Upper Tribunal rejects challenge to case management directions in complex building safety dispute

The Upper Tribunal (Lands Chamber) has dismissed an appeal in Canary Riverside Estate Management Limited & Ors v Leaseholders Represented by The Residents' Association of Canary Riverside [2025] UKUT 246 (LC), reinforcing established principles about raising new arguments on appeal and the limits of appellate intervention in case management decisions.

Background and procedural context

The case involves a long-running dispute concerning a management order under section 24 of the Landlord and Tenant Act 1987, originally made in 2016 and extended in 2021, which appointed a manager for residential buildings at Canary Riverside. The Building Safety Act 2022's commencement on 28 April 2022 added significant complexity, particularly regarding remediation of defective cladding estimated to cost over £20 million.

Following the Upper Tribunal's earlier decision in Unsdorfer v Octagon Overseas Ltd [2024] UKUT 59 (LC) that tribunal-appointed managers cannot be accountable persons under the 2022 Act, questions arose about the manager's continuing role in building safety matters. The manager sought directions from the First-tier Tribunal (FTT), whilst the appellants made a separate application for variation of the management order.

The disputed case management decision

At a case management hearing on 25 November 2024, all parties agreed that both applications were "inextricably linked" and required substantial hearing time with evidence exchange. The appellants' own counsel suggested that if there was a dispute, the FTT should give directions rather than determine the applications immediately.

The FTT directed that both applications be heard together at a final hearing in October 2025, alongside other pending applications dating from 2021. The FTT's reasoning included:

• Any variation decision would require consideration of section 24(9A) factors and the risk of recurrence, necessitating evidence likely to be the same as required for the final hearing
• The risk of prosecution was remote given regulatory guidance and available defences
• The applications could not be decided on submissions alone

The appeal and new arguments

Despite their counsel's approach at the hearing, the appellants appealed on grounds settled by different leading counsel. Significantly, three of the four grounds had not been argued before the FTT. The primary ground claimed the FTT's order "subverted" the scheme of the 2022 Act, arguing that building safety functions belonged exclusively to accountable persons.

Deputy Chamber President Martin Rodger KC noted the "striking" difference between the appellants' position at the hearing and their appeal grounds, observing it was "surprising" the FTT granted permission on unargued grounds.

The Upper Tribunal's analysis

The Upper Tribunal applied established principles from Singh v Dass [2019] EWCA Civ 360 regarding new points on appeal. Appellate courts are cautious about permitting new arguments, particularly where they would necessitate different evidence or trial conduct, or where the other party lacks adequate opportunity to respond.

Deputy Chamber President Rodger KC declined to address the substantive statutory interpretation arguments, reasoning that:

• This was an appeal against case management, not the appellants' substantive position at the hearing
• The FTT was entitled to proceed on established legal analysis
• Addressing new points would be unfair to leaseholders and would "hijack and pre-empt" the final hearing
• The appeal tribunal cannot sit as a tribunal of appeal from its own earlier judgement

Implications for practice

The decision reinforces that parties cannot present fundamentally different arguments on appeal from those made at first instance without meeting strict criteria. The judgement emphasises the importance of consistency in legal submissions and the appellate courts' reluctance to determine issues prematurely.

The case also illustrates the complex interaction between the Landlord and Tenant Act 1987 and Building Safety Act 2022, with resolution of these substantive issues properly reserved for full hearing with appropriate evidence and argument from all parties.

The final hearing in October 2025 will address the fundamental questions about tribunal-appointed managers' roles in building safety remediation that this procedural appeal left unresolved.