Upper Tribunal, Lands Chamber Users’ Group Minutes – 18 March 2021
Lands Chamber (Upper Tribunal)
1. Welcome and introductions
1.1 The CP welcomed all participants to the inaugural meeting of the UT Lands Users’ Group.
2. The purpose of the Users’ Group
2.1 The CP explained that the purpose of the Users’ Group is to improve communication between the Tribunal and its regular users and to provide an opportunity to exchange views and information about how the business of the Tribunal is conducted and can be improved. The Tribunal will use the Group to explain its own procedures and performance, to consult and inform users about changes to them, to answer users’ questions, and to listen to any concerns or suggestions users may have. A cooperative approach is important to make best use of the Tribunal’s resources and to deal with cases efficiently, fairly and without unnecessary expense. It hopes the professional associations represented on the group will encourage their own members to raise any matters of concern or interest to them through the Group.
3. Current volume of work and expectations concerning listing (waiting times, venues, return to face to face hearings)
3.1 Volumes of work – The DP presented a summary of receipts and disposals of cases in the three years to March 2021. In a typical year 500 to 700 new judicial cases are received (plus up to 200 rights of light and absent owner applications which are dealt with administratively). About 200 are appeals or applications for permission to appeal from the FTT Property Chamber, and about 50 to 70 are appeals from the Valuation Tribunal. The largest fluctuations are in the number of references for compensation or under the Electronic Communications Code.
During the pandemic the number of new judicial cases received has fallen by about 30% (to 363 for the 11 months of 2020-21 for which figures are available). The largest falls have been in appeals from other tribunals, with appeals from the VTE down by 80% in the same period, and appeals and applications from the Property Chamber down by 30%. Cases which commence in the Tribunal (references and covenant applications) have held up relatively well.
The total number of outstanding cases is about 450.
3.2 Waiting times –
- Most applications for permission to appeal are determined on paper within 12 weeks of receipt.
- Most appeals from the Property Chamber are listed for hearing within 6 to 8 months.
- Most appeals from the Valuation Tribunals are listed for hearing within 16 months.
- Most references under the Electronic Communications Code are listed for hearing within 6 to 8 months.
- Most references for compensation are listed for hearing within 12 to 16 months.
- Most applications under s.84, Law of Property Act 1925 are listed for hearing within 12 to 18 months.
There is currently no backlog of cases in the Tribunal and the main determinant of waiting times is the time parties require to prepare cases for hearing. Parties are encouraged to agree, or the Tribunal will direct, realistic and achievable procedural timetables, and standard forms of directions are now available on the Tribunal’s website.
3.3 Hearing venues – Most of the Tribunal’s hearings take place at the Royal Courts of Justice (RCJ), where there is currently no pressure on the availability of hearing space, but it regularly sits at courts and Civil Justice Centres around the country. The demand from courts and tribunals for hearing space to deal with work delayed by the pandemic may make it difficult to list the Tribunal’s cases outside London for a period, but the Tribunal will continue to endeavour to list hearings at venues convenient to the parties. Where it is not possible to guarantee a venue out of London when a hearing date is being fixed, the Tribunal will fix the date and specify that the hearing will take place at the parties’ preferred venue, if available, but otherwise at the RCJ in London. Late changes of venue will be avoided and parties will be given proper notice of the final venue (weeks rather than days) to enable travel and accommodation to be arranged.
3.4 Resumption of face to face hearings – For a period in August and September 2020 between the first and second lockdowns the Tribunal had been able to resume face to face hearings at the RCJ and at other venues. HMCTS had implemented social distancing measures and cleaning regimes to ensure the safety of users but the use of face to face hearings had nevertheless been suspended when restrictions were re-imposed. The DP explained that as national restrictions begin to be relaxed the Tribunal hopes to resume face to face hearings for substantive hearings as soon as possible. The Tribunal will continue to conduct case management hearings using remote platforms, as these had proved effective and economical, but for most substantive hearings a remote form of hearing is less satisfactory than face to face.
For the time being the revised Guidance on the conduct of proceedings in the Tribunal during the pandemic issued by the Chamber President on 18 January 2021 remains applicable, but as national restrictions begin to lift face to face hearings will be reintroduced. For as long as some restrictions remain in place, and until the vaccination programme is complete, the Tribunal will invite the views of the parties in individual cases on how the hearing of their cases can best be conducted and will take into account the needs of vulnerable participants and their families when determining the form of hearing (as it did when face to face hearings resumed in August 2020).
4. The 2020 Practice Directions, effectiveness and improvement of current procedures
4.1 The DP thanked all those who had contributed to the consultation on the Tribunals revised Practice Directions published in October 2020. He identified two main objectives of the Practice Directions, which also influence the Tribunal’s approach to case management, as being the reduction in wasteful and unnecessary activity in the preparation of cases for hearing and the encouragement of good communication and cooperation between parties and their professional representatives. An example of the first objective could be found in Part 5 of the Practice Directions, which is concerned with statements of case. Statements of case are often unnecessarily lengthy and elaborate, and some contain inappropriate legal argument and citation of authorities (contrary to PD paras 5.2 and 5.3), or bulky appendices (contrary to PD para 5.5). The influence of both objectives can be seen in Part 6, which deals with disclosure, and is aimed at reducing unnecessary and indiscriminate disclosure by requiring professional representatives to discuss and agree what disclosure is required and how it can most usefully be provided in every case (paras 6.3, 6.4).
