Rule 53: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169: Tribunal’s consideration of application for permission to appeal

(1) On receiving an application for permission to appeal the Tribunal must first consider, taking into account the overriding objective in rule 3, whether to review the decision in accordance with rule 55 (review of a decision).

(2) If the Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision, or part of it, the Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it.

(3) The Tribunal must send a record of its decision to the parties as soon as practicable.

(4) If the Tribunal refuses permission to appeal it must send with the record of its decision—

(a) a statement of its reasons for such refusal; and

(b) notification of the right to make an application to the Upper Tribunal for permission to appeal and the time within which, and the method by which, such application must be made.

(5) The Tribunal may give permission to appeal on limited grounds, but must comply with paragraph (4) in relation to any grounds on which it has refused permission.

And so the new two-pronged après-decision procedure is revealed…

Apart from an application to set aside a decision on procedural grounds under rule 51, the only application which can be made to the Tribunal after a decision has been issued is for permission to appeal.

It is for the Tribunal, on receipt of an application for permission to appeal, to consider first whether it should review the decision it has made. The overriding objective is stated to be the Tribunal’s guide as to whether it should exercise that discretion.

It seems to me that the strength and nature of the grounds of appeal are likely to feed into consideration of the overriding objective. For example, if the grounds of appeal highlight an obvious error of settled law, that error can in all likelihood be corrected by a review rather than the grant of permission to appeal, thereby saving time and cost.

The Tribunal will only move on to consider the application for permission to appeal if either:

• It decides not to review a decision, or,
• It decides to review the decision, but its decision on that review does not dispose of all aspects of the application for permission to appeal.

If the Tribunal decides that the application for permission to appeal should not be granted, it must give a reasoned decision, and must notify the parties of any right of appeal, the time frame for appealing and, perhaps most importantly, how an appeal may be brought. In this respect, the information to be given to the parties reflects the information which must be given under rule 36 when the original decision is given.

The requirement to give reasons in this rule and in rule 36 codifies the common law position, which was examined in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605. Lord Phillips of Worth Matravers, the then Master of the Rolls, gave the judgment of the court:

“15 There is a general recognition in the common law jurisdictions that it is desirable for judges to give reasons for their decisions, although it is not universally accepted that this is a mandatory requirement—“There is no invariable rule established by New Zealand case law that courts must give reasons for their decisions”, per Elias CJ in Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546, 565. While a constant refrain is that reasons must be given in order to render practicable the exercise of rights of appeal, a number of other justifications have been advanced for the requirement to give reasons. These include the requirement that justice must not only be done but be seen to be done. Reasons are required if decisions are to be acceptable to the parties and to members of the public. Henry LJ in Flannery’s case [2000] 1 WLR 377 observed that the requirement to give reasons concentrates the mind of the judge and it has even been contended that the requirement to give reasons serves a vital function in constraining the judiciary’s exercise of power: see Professor Shapiro’s article “In Defence of Judicial Candor” (1987) 100 Harv L Rev 731 , 737. The function that judgments play under the common law in setting precedents for the future has also been identified as one of the justifications for the requirement to give reasons, although as Mahoney JA stated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 , 273:

“The court’s order is a public act. The judgment given for it is a professional document, directed to the parties and their professional advisers. It may, in a particular instance, delineate, develop or even decorate the law but that is peripheral and not essential to its nature.”

“16 We would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost.”