Upper Tribunal Lands User group meeting minutes – 6 October 2022

Lands Chamber (Upper Tribunal)Minutes

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
Diane Martin MRICS, Upper Tribunal Member
Donald Scannell, Registrar

Attended by video link:

Siobhan McGrath, Chamber President, First-tier Tribunal, Property Chamber
Emma Ranaweera, Upper Tribunals Operations Manager
Richard Asher, Compulsory Purchase Association
Justin Bates, Housing Law Practitioners Association
Daniel Bazuaye, HMRC Solicitors Office
Toby Boncey, Property Bar Association
Rebecca Collins, Central Association of Agricultural Valuers
Sena Frimpong, Property Bar Association
Andrew Hetherton, Institute of Revenues Rating and Valuation
Richard Honey KC, Planning and Environment Bar Association
Tim Johnson, Rating Surveyors Association
Mark Loveday, Tribunals Procedure Committee
Michael Pearce, Valuation Office Agency
Brie Stevens-Hoare KC, Gatehouse Chambers
Jonathan Stott, Compulsory Purchase Association
Paul Tonkin, Property Litigation Association

  1. Apologies were received from

Peter McCrea FRICS, Upper Tribunal Member
Rob Bridgman, Gowling LLP
Colin Cottage, Compulsory Purchase Association
Gary Garland, President, Valuation Tribunal for England
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 30 November 2021 were approved.

3. Matters arising

3.1 Costs in the Tribunal

The DP drew attention to two recent legislative changes concerning costs

3.1.1. Costs in CAAD Appeals

Following the discussion at the last meeting and the helpful paper prepared by members of the Planning and Environmental Bar Association the Tribunals Procedure Committee had completed its consultation on extending the Tribunal’s power to enable it to to award costs in Certificate of Appropriate Alternative Development appeals under s.18, Land Compensation Act 1961.  That power was now available to the Tribunal following amendment by The Tribunal Procedure (Amendment) Rules 2022 with effect from 6 April 2022.

3.2 Pro bono representation in the Tribunal

Section 194A of the Legal Services Act 2007 came into force on 28 June 2022, enabling UK tribunals to award pro bono costs. This mirrored the existing s. 194 of the 2007 Act which provides for pro bono costs in civil courts.  As a result, pro bono costs are available in proceedings before the Upper Tribunal in all cases where the tribunal would have had the power to award costs had the representation been provided on a paid basis. For example, for unreasonable conduct. Unlike ordinary costs, pro bono costs are by statute payable to the prescribed charity, the Access to Justice Foundation.  The Tribunal will be assisted in relevant cases by the pro bono lawyer filing and serving a written statement showing how much they would have charged, based on their normal hourly rate for fee paying work (excluding VAT).

3.3 The New Judiciary website (Home – Courts and Tribunals Judiciary) is now live and users should find it easier to navigate through the Tribunals section to the Lands Chamber pages. The cause list for each week will be available there, as well as links to the Tribunal’s Rules and Practice Directions, previous decisions, minutes of these meetings and other news.

4. Current volume of work and waiting times

4.1 Volume of work 

The DP provided a short report on current workload.  The Tribunal remained busy in most jurisdictions, including some large compensation claims arising from HS2 and significant local regeneration schemes.  The volume of telecommunications work had increased significantly but most cases are now being transferred to the First-tier Tribunal, Property Chamber (FTT) unless they raise new points of principle, and the quantity of this work was not interfering with the Tribunal’s ability to deal with other cases.  Appeals from the FTT continued to be dominated by rent repayment cases, but the number of these was expected to reduce as the principles became better understood.  A modest recovery was being experienced in appeals from the Valuation Tribunals in rating cases, which had declined almost to nothing during the pandemic but were now recovering (although so far only to about a third of previous high levels).

4.2 During the year to 31 March 2022 603 new cases had been filed (an increase from 530 the previous year) and 753 had been disposed of (2021, 609).  At the end of the year there were 289 cases awaiting determination (2021, 459).

4.3 During the half year from 1 April to 30 September 2022 329 new cases had been filed and 313 had been disposed of, leaving 304 cases awaiting determination.

4.4 A more detailed breakdown of receipts during the two periods (excluding applications dealt with administratively) is as follows:

 Year to to 30.09.22
Applications for permission to appeal from the FTT13660
Appeals from the FTT7423
Appeals from the VTE2816
Discharge/modification of covenants applications3218
References215 (including 171 Electronic Communications Code)112 (including 99 ECC)

4.2 Waiting times

There had been no change from the waiting times reported last year.  Thus, most applications for permission to appeal are determined on paper within 12 weeks of registration; most appeals from the Property Chamber are listed within 9 to 12 months; most references, applications under s.84 and appeals from Valuation Tribunals are listed for hearing within 12 – 18 months.  Those references under the Electronic Communications Code which are suitable for determination by the FTT are transferred to it within days of registration; those which remain in the Tribunal are listed for hearing within 5 to 9 months. 

