Iris Hyslop v 38/41 CHG Residents’ Co Ltd [2017] UKUT 0398 (LC)

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The FTT has been in existence for more than four years, but to my mind there has been no case that scrutinises the procedure rules as this one does.

That scrutiny was required in order to establish whether the FTT is entitled to delegate to an applicant its responsibility to send to each respondent,

(a) The application, and

(b) Its subsequent decision.

Those questions arose because in this case the FTT directed that the applicant landlord provide a copy of both application and decision to Ms Hyslop. Ms Hyslop’s case was that she had not received either.

Long-standing readers of Law and Lease will remember that gargantuan undertaking that was the “Rule-a-Day” series that I posted in the run-up to the creation of the FTT and the coming into force of the FTT Procedure Rules.

In this case, Martin Rodger QC cites nine of the rules in his review of the relevant law, and then repeats phrases from them in his analysis of the issues.

The joy of an online resource such as this blog however is that there is no need for that repetition: you can simply click on the link to view the rule in full in a new tab.

Procedural rules

The nine rules from the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169 cited by Martin Rodger QC were:

Rule 3(1) – the overriding objective.

Rule 1(3) – definitions, including:

  • An “applicant” is a person who commences Tribunal proceedings, including by making an application.
  • A “respondent” is a person against whom an applicant brings proceedings. There is no specific action to be taken by a person, or any need for that person to contact the FTT, in order to confirm their status as a respondent: they simply need to be named as a respondent on the application form by the applicant.
  • A “party” is a person who is an applicant or respondent (or, if the proceedings have been concluded, who was at the time when the FTT finally disposed of all issues in the proceedings).

Rule 6 – the FTT’s broad case management powers.

Rule 8 – the powers that the FTT may deploy if there is a failure to comply with the Rules, or a practice direction or other FTT direction.

Rule 16 – a key rule in this case, relating to the “provision of documents”.

Rule 26 – how to start proceedings. Once the application notice is sent or delivered to the FTT, accompanied by all of the relevant documents, the application is validly commenced.

Rule 29 – how respondents, interested persons and others are to be notified of the proceedings.

Rule 36 – giving and notifying parties of decisions.

Rule 51 – the circumstances in which the FTT may set aside a decision which disposes of proceedings.

Rule 52 – applications for permission to appeal

Rule 56 – the FTT is entitled to have regard to the substance, as opposed to the description applied, to challenges to its decisions.

The application

The landlord owned two neighbouring buildings in Craven Hill Gardens, London. Together, the buildings contained 36 flats.

It applied for a determination of the reasonableness of the costs it had incurred in 2015, and the significant expenditure it proposed to incur through major works in 2016. The aim was to obtain a decision binding on all of the lessees.

The direction to serve the application

The application was duly issued, and the FTT directed that the landlord, CHG, “must … serve a copy of the application and the accompanying directions on each of the leasehold respondents and shall confirm to the tribunal that it has done so.”

A month or so later, CHG, through one of its directors, Mr Gream, confirmed to the FTT that it had complied with that direction.

The decision

No one responded to the application, and the FTT determined it on the papers. I have the impression that, unsurprisingly, it allowed CHG to recover all of the charges that were the subject of the application.

The direction to serve the decision

The FTT sent its decision to CHG and asked that it provide a copy to each of the lessees.

The decision was accompanied by information and guidance about how to appeal, but the FTT did not ask CHG to forward that information.

The first application for permission to appeal

In this case, the landlord used the FTT’s determination as a prelude to forfeiture.

It was only when she received the claim for possession of her flat on the grounds of forfeiture for non-payment of service charges that Ms Hyslop, one of the long lessees, said that she became aware of the FTT application.

She wrote to the FTT. The FTT sent her a copy of the application and its first directions, in which CHG had been directed to send copies of the application to all the lessees.

Ms Hyslop applied for permission to appeal, and for an extension of the time limit for making the application, on the basis that she had known nothing about the proceedings.

The FTT was, ahem, robust and short.

It refused permission to appeal because nearly nine months had elapsed since the original decision. As Martin Rodger QC noted:

  • It did not expressly address the application for an extension of time;
  • It did not treat the application as an application to set aside the decision under rule 51 (as rule 56 allows).

