Tribunal Procedure Committee Consultation on the proposed new (First-tier Tribunal) (Property Chamber) Rules 2013

 

Questionnaire

We would welcome responses to the following questions set out in the consultation paper. Please return the completed questionnaire by Thursday 6 September 2012 to:

The Secretary, Tribunal Procedure Committee, Post point 4.37, 102 Petty France, London, SW1H 9AJ

Email: tpcsecretariat@justice.gsi.gov.uk

Fax: 020 3334 2233

The PBA and PLA comprise 370 barristers and 1,100 solicitors, respectively, specializing in property litigation. Members’ areas of expertise cover the full gamut of commercial, residential and agricultural property law. This is a joint response by the two organizations.

General

Both associations welcome the consolidated rules and are largely in agreement with the Consultation Draft.

R. 2(2)(b)

The requirement for informality and flexibility is commendable. However, to expressly encourage the same in the overriding objectives may be seen a good reason for lax application of the Rules, which is to be wholly discouraged. The inclusion of r. 2(2)(b) would do more harm than good.

The rule should provide that when a party gives notice to other parties, the notice should include a timeframe (fixed by the rules) within which any objection must be made, in accordance with r. 6(5), so as to lend certainty to the procedure.

R. 7(2)

Insertion:

“(f) exercising its power under r. 16(3)(b) (excluding evidence upon which a party may rely).”

R. 8

The inclusion of striking out provisions is welcomed. However, consideration needs to be given, particularly in respect of automatic striking out (r. 8(1)), to the situation where the striking out for one party’s default may be detrimental to the innocent party.

For example, an application under s. 24 of the Leasehold Reform, Housing and Urban Development Act 1993 may be made by either the nominee purchaser or the reversioner. If a reversioner’s application is struck out, the nominee purchaser will be prejudiced by having to incur the expense of commencing fresh proceedings or, which is more likely, by being out of time to make an application.

It would also be wholly inappropriate for the innocent party to be put to the expense of applying for relief from a sanction imposed upon the defaulting party.

R. 11

As r. 11(8) provides for the application of the CPR costs rules, there is no requirement for express provision in respect of the costs of the detailed assessment of costs, as this is dealt with under rr. 47.18 & 47.19. For the avoidance of doubt, express reference may be made to these provisions in the Rules.

The same applies to costs on account, which are dealt with under r. 44.3(8) of the CPR. Again, for the avoidance of doubt, express reference may be made.

As the courts’ power to award interest on costs is derived from the Senior Courts Act 1981 and the County Courts Act 1984, not the CPR, express provision should be made within r. 11 to award interest on costs.

It may be preferable that all detailed assessments be transferred to the County Court or the SCCO, where there is a greater pool of expertise in such matters.

R. 12

There appears to be no safeguard against unsuitable lay representation. Express provision for the tribunal to exclude inappropriate lay representatives would be prudent.

R.21(5)

Insertion:

(5) Within 28 days after the date on which the Tribunal sent a copy of the decision to a party under paragraph (4)(a), that party may apply in writing:

  • to have its case substituted as the lead case; or
  • for a direction that the decision is not binding on the parties to a particular related case.

The foregoing will ensure that a party who considers that his case has good grounds for being the lead case will receive fair consideration.

The use of “Notice of Application” or “Application Notice” to describe the form by which a party commences proceedings is likely to cause confusion. Applications are generally made within existing or proposed proceedings. R.8 refers to the striking out of “proceedings or case” not an application. “Claim Form” is used to describe the document in civil proceedings. The instigator of proceedings in the Tribunal is making a claim in some respect or another. It would, therefore, seem appropriate to use a Claim Form in tribunal proceedings. If there is concern about confusion between a court Claim Form and a tribunal one, “Notice of Claim” could be used.

R. 25

Also: r. 11(5), r. 28; r. 31(6); r. 41(3)(a); r. 49(3), & r. 50.

It is acknowledged lack of uniformity in source statutory wording gives rise to inconsistencies in the calculations of time. However, consistency within the Rules assists clarity. Examples of inconsistency are:

R. 11(5) “…may not be made later than 14 days after the date on which the Tribunal…”

R. 25(2) “…within 28 days after the date on which notice…was sent…” R. 25(3) “…within 28 days of the written notice”.
R. 25(4)(b) “…the notice of application must be made within two months of the service of the [tenant’s] counter-notice.

R. 28(1) “…within 28 days after the date on which the respondent was provided by the Tribunal with a copy of the notice of application…”

R. 31(6) “…within 14 days of service on that party” of the Tribunal’s decision.

In r. 41(3) “…the Tribunal has given…not less than 14 days (sic) notice…” R. 49(3)(3) “…no later than 28 days after the date on which the Tribunal sent notice of the decision…” R. 50(1) adopts similar wording.

Where there is no conflict with existing statutory wording, the calculation of time by reference to the date on which the document was “sent” is considered clearest, with time commencing to run “the day after”. However, clarification of how that date is to be identified (presumably by the date of the covering letter) should be included in r. 13.

R. 13 should also clarify that reference to “the day after” the document was sent and “within x days” means inclusive days.

Example:

An application to set aside a decision must be made within 28 days of the date after which the Tribunal sent the order to the applicant.

That the order might be dated 27/07/12 is irrelevant. The letter under cover of which the order is sent is dated 01/08/12. The 28 days begin to run on 02/08/12, which is included in the 28 days. The application must be received by the Tribunal by 5.00 pm (r. 13(1)) on 29/08/12, which is also included in the 28 days.

R. 30(2)

Insertion:

“The party referred to in paragraph (1) must provide to the Tribunal and all other parties-”

R. 31 (2) – (5)

Provision should be made for the notification of the parties by the Tribunal on the occurrence of any of the events listed.

The rule does not state on what basis the Tribunal may grant permission to appeal. Presumably, it is if the appeal has a real prospect of success under the relevant statutory appeal provisions.