The new 'Property Chamber' by Paul Letman

28 June 2013

Just in case you missed it, on 01 July 2013 the new Property Chamber comes into being (see The Transfer of Tribunal Functions Order 2013 SI2013/1036) and its new rules of procedure come into force (see the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 SI 2013/1169(L8)).

The old Rent Assessment Committee, Rent Tribunals, Leasehold Valuation Tribunals, Agricultural Tribunals and Adjudicator to HM Land Registry will be abolished, and instead there will be a new ‘First-tier Tribunal (Property Chamber)’.

Within this Property Chamber there will be 3 departments; ‘Residential Property’ covering the old RPTS jurisdictions, ‘Agricultural Land and Drainage’ covering ALT matters, and ‘Land Registration’ covering matters previously within the jurisdiction of the Adjudicator to HM Land Registry.

As to the new procedural rules these will apply to ALL cases whether started before or after 01 July 2013 that have not been determined before that date; save that the new rules on costs will not apply to cases started before 01 July 2013 and the Tribunal may give any directions it thinks appropriate, applying or dis-applying any provisions of the new rules, to ensure that proceedings started before the 01 July are dealt with fairly.

The new rules are very different, and reflect the fundamental restructuring of the system, as tribunals are brought within the judicial Court system. Amongst the most remarkable changes are the following:

  • Under Rule 3, the now familiar CPR style ‘overriding objective’ will apply ‘to enable the Tribunal to deal with cases fairly and justly.’
  • Under Rule 4, the Tribunal is obliged to seek, where appropriate, to bring to the attention of the parties the availability of ADR and if the parties wish it to facilitate the use of such procedures.
  • Under Rule 6, the Tribunal has plenipotentiary case management powers including the power to regulate its own procedure and to suspend the effect of its own decision pending amy application for permission to appeal or appeal or review.
  • Under Rule 8 the Tribunal can impose sanctions for failure to comply with any rule, practice direction or direction, including barring or restricting a party’s participation in the proceedings or referring any failure to the Upper Tribunal for it to exercise its powers under s.25 of the Tribunals, Courts and Enforcement Act 2007, which it seems to me may even include committal for contempt.
  • Under Rule 9, the Tribunal can now make Unless Orders in terms whereby non-compliance with the order will automatically strike out the whole or any part of any proceedings as directed.
  • Also Under Rule 9, the Tribunal may now strike out the whole or any part of proceedings if, for example, a party has failed to comply with a direction or to cooperate with the Tribunal, or if a claim or response is frivolous or vexatious or otherwise an abuse of process or if the Tribunal considers the same or any part of it has no reasonable prospect of success. The rules effectively thereby replicating Court powers under CPR Rules 3 and 24 to strike out or enter summary judgment. Although it should be noted that the Tribunal also has the power to reinstate a case that has been struck out.
  • Under Rule 19, provision is made for directions in relation to expert evidence. These are in many respects perfectly standard but there is now greater emphasis in the rules upon the possibility of using single joint experts, and perhaps most strikingly the rule now provides that a copy of the written report of any expert must be provided at least 7 days before the date of the hearing or the date notified for the matter to be determined without a hearing. Coupled with the powers under Rule 9 to restrict participation, this should make a real difference to the way in which parties conduct themselves before the Tribunal, compared with previous practice.
  • Under Rule 22, in all cases the Tribunal must consent to the withdrawal of the case before the withdrawal becomes effective. It will no longer be possible for the parties simply to notify the tribunal of the withdrawal of an application. Again though the Tribunal has a power to reinstate (a withdrawn claim).
  • Under Rules 23 and 24, new provision is made for the Tribunal to direct that one or more cases giving rise to common or related issues should be decided as the lead case, the decision in which will then be binding on the parties in each of the related cases. Reference should be made in this regard to the helpful comments and orders made by Akenhead J in Millharbour Management Ltd v Weston Homes Ltd [2011] EWHC 661 (TCC) (in which I am instructed).
  • Finally, under Rules 51 to 54 (regarding correcting, setting aside, reviewing and appealing Tribunal decisions) the Tribunal is given rather startling powers, not just to correct clerical mistakes and accidental slips, but on any application to appeal their decision the power to review that decision, and if they think a point raised in the application is correct, subject to giving the parties a further opportunity to make representations, to pre-empt the appeal by substantively altering their original decision.

Thus the new rules open the way for much tighter control on tribunal proceedings, with the potential for debarring orders, strike outs and summary judgment, exclusion of late expert evidence, unlimited wasted costs orders and more. It is to be expected that the Tribunal will be slow to assert its new powers, and will continue to be relatively generous particularly where litigants in person are concerned, but there can be no doubt that these reforms herald a sea change in the conduct of property proceedings. Needless, to say if you need any help navigating this new regime, 3 Hare Court will be happy to assist.