4.2 The DP emphasised that parties are encouraged to agree how their case will be prepared and the Tribunal aims to be supportive of sensible proposals. Where a case has been assigned to the special procedure and is being managed by the Judge or Member who will conduct the final hearing, they are also available to give additional directions or modify existing directions without delay. The Tribunal will intervene when it is made aware that a procedural timetable is not being adhered to, but its approach is not sanctions-led and its objective is to ensure that all cases are determined fairly. In response to a question about abuse or non-compliance with directions, the DP contrasted the Tribunal’s approach to compliance with the approach taken in the courts. The Tribunal’s Procedure Rules give it all the powers it requires to control abuse, and it will not hesitate to use them when appropriate. But in a jurisdiction where many parties are unrepresented, or are seeking compensation for property which has been compulsorily acquired, the Tribunal prefers to use close supervision rather than sanctions to ensure timely and proper compliance with its directions.
5. CE-File – the introduction of electronic filing and case management to the Tribunal –
5.1 Judge Cooke introduced CE-File, the electronic case management system now in use in the Tribunal. She explained that it has been in use by the Tribunal staff and judiciary for all cases filed since November 2020, and is working well. CE-File also permits e-filing and has been used for this purpose in some Court jurisdictions for several years. From 7 June 2021 (the current provisional date, which may change) the system will be available to litigants and their representatives for the commencement of all proceedings in the Tribunal, the filing of pleadings, evidence and procedural applications and for the Tribunal to send out procedural decisions and communicate with the parties. It is proposed that use will become compulsory for professional representatives in due course, but not before the end of 2021.
5.2 A draft practice note had been circulated with the agenda https://www.judiciary.uk/wp-content/uploads/2020/01/Practice-Directions-UTLands-Chamber-1-1.pdf and comments and suggestions for improvement were invited from professional associations and users.
5.3 Mr Loveday asked about the filing of skeleton arguments by counsel who may not be registered on CE-File; the Tribunal’s usual email address will remain available for this purpose.
5.4 Judge Cooke also explained that CE-File was not designed as a platform for the filing of large hearing bundles, and that (where these were required) a separate Document Upload Centre was being made available for that purpose.
6. The Tribunal’s expectations of expert witnesses and section 18 of the October 2020 Practice Directions
6.1 Surveyor Member Peter McCrea FRICS gave a brief presentation highlighting the expectations of the Tribunal of expert witnesses, explaining how the new Practice Directions codify the guidance which the Tribunal has given in recent decisions and case management orders.
6.2 PMc stressed the need for early engagement with the process, co-operation and communication between the parties and between their respective experts, their obligations to the Tribunal, and the requirement for a valuation expert to explain in their report how their valuation would change if the Tribunal makes findings in relation to disputed facts different from those which the valuation expert has assumed or prefers the evidence of the other party’s expert on, for example, planning or building costs issues.
6.3 There was a discussion about the form of directions the Tribunal now gives in telecommunications references to limit reliance by valuation experts on very large numbers of comparable transactions having little direct relevance to the subject valuation. The Tribunal has not encountered the same problem in other types of valuation and does not consider that similar directions are generally required.
7. Costs in the Tribunal – including summary assessment and Leech Homes Ltd v Northumberland County Council  EWCA Civ 198 (19 February 2021)
7.1 The DP drew attention to the Court of Appeal’s recent decision in Leech Homes, in which it had determined that the Tribunal does not have power to award costs against an unsuccessful appellant against a Certificate of Appropriate Alternative Development. He invited professional associations with an interest in compulsory purchase to reflect on the decision and on whether the Tribunal Procedure Committee should be invited to consider whether a change to rule 10(6) was appropriate.
7.2 The DP also explained that for cases lasting one day or less the Tribunal would always consider undertaking a summary assessment of costs after it had issued its decision. Parties are not required to prepare or file statements of costs before a hearing.
8. Pro bono representation in the Tribunal
8.1 The DP invited professional associations to consider how pro bono representation could be made more readily available for appropriate cases in the Tribunal. The benefits of professional representation were obvious in any case, but especially where a case had the potential to set a precedent which affected other parties. The Tribunal was always very grateful to counsel or solicitors who acted without payment, but could not take direct steps of its own to arrange representation.
8.2 The CP emphasised the value of pro bono representation and said that Advocate and the Chancery Bar Association’s CLIPS scheme were examples of successful schemes which could benefit litigants in person in the Tribunal. Richard Honey QC said that PEBA was designing a scheme to make pro bono representation available in the Planning Court and would consider whether this could be extended to relevant cases in the Tribunal.
9. Minutes of the meeting of the Telecommunications Users sub-group meeting – 2 February 2021
9.1 The minutes of the first meeting of the Tribunal’s Telecommunications Users sub-group were tabled for information. The DP explained that a sub-group had been convened for this new jurisdiction because of the volume of cases which it had generated and the novel procedural issues which they gave rise to. When activity in this sector became less intense it was likely that the sub-group would be folded into the main Users’ Group.
9.2 The DP also stated that if participants in the Users’ Group felt that a meeting to discuss specific issues of concern to a particular sector would be beneficial this could be arranged.
10.1 The CP asked the Group to note the imminent retirement from the Tribunal of Andrew Trott FRICS, who had served as a Member, first of the Lands Tribunal and then of the Upper Tribunal, since 2006. He had made an immense contribution to the Tribunal and would be greatly missed by his colleagues and those who had appeared before him.
10.2 The DP said that he and the CP welcomed feedback on the work of the Tribunal at any time and participants in the Users’ Group should feel free to propose matters for discussion at the next meeting and to raise concerns or suggestions from their members between meetings.
11. Next meeting
Thursday 30 September at 4.15
11.1 The meeting will include a discussion of the preparation of materials for use in final hearings, including statements of agreed facts and issues and the content and organisation of hearing bundles and core bundles.