Solicitors email at 7.41pm the evening before tribunal: Did you get our letter threatening you with libel proceedings?

UPDATE: September 6 2014. Nothing further was heard of this blatant example of legal bullying.

Troubling questions emerge from last week’s First-Trier Tribunal hearing into the application by leaseholders at West India Quay to form a recognised residents’ association.

Were the freeholder and his professional advisors playing the system against what they assumed – wrongly – would be a group of unassisted lay applicants?

Why did the leaseholders only receive the case bundle at 11.42am on Tuesday March 25: two days before the hearing?

The leaseholders were informed by the freeholder’s solicitors that “unfortunately, our systems were down for most of yesterday”.

The tribunal gave the freeholder a series of delays, including for witness statements. These should have been ready one week before the hearing. That deadline was also missed, with the documents arriving at 16:54 on Friday March 21.

Late submission of documents by freeholders’ professional advisors is a repeated complaint from leaseholders at the property tribunal. The Leasehold Knowledge Partnership has raised the issue with Judge Siobhan McGrath, who heads the service.

Why is it that “systems go down” with the result that lay applicants receive the case bundle late? The excuse of “systems going down” has been infrequent since the 1980s.

Had the leaseholders at West India Quay gone to the expense of also engaging a QC, would the bundle have been late, and what would have been the consequences of that?

It is interesting that Judge Tim Powell, who heads the London region of the property tribunal, decided to sit on this case. The tribunal was informed of the unacceptable delays involved.

It was also informed of the late-hour libel threat against Ms Jane Hewland, who is secretary of the residents’ association.

This occurred two days before the hearing in the form of a couriered letter from City law firm King & Wood Mallesons SJ Berwin. It is representing the freeholder and head lease owners at the site: West India Quay Development Company (Eastern) Limited and No 1 West India Quay (Residential) Limited. It is understood that both of these companies are part of the Yianis group.

It reads: “You accuse our client of, at worst, a criminal offence, and, at best, inappropriate professional behaviour for a landlord of a large residential real estate.”

It would appear the complaints concern remarks made verbally, and it is not clear when.

The solicitors’ letter was couriered on Tuesday evening and at 7.41pm of the evening before the hearing Mr Nick Brocklesby, a partner in the litigation department of King & Wood Mallesons SJ Berwin, emailed Ms Hewland to ensure that she had received the letter.

“We look forward to receiving a response to this letter as a matter of urgency,” said the email.

Mr Boyd immediately forwarded the correspondence to Ms Hewlands’ MP, Jim Fitzpatrick, who is closely following events at West India Quay.

On the morning of the hearing, Mr Boyd wrote to Mr Brocklesby: “It is an unfortunate coincidence your email was sent so late (19:41) night before the hearing but is something which perhaps rather too often in these types of cases.”

Mr Brocklesby replied in an email that was copied to Sebastian O’Kelly, of LKP:

“The letter that we wrote to Ms Hewland relates to confidential matters as between our clients and Ms Hewland.  Those matters are unrelated to Ms Hewland’s hearing, and we do not see why she has found it necessary to seek your involvement, or why you have found it necessary to copy Ms Hewland’s MP.  There is no reason for you and others to be made privy to the substance of a private dispute.  In fact, your being forwarded the letter only exacerbates our clients’ concern that there is an unmerited campaign being instigated against them.

 “Notwithstanding the above, the suggestion that our letter is a distraction, and that its timing is unfortunate, misses the point.  The letter was sent in response to recent events.  Further, we have made clear to Ms Hewland that our clients are keen to avoid this discrete matter becoming an on-going distraction, and that it is open to her to prevent that.  We have respected your request not to send Ms Hewland any further correspondence until the hearing has concluded.  We have extended this courtesy to you also.  We will, however, still expect Ms Hewland to address our clients’ concerns.”

LKP, of course, acknowledges that companies have a right to defend their reputations. We also accept that freeholders can employ whoever they like at the First-Tier Tribunal, even the small army headed by a QC that was deployed here.

But, similarly, leaseholders can involve whoever they like to ensure that the dispute is dealt with openly. If the system is being played against them, then politicians and others are free to comment.

Inevitably, this will involve further public scrutiny of the freeholder.

Furthermore, Sir Peter Bottomley – who is also following the case of West India Quay with interest – has predicted ruined professional reputations among lawyers, surveyors and accountants who play the leasehold system.

The issue of Ms Hewland’s alleged libel will have to run its course.

But at the very least, we would expect the First-Tier Tribunal not to tolerate “systems being down” as an excuse for the case bundle not being ready until two days before a hearing.

That sort of messing around has surely had its day.

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