JUDGE MICHAEL RICH QC His father was a solicitor and, at the tender age of seven,
HH Michael Rich declared his intention to go to the Bar. He is grateful both to his father and the Middle Temple (of which he is the Autumn Reader this year) that he was able to realise that ambition.
His practice from the first was largely concerned with valuation and the use of land, including eventually many major public development Inquiries.
He was appointed a Circuit Judge to sit in civil matters only in 1991. He sat in four different High Court jurisdictions and was appointed a part-time member of the Lands Tribunal in 1993.
Perhaps best known for his part in the decision in the Arbib v Earl Cadogan case which rocked the leasehold valuation market, Michael Rich would himself prefer to be recognised merely for the ambition to get the job of making decisions done properly and expeditiously.
You have been appealed just four times from The Lands Tribunal but been upheld. Please comment.
I do not recognise that figure. I have been appealed many times in my various jurisdictions and by no means always been upheld. I don’t feel terribly excited about appeals either way, the reason being that cases can take on a different complexion at appeal. I believe that the mirror of success is not the number of times you have been appealed because one’s job as a judge in the first instance is to do one’s best and to avoid misconduct. Having said that, I can boast that I have had four cases that have gone to the House of Lords and in each case I have been upheld.
How would you explain your decision in the Arbib v Earl Cadogan case, which has caused a great stir in leasehold valuations
I shouldn’t comment on my own decision and, anyway, there are forthcoming cases on this topic. However, there are two fundamental and significant concepts that arise out of this case that people must understand. First, merely treating a figure – I refer to the 6% deferment rate used in prime central London to calculate leasehold values – that has been arrived at by historic convention and by frequent successive legal decisions as one set in stone, is a failure to address the evidence properly. Secondly, a crucial previous case Gallagher and Walker had been misunderstood. It was interpreted by surveyors and the like to mean that financial market evidence is not admissible when determining an accurate leasehold market value. This is not correct: if there is no other suitable evidence financial markets can and must be taken into account. The point we have made in our decision is that the evidence of value is a matter of what is available and not what has been previously decided. To set the deferment rate at 6% is a failure to treat the evidence in this case as it should be. Cases are decided on their facts.
Is leasehold reform providing a better alternative to the leasehold system?
I’m not saying that the system for leaseholders is by any means perfect. Indeed, a number of changes have been introduced that have some fairness. The aim of Government policy, such as enfranchisement, right to manage and Commonhold, is to rescue leaseholders from what are perceived as the historic shackles of the leasehold system.
However, I do believe that some legislative changes in this area need to be made with more caution. For example, I think that there is potential danger in the concept of a cost-free legal regime, such as the LVT. It is thought that the impecunious tenant will always be protected from the landlord with a bottomless purse by being able to invoke justice without any cost. The risk is one of imbalance in the decision-making process.
The proper remedy for the vulnerability of poor litigants is legal aid, which, unfortunately, the government has been systematically eroding, and not protection from costs. But it also depends on how legal aid is administered. After all, it is not always right to assume that it is the downtrodden tenant who needs protecting from the rapacious landlord. This is not the solution to every dispute: it depends on the case. I also believe that there should be more tenants capable of getting together in jointly run cases.
What do you think about the initiatives of LEASE to introduce a mediation service for leaseholders?
Of course, it’s a good idea if litigation can be avoided. But let’s not forget that if one party is right and one wrong, then to compel them to abandon their position or to mediate in order to avoid expense is grotesquely unjust. I regard it as a fundamental part of civilised society that there should be a system of fair adjudication between conflicting parties at least to an extent that is in proportion to the amount that is at stake.
Do you feel that the Lands Tribunal has too many jurisdictions? Is there jurisdiction that it should be given that it does not have?
On the whole the Lands Tribunal is a fairly consistent receptacle for deciding cases involving property or land. Cases decided by The LVT today of course originally fell under the jurisdiction of the Lands Tribunal. I would hazard a guess that the decision to take them away from the Lands Tribunal was both administrative and financial and I don’t dissent from that. LVT panels make a good fist of providing correct solutions to what are often not well presented cases. There are one or two esoteric jurisdictions, such as rights of light that could perhaps be better handled in other courts. It would be more sensible to appeal cases involving party wall disputes to the Lands Tribunal rather than to the County Courts, as is the present modus operandi.
Tell us about your non-professional interests
To a certain extent, I regret not having enough interests outside of work. Apart from the theatre and walking, my other recreations involve taking part in various committees. In that role I was proud to have been asked to be President of the Dulwich Society. I have lived in Dulwich all my married life. When the management scheme for The Dulwich Estates was proposed I undertook the job of presenting the Dulwich Society’s view on it. I became Vice-President and subsequently President. I have recently been involved in raising money for a statue of Edward Alleyn to commemorate the 400th anniversary of his purchase of the estate.
How would you like your time at The Lands Tribunal to be remembered?
I hope that people do not consider that I have been too bloody! I would also dearly hope that when people have occasion to refer to my decisions they will be treated with respect as decisions that were taken by someone who has thought carefully about what he was saying. At my humble level in the judiciary I do not expect a memorial for my work, but I do hope that it will be recognised that I have done this work properly.
HH Michael Rich: Education & Career
University of Oxford (Wadham College)
scholarship (1954-1957): PPE (1st) (1957)
Entry Scholarship to the Middle Temple (1958)
Member of Geoffrey Ripon’s Chambers (subsequently taken over by Sir Derek Walker Smith) Took Silk (1980) Circuit Judge (1991)