5. CE-Filing “mandation”

The DP reported that the CE-Filing had now been in use by the Tribunal for two years and had been available to users for 18 months.  Although the new platform made case management by the Judges and Members of the Tribunal much more efficient, take up by users had so far remained patchy.  In the Tribunal’s more commercial jurisdictions adoption by professional users was high (almost 100% of new telecommunications references are filed using CE-File and it is also used by most respondents).  In other areas take up was much lower and the Tribunal’s staff were required to upload material which arrived by e-mail or in hard copy.  The Tribunal wanted to encourage adoption of CE-File as the preferred method of commencing proceedings and filing material for all who had the capacity to use it.

The Tribunals Procedure Committee was engaged in a public consultation on changes to rules across the Chambers of the Upper Tribunal to require use of CE-Filing by professional users.  The Tribunal was in favour of this proposal on the understanding that unrepresented parties would not be required to make use of the platform and could continue to commence new proceedings and file documents in person, by post or by email.  Subject to TPC approval it was expected that changes to the Tribunal’s rules would be introduced during 2023.

For the time being the Tribunal would continue to encourage voluntary take up of CE-Filing.  A discussion took place about how use of the platform could be promoted. One option was to make an explanatory webinar available.  

6. Receipt of evidence from abroad

The DP explained that greater familiarity with remote hearing technology had encouraged parties in a number of cases before the Tribunal to ask for arrangements to be made for the Tribunal to receive live video evidence from a witness who was abroad. Following the decision of the Upper Tribunal, Immigration and Asylum Chamber in Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 286 (IAC) it is clear that such applications can raise complex issues.  There has long been an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so. Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country’s diplomatic relations with other States and is, thus, contrary to the public interest.  The position of the Secretary of State for Foreign and Commonwealth Affairs is that it is necessary for there to be permission from a foreign State (whether on an individual or general basis) before oral evidence can be taken from that State by a court or tribunal in the United Kingdom. Such permission is not considered necessary in the case of written evidence or the making of oral submissions.  The FCO has established a Taking of Evidence Unit to facilitate obtaining such permission. 

When an application is made for the Tribunal to receive evidence from abroad, the Tribunal will contact the Taking of Evidence Unit to establish whether there is an objection to the taking of oral evidence from that country. If the country in question objects or places conditions on consent that are not achievable (whether due to time constraints or otherwise) the party will not be permitted to rely on oral evidence from abroad.  It is for the party wishing to rely on the evidence to raise the matter with the Tribunal in good time to enable the necessary consent or waiver to be obtained.  Each application will be considered on its merits.  Early application is advisable if this situation is envisaged.

7. Unregulated representatives in the Tribunal

The DP explained that the Tribunal had recently become concerned about the effectiveness of its arrangements for authorising representation in cases before the Tribunal by unregulated representatives (usually students or others who had not yet completed their legal training and who were not regulated by the Bar Standards Board or the Solicitors Regulation Authority.  The Tribunal encourages pro bono representation and recognises that organisations providing representation by unregulated representatives in return for payment could contribute to ensuring wider access to justice.  Such organisations now regularly provided representatives in cases before the Tribunal involving appeals against rent repayment orders and typically would receive a proportion of the sum recovered by their client in the event that the appeal was concluded in their client’s favour.

The Tribunal’s particular concern was that parties were being asked to authorise an organisation rather than a named individual to represent them before the Tribunal.  Neither the individual nor the organisation were covered by relevant professional standards. Sometimes representatives attended to present or respond to an appeal without the person they were representing being present or having provided any confirmation to the Tribunal that they wished to be represented by them.

Justin Bates expressed the concern of the HLPA that unregulated representation should not generally be made more difficult in tribunals, especially in jurisdictions where it was common (for example in social security tribunals).  The DP acknowledged the importance of representation of all sorts but said that the distinctive feature which had caused concern in this Tribunal is that unregulated legal services are being provided in return for a share of the claim which created the potential for conflicts of interest.

The DP said that the Tribunal intended to give further consideration to this subject in conjunction with the FTT, Property Chamber.  For the time being the Tribunal would insist on unregulated representatives being personally authorised in writing to provide representation in proceedings before they would be permitted to conduct proceedings before the Tribunal.   

8. New jurisdictions – Building Safety Act 2022 and Part 7, Environment Act 2021

8.1 Judge Cooke alerted users to the commencement in June 2022 of important parts of the Building Safety Act 2022 including in relation to liability for cladding remediation.  All such cases will commence in the FTT Property Chamber and will come to the Tribunal on appeal.  Where an important point of principle, or a high value was involved the provisions of the FTT’s rules allowing transfer to the Upper Tribunal could be engaged. Judge McGrath confirmed that in the last four weeks the FTT had received seven references regarding remediation contribution orders.

8.2 Judge Cooke also spoke about the new scheme of conservation covenants which have been introduced by Part 7 of the Environment Act 2021.  The Tribunal had been given jurisdiction to modify or discharge these covenants analogous to its jurisdiction under section 84, LPA 1925 in relation to restrictive covenants.  It was not expected that there would be many of these applications any time soon but changes would be made to the Tribunal’s rules to accommodate them.

9.    AOB

9.1 The DP mentioned that the Tribunal expected to begin conducting remote hearings using the new HMCTS Virtual Hearing Service (“VHS”) early in 2023. 

9.2 The President and the DP encouraged users to feel free to contact them with any matters of concern at any time, and to him propose matters for discussion at the next meeting.             

10. Next meeting

To be held in October 2023.