings (which was wholly dismissed by the District Judge) was in wide terms and not only claimed damages against the Respondent for breach of covenant for matters arising from the commencement of her lease but also expressly raised the question of whether the charges which the Respondent sought to recover were reasonably incurred or whether the charges related to work of a reasonable standard (the matters available to her under section 19 of the 1985 Act).
17.	I am conscious of the fact that I do not have the advantage of any transcript or agreed note of the judgment of District Judge Langley, nor do I even have an unagreed note.  However having regard to the letter from the Court (see paragraph 8(6) above) and the Appellant’s acceptance that she did raise the question of the monies received from Mr Anderson before District Judge Langley, I conclude the only possible analyses are:
(1)	that the question of whether the Appellant was entitled to credit in respect of the Anderson Money and the £800 was raised before District Judge Langley and rejected, in which case the Appellant cannot raise it again on the basis of res judicata; or
(2)	that the Appellant failed fully to raise or pursue any claim for such a credit (ie in reduction of the Respondent’s claims) before District Judge Langley.  In which case the Appellant is caught by the principle in Henderson v Henderson.  The point was available to her on the known material and it is now too late for her to raise an argument which, in effect, amounts to arguing that although District Judge Langley ordered her to pay £3,813.67 (which included arrears of service charge for the years 2001, 2002 and 2003) the District Judge should in fact only have ordered payment of a lesser sum because she was entitled to a credit against her share of the cost of the remedial works which were charged to her in one or other of these years; or
(3)	that the Appellant did raise the argument based on the Anderson Money and the £800 but that the District Judge failed adequately to deal with this argument in her judgment.  If this is the case then such error would have fallen to be corrected on appeal.  Permission to appeal was sought but refused.  The LVT and the Lands Tribunal cannot be approached as a second avenue to seek to raise any such appeal.  
18.	As regards the £800 there is also a further reason why the Appellant cannot now seek to claim credit for this £800, namely that the Respondent sought the £800 from Mr Anderson (and was paid this money by Mr Anderson) on the basis that he had offered the Appellant £800 “as a gesture of goodwill”.  The Respondent was not to be taken as recognising that the Appellant had any legal right to this £800.  The Respondent did in fact offer to give the Appellant credit in the sum of £800 as is shown in the letter at page 311 but this was rejected by Appellant in her letter of 15 November 2002 at pages 65-68.  The Appellant said she did not reject the offer, but I accept Mr Redpath-Stevens’ argument that by asking for more she was in effect making a counter offer.  I also accept the Respondent’s evidence that he made a further offer of an £800 ex gratia credit in a mediation session in August 2003 (see para 29 of his witness statement).  Accordingly I conclude that the most that the Appellant was entitled to expect in relation to the £800 was that the Respondent would offer her a credit in this sum on an ex gratia basis.  He did so but she rejected it.  She is not entitled to raise this matter before the LVT.  I note that in any event the Respondent is allowing the Appellant credit for the full £800 against a sum of costs claimed by him. Bearing in mind my conclusions as stated above it is not necessary for me to consider any argument as to whether there is any technical objection to the Respondent dealing with the sum by setting it off against an order for costs which is not to be enforced without an enquiry as to the Appellant’s means.  
19.	The foregoing is sufficient for determining the present appeal.  I agree with the LVT that it did not have jurisdiction to consider whether the Appellant was entitled to credit, against the service charges raised before the LVT, for either some proportion of the Anderson Money or for £800.  
20.	Although unnecessary therefore to do so I do briefly express my conclusion upon the point raised in relation to the 2000 proceedings.  This would only be of relevance if (contrary to my finding) the Appellant were not estopped by res judicata or issue estoppel arising from the 2003 proceedings from raising the question of her entitlement to a share of the Anderson Money before the LVT.
21.	I heard the Respondent give evidence and I accept his evidence as to how the settlement came about in the 2000 proceedings.  His account rings entirely true as to how he (with his solicitor) and the Appellant appeared before the District Judge and how the District Judge was told of the Appellant’s complaints including her refusal to pay for the major works which had been supervised by Mr Anderson and how the District Judge effectively enabled a settlement by revealing to the parties the prospect of a two day case which might cost the loser £10,000.  It is clear (and I find) that the Appellant was already dissatisfied with the works which had been done under the supervision of Mr Anderson, see her letter to Mr Anderson of 1 August 2000 at page 57 of the bundle.  I therefore accept the Respondent’s recollection (which I prefer to the Appellant’s) that the reduction in the Respondent’s claim (which was a reduction of about £1,700 and in fact more than later turned out to be the claimed share of the Anderson Money) was intended to cover not only her claim for loss of her habitation but also to cover her complaints regarding these works supervised by Mr Anderson.  I conclude that she was not entitled therefore to require the Respondent to give her credit for a share of the Anderson Money as this would in effect involve double recovery.  I am strengthened in my conclusion that this is the correct analysis bearing in mind that the claim advanced to Mr Anderson, upon the basis of which he paid, was a claim which it was expressly stated would be advanced by the Respondent and the other two tenants (not including the Appellant).  
22.	In the result I dismiss the Appellant’s appeal.
23.	Each party has made an application for costs against the other. The power of the Lands Tribunal to award costs in an appeal from an LVT is, of course, restricted by section 175(6) and (7) and schedule 12 paragraph 10 of the Commonhold and Leasehold Reform Act 2002. Costs can only be awarded against a party if that party has, in the opinion of the Tribunal, acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably in connection with the appeal.
24.	As regards the Appellant’s application for costs against the Respondent, she has failed in her appeal and there is no basis for an award of costs against the Respondent, who in any event has not acted in any of the manners described in section 175 as set out above.
25.	As regards the Respondent’s application for costs against the Appellant this is set out in the letter dated 15 September 2006 from the Respondent’s solicitors, which I have considered. I have concluded that it would not be right to award any costs against the Appellant for the following reasons:
(1)	The question of whether the Appellant was estopped by virtue of the 2003 proceedings from seeking the credits she sought before the LVT was a point which was properly arguable and which she had been granted permission to argue by the Lands Tribunal. It was also a point which, bearing in mind the absence of any transcript or agreed note of the judgment of District Judge Langley, it was not frivolous, vexatious, abusive disruptive or otherwise unreasonable for her to argue.
(2)	The Appellant also lost on the alternative basis as recorded in paragraph 21 above. However this point turned substantially upon the quality of the recollections of the parties as to the basis of a settlement in 2000 which was undocumented save for the Court’s formal order. I do not consider that the Appellant acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably in contesting the point.
(3)	I do not consider the Appellant’s conduct regarding the attempt to prepare a joint agreed statement for the Lands Tribunal to have been abusive (as alleged by the Respondent) or otherwise such as to justify an award of costs. Also I reject the Respondent’s request that I should view the Appellant’s conduct at the hearing as disruptive.

26.	Accordingly I make no order for costs.   

Dated   17 October 2006

His Honour Judge Huskinson