“It is the spirit and not the form of law that keeps justice alive” Earl Warren
When I was young I was an avid Doctor Who fan, but the best moments were always when “the Doctor” transformed from the old to the new, and whilst the storylines continued in a fairly similar manner (what did I know at 6 years old!?), the new Doctor’s appearance gave a fresh and vibrant feel.
On the 1st July 2013 the Leasehold Valuation Tribunal (LVT) will become The Property Chamber under Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 order 2013 SI 2013/1034 and under Section 30 it allows the functions of the LVT to be transferred to the First or Upper Tier Tribunal and for the old tribunals to be abolished.
As of the 1st July 2013 there will be many rule changes in procedure (which many people will say have been needed for many years). The rules are set out in Section 22 & Schedule 5 of the 2007 Act. The new rules can be found on the legislation.gov.uk website.
Whilst the new rules are clear I am sure it will take months (if not years) for the procedure to become second nature and there will be many mistakes made by both professionals and the members of the First Tier.
The Property Chamber will be split into 3 divisions, Residential Property (formerly RPTS and the subject of this commentary) Land Registration, Agricultural & Drainage.
The present regional arrangements will continue to apply for Residential Property and the current teams will stay in post but become Regional/Deputy Regional Judges & Deputy Regional Valuers.
Here are the highlights:
Case Management Powers
Rule 6 deals with case management powers and in time the powers are wide enough to allow the Property Chamber to “flex its muscles”, which they could not before. Rule 6(3) describes a number of case management powers and taken as a whole, these new powers should allow the Tribunal to adapt to the extremes of their case load.
Failure to comply with rules and Tribunal directions
Failure to comply has long been a “sore point” for professionals in the LVT and that appears to now becoming to a close in that Rule 8 states the Tribunal “may take such action as the Tribunal considers just” to deal with the default, which may include the following:
*Waiving the requirement;
*Requiring the failure to be remedied;
*Exercising a power to strike out under Rule 9;
*Referring the matter to the Upper Tribunal under Section 25 of the 2007 Act;
*Barring or restricting a party’s involvement in proceedings;
*Making an award of costs under rule 13
Striking out a party’s case
Rule 9 applies to both Applicants and Respondents. Whilst this is more akin to the Courts it is unlikely (at least at first) that this power will be used to its fullest extent but it is possible (even on a restricted basis) on the following grounds:
*Failure to comply with directions;
*Failure to co-operate with the Tribunal
*Issues that have already been agreed between the parties;
*The proceedings, the manner in which they are being conducted, are considered frivolous, vexatious or otherwise an abuse of process of the Tribunal (this is the same as before but the £500 limit has been removed);
*There is no reasonable prospect of the case, or part of it, succeeding.
Rule 13 is going to sweep the board in respect of costs and will no doubt change the face of proceedings in that both Applicants and Respondents may think twice before launching an attack on the other and thus reduce cases being heard before the First Tier Tribunals.
The rule replaces paragraph 10 of Schedule 12 to The Commonhold & Leasehold Reform Act 2002 and in effect there is now no cap on costs which can be reclaimed. This rule will be an interesting addition to the Tribunal’s powers.
Correcting, setting aside, reviewing and appealing Tribunal decisions
There are a number of rules which have been “harmonised” in rule 50+ but the most important for the Property Chamber is now that from 1st July 2013 all appeals from the First-Tier Tribunal will go to the Upper Tier (Lands Chamber), including rent cases.
There are of course a number of transitional provisions all which appear to be sensible and can be found in Schedule 3.
The Surveyors View
What is clear is that the new case management powers and powers relating to costs are likely to have the most effect on the Tribunal procedures and indeed will strengthen, in a much needed way, the ability of the Tribunals to direct proceedings and penalise those who for years have “played the system” and wasted much time and money, on both the Applicants & Respondents side.
It will interesting to follow if the new rules will be effective and applied in a sensible manner, but on the face of it, these new rules will provide a good platform in years to come for a more sound and robust Tribunal system.
I am hoping, that just like my Doctor Who days, the new Property Chamber will create, procedurally, a fresh and vibrant feel which was wanting for many years.
Ivan Taylor BSc FRICS
NB – please note that this briefing note is not intended to be anything other than commentary and is not to be used or modified. In every situation third party legal advice must be obtained.