A conclusion to the case of the landlord's inconclusively conclusive service charge certificate?

On 28 May 2020, I wrote about the case of Sara & Hossein Asset Holdings Ltd v Blacks Outdoor Retail Ltd .  The High Court had held that S&H's service charge certificate was conclusive as to the amount of the service charge only but was not conclusive as to whether those costs actually fell within the scope of the service charge payable by the tenant under the lease.  The High Court had refused to grant summary judgement to the landlord for unpaid service charge.  

The Court of Appeal has now overturned the decision of the High Court and held that the tenant could not challenge whether sums were properly due under the service charge.   The Court of Appeal held that the landlord's service certificate was conclusive in respect of (i) the amount of the total cost and (ii) the sum payable by the tenant.   The Court of Appeal pointed out that the latter which was the proportion payable by the tenant was, if not agreed, subject to binding expert determination under the lease.  The Court of Appeal pointed out that the former i.e. the total cost is made up of (1) the identification of the services and expenses properly falling due under the lease and (2) the total costs incurred in respect of those services and expenses.  The Court of Appeal held that elements (1) and (2) cannot be separated and that the landlord's service charge certificate was conclusive in respect of both elements (1) and (2) going to make up the total cost.  The Court of Appeal rhetorically asked: "How, it may be asked, can it be binding as to that amount if it is not also binding as to all elements going into "the total cost"?".  The landlord was entitled to summary judgement.

I understand that Blacks is seeking permission to appeal to the Supreme Court so the conclusion to the matter of the conclusiveness or otherwise of S&H's service charge certificate may not yet have come.  In the meantime, the implications of the decision will depend on the precise wording of the service charge certification in your lease but certainly, tenants should not assume that a distinction can be made between conclusive certification of an amount and the items taken into account for that amount.