Attended in person:
Mr Justice Edwin Johnson, Chamber President (CP)
Martin Rodger KC, Deputy Chamber President (DP)
Elizabeth Cooke, Upper Tribunal Judge
Mark Higgin FRICS, Upper Tribunal Member
Peter McCrea FRICS, Upper Tribunal Member
Diane Martin MRICS, Upper Tribunal Member
Donald Scannell, Registrar
Richard Honey KC, Planning and Environment Bar Association
Mark Loveday, Tribunals Procedure Committee
Attended by video link:
Richard Asher, Compulsory Purchase Association
Daniel Bazuaye, HMRC Solicitors Office
Rebecca Collins, Central Association of Agricultural Valuers
Colin Cottage, Compulsory Purchase Association
Sena Frimpong, Property Bar Association
Gary Garland, President, Valuation Tribunal for England
Andrew Hetherton, Institute of Revenues Rating and Valuation
Eloise Illingworth, Property Bar Association
Tim Johnson, Rating Surveyors Association
Michael Pearce, Valuation Office Agency
- Apologies were received from:
Siobhan McGrath, Chamber President, First-tier Tribunal, Property Chamber
Emma Ranaweera, Upper Tribunals Operations Manager
Justin Bates, Housing Law Practitioners Association
Toby Boncey, Property Bar Association
Rob Bridgman, Gowling LLP
Moira Hepworth, Institute of Revenues Rating and Valuation
Mike Holland, Agricultural Law Association
Caroline Shea KC, Agricultural Law Association
2. Minutes of the meeting on 6 October 2022 were approved.
3. Matters arising – none were raised.
4. Current volume of work and waiting times
4.1 Volume of work
The DP provided a short report on current workload, comparing receipts in different categories in the immediately preceding 6 months and in the last two complete years.
New cases received
|Y/e 30.03.22||Y/e 30.03.23||6 months to 30.09.23|
|All new business||604||737||450|
|References||215 (171 ECC, 44 compensation)||267 (222 ECC, 45 compensation)||188 (146 ECC, 42 compensation)|
|Applications for PTA from FTT||136||124||81|
|Appeals from FTT||74||65||39|
|Appeals from VTE||28||23||16|
|Discharge/modification of covenants applications||32||42||15|
He explained that in terms of new cases received 2022-23 had been the busiest experienced by the Lands Chamber since its creation in 2010, with receipts registered, 737, more than 20% up on the previous year. However, almost a third of these cases were references under the Electronic Communications Code, which are now transferred to the first-tier Tribunal for determination. They placed a significant burden on administrative staff but much less on Judges. If new Code cases are stripped out, the picture was broadly in line with 2022, when worked returned to pre-pandemic levels (although new rating appeals continued to be at record low levels). The rate of receipts appeared to have picked up in the most recent six-month period.
The net effect of the level of work arriving was that users are not experiencing significant delays in cases being heard, and the Tribunal is able to hear cases quickly if required.
4.2 Waiting times
The DP provided a further table showing that fewer than a dozen cases commenced more than 18 months ago are still open in the Tribunal, and most of those involved preliminary issues which had been determined and were now the subject of appeals. The time taken to get to a hearing was 9 to12 months for appeals and 12 to 18 months for references, applications to discharge or modify restrictive covenants and other first instance business.
Cases remaining open
|Commenced in y/e 30.03.22||Commenced in y/e 30.03.23||Commenced in 6 months to 30.09.23|
|All new business||8 (of 604)||68 (737)||154 (450)|
|References||7 (215) (2 (171) ECC)||35 (267) (4 ECC (222))||49 (11 ECC (146))|
|Applications for PTA from FTT||0 (136)||0 (124)||15 (81)|
|Appeals from the FTT||0 (74)||13 (65)||32 (39)|
|Appeals from the VTE||0 (28)||0 (23)||11 (16)|
|Discharge/modification of covenants applications||1 (32)||16 (42)||14 (15)|
5. CE-Filing “mandation”
The DP drew users’ attention to a new Practice Direction published by the Senior President of Tribunals, making the use of the Tribunal’s electronic case management system for new cases with effect from 4 October 2023 Practice Direction for the Lands Chamber of the Upper Tribunal: Electronic filing – CE-File – Courts and Tribunals Judiciary
The uptake of electronic filing had been very good amongst professional with almost all references and about half of appeal being filed online. Unrepresented parties were encouraged to use the platform and many were happy to do so, but its use by them was not mandatory. Guidance was available online and the Tribunal’s staff were also able to provide advice on CE-File. The DP expressed his thanks to users for their cooperation in helping to make the Tribunal’s business much easier to manage.
6. Draft revisions to 2020 Practice Directions
Judge Cooke explained that the Tribunal’s Practice Directions were last reviewed in October 2020 after consultation with users. A review has recently been undertaken and some limited changes are proposed.
The main proposals are:
• A new section 3, dealing with communicating with the Tribunal. The use of CE-File by professional users is now mandatory throughout the Upper Tribunal and this is reflected in this additional section.
• A slimmed down treatment of the procedure for judicially reviewing a refusal of permission to appeal from the FTT, at para 11.21.
• Section 15, dealing with references under the Electronic Communications Code has been substantially reduced and now states the current practice of transferring these cases to the First-tier Tribunal.
• Para 19.15 has been modified to remind expert witnesses that, in addition to the declaration which the Tribunal requires to be included in all expert reports, they may also be required by their own professional body to include a separate statement of compliance.