The first application to the Upper Tribunal

Unsuccessful with the FTT, Ms Hyslop repeated her application to the Upper Tribunal.

Martin Rodger QC directed that she should apply back to the FTT for the decision to be aside (rule 51(1)):

“the grounds of the suggested application appeared to be that documents relating to the proceedings had not been sent to, or were not received by her at the appropriate time, and (if that was the case) that it would be in the interests of justice for the decision to be set aside and remade”.

The FTT’s refusal to set aside

Ms Hyslop applied back to the FTT as directed by Martin Rodger QC. She and Mr Gream, on behalf of CHG, put in evidence about the sending and (non-) receipt of the application notice and decision.

The FTT refused to set aside its decision.

It recorded that Ms Hyslop “alleged” that she had received nothing from the FTT or from CHG, and only found out about the proceedings when the claim for possession on the grounds of forfeiture was served on her.

However, it preferred CHG’s evidence because it was “persuasive and detailed”. It decided that it would not therefore set aside the order because it was:

“not in the interests of justice to do so and as the Tribunal considers that there is no procedural irregularity that falls within the conditions in Rule 51(2).”

The appeals

On her return to the Upper Tribunal, Ms Hyslop thus had two grievances:

  1. She disagreed with the FTT’s substantive decision, and
  2. She challenged its refusal to set aside that decision.

Neither party engaged with the technical points of the appeal. Martin Rodger QC observed:

“CHG has chosen not to respond to the appeal, understandably taking the view that it had been entitled to rely on the FTT properly to apply its own Rules and did not wish to become involved in a post mortem.

“Ms Hyslop has not advanced any submissions on the effect of the Rules in support of her appeal; her case is simply that it would be unfair for her to be bound by a decision of the FTT in proceedings of which she had never been given notice.

“It is difficult to disagree with that general submission”.

So saying, he turned first to the FTT’s refusal to set aside the substantive decision.

The evidence supporting the application to set aside

He did not mince his words:

“The basis on which the FTT refused to accede to the application to set aside is not explained in its decision of 10 January 2017. It made no findings of fact and undertook no assessment of the evidence, nor did it provide any reason for preferring the evidence of CHG to that of Ms Hyslop”.

Ms Hyslop said that she had received nothing from the FTT. That was correct as a matter of fact because the FTT had directed that CHG send its documents to her. The first document that the FTT had sent to her was at her request when she asked for information about the application.

That was important because the FTT added that “allegation” to Ms Hyslop’s further statement that she had not received anything from CHG, thereby creating the impression that Ms Hyslop denied receiving any documents from two different sources, whereas in fact documents had only been sent from one source, CHG.

“Persuasive and detailed” was insufficient as justification for preferring CHG’s evidence to Ms Hyslop’s: there were no findings of fact, and no review of those findings against Ms Hyslop’s case.

Findings of fact that were broadly uncontroversial were that:

  • The application and directions had been posted by the managing agents and received by at least some leaseholders.
  • Mr Gream had used a “third party postal service” to send out the decision.

Ms Hyslop’s complaint however was not that the documents had not been sent – her complaint was that she had not received them.

“The FTT made no finding that any of the documents had been received by Ms Hyslop, nor did it give any reason for disbelieving her evidence made in a sworn statement that they had not been”, observed Martin Rodger QC.

The evidence set out in that statement was to the effect that post regularly went missing in the building. CHG had had no opportunity to respond to that evidence, mainly because there were no directions for such evidence, and the matter was decided without a hearing.

Further:

  • Mr Gream had accepted that it was “always a possibility” that post might go missing, and
  • In the past CHG had had documents served personally on Ms Hyslop and pushed under her door rather than trusting them to the post.

The FTT had not considered the credibility of Ms Hyslop’s evidence about postal problems. in the light of those two points.

It had noted the “long and troubled history of disputes” between CHG and Ms Hyslop, but had not asked itself whether, given that history, Ms Hyslop would have ignored the FTT proceedings until she was facing forfeiture.

Unsurprisingly therefore, he concluded that:

“The FTT did not deal satisfactorily with Ms Hyslop’s application under rule 51(1), which was made at the suggestion of this Tribunal with a view to dealing expeditiously with her proposed appeal. Its decision is within the scope of this appeal, and in my judgment, for the reasons I have already given, it cannot stand and I set it aside”.

