In our last edition we set out some of the new rules which apply to the First Tier Property Tribunal (FTT), following its introduction in place of the LVT. We set out some warnings about the FTT’s ability to strike out a case if a party does not comply with directions. However, we also explained that the new rules provide Registered Providers with powers that can be used to their advantage.
By way of an example, we have recently represented a Registered Provider in which the FTT, at a Case Management Conference, expressly directed that all evidence was to be provided by way of witness statements. The leaseholders, having prepared a very detailed Statement of Case, believed that no witness statements were needed, despite the Statement of Case containing mainly legal arguments rather than evidential points, and not having a statement of truth. At the hearing of the case the FTT applied a strict interpretation of the directions, which we would perhaps expect more from a court than an FTT, and prevented the leaseholder giving oral evidence. The new overriding objective is that all parties be treated fairly. The tribunal accepted our argument that to allow the leaseholder to give evidence, which our client had not seen in advance and would be in breach of the directions, would be prejudicial to our client.
In another FTT case the leasehold applicants completed their application forms and provided very limited detail of their challenge. However, this time the FTT decided to give directions without setting up a Case Management Conference (CMC). In doing so the FTT made assumptions about what the case was about: the pay-ability and reasonableness of service charges. Having been involved in considerable pre-action discussions with the applicants, both our client and ourselves knew full well that the challenge was about whether our client had complied with s20 Consultation, not the reasonableness of charges. The FTT also made no direction allowing evidence to be given by witness statement, or by any alternative method.
Following the directions the Applicants then prepared a Statement of Case, which included considerable additional issues, many of which fell well outside of the scope of the case, as limited by the FTT’s directions, and some even fell outside of the tribunal’s jurisdiction (e.g. Party Wall Act disputes). The Statement of Case still did not raise any challenge of the reasonableness of charges however.
Many landlord’s will be familiar with appearing at FTT hearings not knowing quite what case they have to answer. In this case there was a huge difference between what the leaseholders and the FTT thought the case was. The leaseholders did not intend to give witness statements in advance, as no such statements were directed. Our client’s ability to face the case was therefore severely prejudiced. As such, we made an application to the FTT for a CMC to be listed, to revisit the scope of the case and for new directions to be given. The leaseholders objected to that application, but in doing so confirmed that they intended to challenge the reasonableness of charges for undefined past years, despite this not being set out in the Statement of Case and despite not giving details of which charges they would actually challenge or for what reason. Again, we relied on the prejudice this was causing our client, and the overriding objective. In response the FTT agreed to a CMC, at which the case was greatly limited in its scope and many of the issues the leaseholders wished to raise were struck out. Witness Statements were directed, so that our client would know exactly what case it was required to answer. This shows the need to narrow down the issues as much as possible in dealing with disputes in the FTT and to use FTT rules to assist you in doing this.
For more information, please contact Alex Wyatt.
