Jonathan Pennington Legh represented the successful applicant, resisting set aside and permission to appeal in residential property proceedings. The respondent sought to challenge the decision on the grounds that he lacked capacity.
Background
These proceedings concerned the transfer of a property in East London, made by the Applicant’s late brother. The property was vested in the name of the deceased’s son, the Second Respondent. The First Respondent was his sister
Jonathan’s client applied to alter the register to unwind the transfer. In November 2023, the Property Tribunal agreed with his case and ordered the Register to be amended accordingly. In so doing it found the Second Respondent lacked credibility.
Set-aside application
Following the November 2023 decision, both Respondents sought to set aside the ruling. The First Respondent’s application was refused in January 2024.
This was the hearing of the Second Respondent’s application, on the basis that he lacked capacity to participate in the earlier proceedings – an allegation not raised until after the decision.
He sought both set aside (under Rule 51(d) – there has to have been a procedural irregularity and it must be in the interests of justice to set aside) and permission to appeal.
On his client’s behalf, Jonathan successfully resisted the Second Respondent’s application, the Tribunal agreeing with him that:
- There was no incapacity at the material time. This meant a successful challenge to the medical report obtained by the Second Respondent after the original decision. In any event, even if this was wrong:
- There was no procedural irregularity under Rule 51 because no-one raised the issue before the original hearing, and there was nothing to tip off the Tribunal as to potential incapacity (relying on Tager v Commissioners for HMRC [2015] UKUT 663 (TCC)). And:
- It was not in the interests of justice to set aside the decision, even if the judge was wrong on (i) and (ii) above.
Conclusion
The Tribunal refused both the application to set aside and the second respondent’s request for permission to appeal. The effect is that the November 2023 decision, in favour of the applicant, remains in force and the property remains in his sole name.