Procedural irregularity

What then of Ms Hyslop’s appeal against the substantive decision? Martin Rodger QC addressed it on the basis that there had been a serious procedural irregularity.

It was on that basis that the two points of principle arose:

  • Was the FTT entitled to delegate to CHG its obligation to provide notice of the proceedings to the lessees?
  • Was the FTT entitled to do likewise in respect of its decision?

Issue 1: Was the FTT entitled to rely on CHG to provide notice of the proceedings to the leaseholders?

Martin Rodger QC returned to the rules.

He did not consider that rule 6(3)(d) was obviously relevant to the FTT’s obligation to provide documents.

Where a party applies for directions under rule 7(4), the applicant is obliged to provide its application to the other parties to the proceedings before it is made, to inform them of their right to object, and to confirm to the FTT that it has done so.

Conversely, rule 29(1) obliges the FTT to provide to the respondent(s) a copy of any application that actually begins proceedings in the tribunal.

That rule does not, as it could very easily have done, require the party bringing the proceedings to notify the respondent(s) of the application. That requirement falls on the FTT.

What does “provide” mean?

The rules require the FTT to “provide” a copy of the application to the respondent(s). What is the difference between “provide”, “serve” and “send”?

“Provide” is the verb used in rule 16, which governs “provision of documents”.

The FTT’s authority in that respect is very broad. It may:

“provide any document (including any notice or summons or other information) under these Rules by … requiring a party to do so.”

The text in brackets suggested that the “notice of application”, by which proceedings are begun, was included in that rule. Therefore, the FTT was effectively entitled to delegate to the applicant its obligation to provide notices of the application to the respondents.

That the FTT should have that power was understandable: there were 36 respondents to CHG’s application, but some applications involved hundreds, if not thousands, of respondents.

A landlord, described as Martin Rodger QC as “the most likely applicant”, would generally be well placed to provide the relevant documents to the respondents, because they “will usually already have systems in place for communicating with their leaseholders”.

“Alternative provision”

Provision of information to respondents can be challenging. Hence the allowances made if absence or another factor prevents delivery of a document to a person.

Under rule 16(11), which in Martin Rodger QC’s view could apply equally to large numbers of respondents just as it might to a single individual, the FTT is entitled:

  • To waive the requirement to send or deliver a notice, or
  • To direct an alternative method for provision of a document to a party.

Newspaper advertisements

Alternative provision of information might include advertising in local newspapers, for example in relation to any person “likely to be significantly interested in the application”, although that may not catch anyone who was already a respondent to the application, since rule 29(7)(a) requires that the publication must state that any person may apply to become a party.

Disposal of issue 1

Rule 51(1) was a safeguard: if the FTT directed that an applicant must deliver the notice of application to the respondents, rule 51(1) empowered a respondent to apply for the setting aside of any decision made without the notice of application having been received by any of those respondents.

There was therefore no in-principle objection to the FTT directing that CHG provide copies of the notice of application to each of the lessees. 

Issue 2: Was the FTT entitled to rely on CHG to provide the reasons for its decision to the leaseholders?

The answer to the first issue did not dictate the answer to the second.

“The proposition that justice requires that the final decision of a court or tribunal must be made available to the parties affected by it is so fundamental that it is difficult to find direct authority for it”, said Martin Rodger QC. “It is obvious that the delivery of a decision is an indispensable part of dealing with a case fairly and justly”.

That difficulty did not however prove insurmountable:

  • In Scott v. Scott [1913] AC 417, in which Lord Shaw of Dunfermline described publicity in the administration of justice as “one of the surest guarantees of our liberties”, and quoted from Jeremy Bentham: “publicity is the very soul of justice”, and
  • In English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 in which Lord Philips MR said at paragraph 16, that: “justice will not be done if it is not apparent to the parties why one has won and the other has lost”.

Not only was the principle enshrined in the common law: by article 6(1) of the European Convention on Human Rights “judgment shall be pronounced publicly”.

Turning next to the Tribunal Procedure Rules: the FTT may give an oral decision at the end of a hearing, but under rule 36, it remains obliged to:

“provide to each party as soon as practicable after making a decision … which finally disposes of all issues in the proceedings … a decision notice stating the Tribunal’s decision [and] written reasons for the decision.”