• Para 20.3 deals with the form of hearing bundles and in a discussion of usual practice for professionally represented parties uses confirmed that an electronic bundle was almost always produced and could be provided to the Tribunal without additional expense. The judiciary present said that a hybrid involving a full electronic bundle and a paper core bundle was often the mosthelpful approach, but that litigants in person may continue to prefer a paper bundle. The importance of consistent numbering between paper and electronic bundles was emphasised.
7. “Double-hatting” appeals from the First-tier Tribunal
The DP explained that, where a case had been heard at a single hearing by a judge sitting both as a county court judge and as a member of a First-tier Tribunal panel, the case management of appeals presented particular difficulties. If the Tribunal was made aware that parallel appeals were proceeding both in the Tribunal and in the Court against different aspects of the same decision, it would do what it could to liaise with the relevant court to reduce unnecessary activity. He explained that in the longer run a formal practice direction might be introduced, but for the time being he encouraged users who were aware of simultaneous court and tribunal appeals in the same case to notify the Tribunal as early as possible.
8. Costs in the Tribunal
The DP explained that a number of cases since the introduction of the Tribunal’s current rules on costs in 2013 suggested that there was uncertainty about their application in some of the Tribunal’s first instance jurisdictions. He invited views on the formation of a small working group of users and Tribunal representatives to consider whether changes to rule 10 of the Tribunal’s Rules were desirable.
Mark Loveday (Tribunal Procedure Committee) referred to the procedure for changing tribunal rules and explained that, in general, costs shifting does not apply in tribunals.
Richard Honey KC (Planning and Environmental Bar Association) agreed that there were areas of uncertainty which could usefully be addressed and volunteered to participate. Rebecca Collins (CAAV) also expressed interest. The DP asked that if others were interested in participating in a working group they should please contact him.
9. Building Safety Act 2022
The DP said that the Building Safety Act 2022 was an important new jurisdiction and might produce a significant number of high value cases. The Tribunal’s role would mainly be to hear appeals from decisions of the First-tier Tribunal and it was not envisaged that many cases would be transferred to the Tribunal for first instance determination. The power to transfer might be exercised by the FTT in a few suitable cases but that would not be the norm.
10. Pro bono representation
The DP expressed the Tribunal’s thanks to those who provide expert representation on a voluntary basis.
Where the Tribunal was aware that a pro bono representative was acting in a case it would do its best to keep them informed but would not expect them to conduct the pre-hearing stages on behalf of their client. The Tribunal’s draft Practice Directions encouraged pro bono representatives, where possible, to notify the Tribunal of their involvement at an early stage (at para. 3.6).
11.1 On behalf of the Compulsory Purchase Association Colin Cottage referred to the CPA’s Pre-Reference Protocol in compensation cases, which encourages engagement and cooperation between parties to exchange information and narrow issues before the commencement of formal proceedings. He invited the Tribunal to consider adopting the Protocol as its own, perhaps by incorporating it in the revised Practice Directions. This might encourage further use of the Protocol.
Richard Honey KC said that in his experience the CPA Protocol was not complied with in about half of the compensation cases he was involved in. Typically, non-compliance was by acquiring authorities and took the form of not responding to letters of claim, or refusing to engage in the detail of a claim before a reference was commenced.
In response the DP said that the Tribunal regarded the Protocol as important and the current Practice Directions drew attention to it and advised that any unreasonable refusal to follow it could be take into account when the Tribunal determined issues of costs. He recognised that, as most cases settle, that would often not be seen as a threat with much teeth, and said that the Tribunal would consider what could be done to further encourage adherence to the Protocol. He also suggested that a party which was facing resistance to the use of the Protocol would be entitled to seek the Tribunal’s assistance by commencing a reference with abbreviated details of the claim (a copy of the letter of claim would suffice) and asking the Tribunal to give directions for compliance with the Protocol during an initial stay, before further formal steps were required to be taken.
9.1 Colin Cottage also raised the subject of pre-reference costs and explained that these were often the final matter to be settled in a reference and were increasingly becoming a significant issue. He suggested that parties would benefit from some simple and economical route to a determination of pre-reference costs.
Other contributors agreed that there was a problem. Richard Asher (CPA) said that in his experience it was increasingly difficult to reach agreement with acquiring authorities on the basis of a claimant’s fees at the start of negotiations (as the RICS recommended) and these were left over to become a later source of dispute. Rebecca Collins of the Central Association of Agricultural Valuers agreed that difficulties over fees for negotiating compensation claims were becoming a serious issue which had been highlighted by CAAV members in its annual fees survey. The prospect that, at the end of a lengthy negotiation, a claimant’s representative would be expected to reduce their fees significantly to secure a final settlement for their client was causing experienced practitioners to decline to accept instructions in compensation cases.
The Tribunal representatives present said that they had not previously been aware of this problem. They did not think that the First-tier Tribunal would be able to provide assistance, but if a rapid, low cost resolution was required the parties could appoint their own arbitrator or expert with that brief or could ask the RICS or another dispute resolution service to assist, but any of these would require the parties to agree. The Tribunal itself could only assist in determining the amount of a claimant’s pre-reference costs once a reference had been commenced (which would not require agreement). If those costs were the only issue the Tribunal could determine them economically on the basis of parties’ written representations. If they were not the only issue but were thought to be a major obstacle to a settlement being reached, a request could be made for pre-reference costs to be determined at an early stage as a preliminary issue, again on the basis of written representations. The DP said that the Tribunal had considerable procedural flexibility which, in an appropriate case, it would be willing to make use of to find solutions to problems like this one.
12. Next meeting
To be held in October 2024.