1. Minutes of meeting on 2 February 2021
1.1 No amendments were proposed.
2. Matters arising
2.1 The Deputy President reiterated, in case of any misunderstanding, that in Code cases which commenced in the UT and were transferred to the FTT appeals from the FTT will be heard by the UT.
3. Update on case numbers
- The total number of Code references received since March 2018 has been 325 of which 72 remain undetermined
- 115 new Code references had been received since 1 Jan 2021
- Of 73 cases received since 1 June, 34 remain open in the Tribunal, 17 more having been transferred to the FTT
3.1 Excluding CMHs 6 Code cases are listed to be heard before Christmas, with between 4 and 7 per month thereafter until July. Most are listed for 2 or 3 day hearings. Very few concern new sites.
3.2 The Deputy President asked for comments on the way Code cases are listed at present, each having a fixed date without over-listing in anticipation of settlements. An alternative approach would be to list more intensively, with several cases in a short window of a week, with a small risk of some hearings being postponed if settlements did not release sufficient capacity for all to take place.
3.3 It was agreed that a fixed hearing date focuses minds and creates proper engagement between parties, and it was a concern that parties might incur costs before any postponement. It was suggested that directions are what really get the parties engaged and it was suggested that a pre-trial review date could be listed initially.
3.4 The DP said that there was no pressure from the Tribunal for more intensive listing at this time, but if volumes increased significantly the approach of listing a number of cases in a short window may be adopted. He thought it very unlikely that cases would be postponed once they had been listed and the Tribunal would do whatever was necessary to ensure that did not happen.
4. Users’ expectations of future case numbers
4.1 The number of future cases will be heavily influenced by the outcome of the Supreme Court hearing in February, but it is anticipated that a large number of paragraph 33 cases will come forward as notice periods run out in the early part of next year.
4.2 DCMS reform proposals had been expected imminently, but it had become apparent at the RICS Telecoms Forum on 3 and 4 November that there may now be a delay.
4.3 The Deputy President invited members to alert him if they anticipated a significant increase in case numbers for any reason, either by circulating the group or directly to him.
5. Use of CE-Filing – some practical tips
5.1 Sue Brady talked the group through some aspects of using CE-file to register a case and upload documents which would make it easier for Tribunal staff to manage cases and documents. An aide-memoire is attached.
6. Code cases in the First-tier Tribunal
6.1 Judge Jackson said that 17 Code cases had been transferred from the UT to the FTT since mid-July, of which five have been withdrawn, three have produced consent orders and two more may do so soon. 11 of the 17 concerned MSVs. One MSV hearing had taken place, for which the decision is imminent, as had several case management hearings. Requests for Tomlin orders are discouraged.
6.2 Judge Jackson reassured the group that the FTT is well used to handling complex property issues with voluminous bundles and detailed valuation evidence. For the time being Code cases are being managed by Regional Judges who will determine them with salaried surveyors.
6.3 On practicalities, the document upload centre can be difficult to use, although the submissions for Code cases seem to be modest by comparison with other types of case. If CE-file becomes available to the FTT it should work well. Judge Jackson reported that the fee scale for Code cases has not yet been set by HMCTS. He requested that when new case are submitted the claimant should always provide email contact details for the respondent if these are available.
6.4 The Deputy President confirmed that cases involving new points of principle will be retained by the Upper Tribunal, but eventually most new Code cases will be heard by the FTT. Claimants are welcome to provide reasons why they consider a case should be transferred or retained when filing a new reference, but there is no requirement to do so. Respondents will not be aware that a case has been transferred until the reference and transfer order are served on them. If either party considers there to be a point of principle, they can then notify Judge Jackson and, if he agrees, the case can be transferred back to the Upper Tribunal. In an ideal world the parties would discuss the appropriate destination before the reference was made.
7. Preparation and over-preparation for hearings
7.1 The Deputy President invited participants to take a proportionate approach to preparing cases for hearing. The Tribunal does not generally require a hearing bundle, skeletons or authorities for a CMH, but there may be cases where these are helpful. The Tribunal already has the filed documents in readily accessible electronic form, so most of a hearing bundle will simply duplicate material already on the Judge’s screen. If the parties think that a CMH will require more than an hour they should give advance warning, and the Tribunal will try to make sufficient time available and avoid adjournment.
7.2 Skeleton arguments for substantive hearings need not be lengthy and the Tribunal can be assumed to be familiar with the well-known authorities.
7.3 The Tribunal’s aim is for MSV cases to be dealt with in one sitting and subsequent directions are not generally required. In response to a question about the need for expert evidence in MSV cases the DP said that the Tribunal is not bound by strict rules of evidence and will happily take account of the evidence of, for example, a building manager about structural issues without the need for an expert to be instructed. The St Martins case did not concern a typical building and was unusual in the reliance on expert evidence.
7.4 There was discussion about managing CMH and MSV cases more economically by grouping hearings involving the same operator. The Tribunal was happy to accommodate this suggestion particularly where a number of references are commenced at the same time. It would be helpful if a specific request was made when references are filed.
8. Expert evidence and restriction on the use of comparables in code cases
8.1 A question was asked, following the Tribunal’s new standard direction limiting the number of comparables presented by an expert to 10, about how an expert could demonstrate a tone of the list. The Deputy President suggested that, as Code valuations are in the no-network world, a tone of the list of network comparables may be of little help. It remains open for an expert make a reasoned application to use more than 10 comparables but nobody has done so to date.
8.2 The same restriction does not apply to County Court cases where there is a market valuation under the 1954 Act.
Urgent applications and judicial resources
8.3 Reference was made to a case in the summer when directions were given very promptly in a case of some urgency despite both judges being on leave. Ad hoc arrangements can always be made to deal with cases of real urgency (which are very rare).
9.1 No other matters were raised.
10. Next meeting
10.1 12 May 2022 at 4.15. Face to face if possible (with hybrid option if practicable).
USING CE-FILE: PRACTICAL TIPS
The filing information page must not be used to submit associated filings with new cases. All the documents transfer across as one case event making it difficult for Tribunal staff to check the filing.
Associated filings should be submitted using the Filing Summary screen. This will give you the option to select a filing type and subtype for each document (for example, Filing – claimant’s statement of case, correspondence – letter from party or Filing – other document). The documents will then transfer as separate case events.
Only one copy of each document is required and multiple copies should not be submitted.
There is an option to add the other parties and the address of the property or land by clicking on the add case party link. This will speed up the processing time at the Tribunal because staff will not have to enter the information manually on the case management system.