In Ms Hyslop’s case, the FTT had assumed that it was entitled to discharge its duty by asking the landlord to forward its decision to the lessees.

Martin Rodger QC was not prepared however to accept that the broad wording of rule 16(2) entitled the FTT to modify its “fundamental obligation to make its decisions available to all of the parties.”

“I am satisfied, said he, “that that is not a permissible interpretation of the Rules”.

The rule-making power

The Tribunal rules were made by the Tribunal Procedure Committee, which enjoys that power by virtue of section 22(2), Tribunals, Courts and Enforcement Act 2007.

Section 22(4) provides that:

(4) Power to make Tribunal Procedure Rules is to be exercised with a view to securing—

(a) that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done,

(b) that the tribunal system is accessible and fair”

Back to rule 16

As rule 16 is the rule governing the provision of documents, it was back to that rule that Martin Rodger QC turned.

The FTT’s obligation under rule 36 to provide a written notice of the decision “to each party” did not sit comfortably with rule 16. That rule allowed the FTT to direct that one party may be directed to provide another with “any document … under these Rules”.

If the Rules Committee had intended that the notice of decision be amongst the documents that one party might be directed to provide to the other, in Martin Rodger QC’s view, that intention would have been “crystal clear”.

The Committee had plainly wanted it to be clear that “any document” included “any notice or summons”, both of which being documents that the FTT might normally be expected to deliver. Its silence on the notice of decision, “most significant of all the documents in the proceedings”, was telling. Surely therefore it meant the provision of the notice of decision was not intended to fall under the wing of rule 16.

Further, whereas a party was obliged to confirm to the FTT that it had circulated to the parties any proposed application for directions under rule 7(4), there was no such requirement for the notice of decision, more important document.

Finally, it could not be correct that the FTT should be able to send to only one party not only the decision, but also the information relating to applications for permission to appeal.

Under rule 52(2), the time limit for applying for permission to appeal is 28 days after “the Tribunal sends to the person making the application … written reasons for the decision”.

Suddenly, the Rules use “sends”, as opposed to “provides”. The Rules Committee must have intended that it be the FTT that send the decision itself, not anyone else. Otherwise time for applying for permission to appeal would never begin to run for the forwarded-to party, because the FTT would never have sent its notice of decision to him/her.

Alternatively, if it did begin, when did it begin?

  • When the FTT sent its notice of decision to the applicant? If so, the applicant could run down time by holding onto the decision for a while before forwarding it, or
  • When the applicant forwarded it? If so, why was there no requirement to inform the FTT when that had happened, so that the FTT knew whether any application for permission to appeal had been made in time?

Disposal of issue 2

To Martin Rodger QC’s mind, it was clear that rule 36(2) did not permit the FTT to delegate the obligation to provide the notice of decision to any third parties. There could be no middle man.

Disposal

The impact of Martin Rodger QC’s conclusions on the FTT’s original decision?

First, the FTT’s decision was valid, and it did not matter whether Ms Hyslop had received the notice of application, because the FTT had been entitled to direct CHG to serve copies of the notice of application on the lessees.

Secondly, the FTT’s direction that CHG send its decision to the lessees did not affect the validity of that decision: see rule 8(1).

Thirdly, time for applying for permission to appeal had not started to run against Ms Hyslop until the FTT itself sent her a copy of the decision. As it was unclear whether it had ever done so, the FTT had been wrong to refuse permission to appeal on the ground that Ms Hyslop was out of time.

All of the above was consistent with the FTT’s power under rule 51 to protect parties by setting aside a decision that finally disposes of proceedings if that party has not received a document that it should have received, or where there has been some other procedural irregularity.

What to do now

Having set aside the FTT’s refusal to set aside its own decision, Martin Rodger QC was faced with the choice available to him under section 12(2) of the Tribunals Courts and Enforcement Act 2007: either remit the application to set aside to the FTT, or re-determine the set aside application himself.

He opted for the latter:

  • The only way for the FTT to decide whether to set aside would be to hold a hearing at which the parties would give oral evidence;
  • The events giving rise to the application had happened over two years before;
  • There being no direct evidence, the FTT would be reduced to making findings based on inferences from the parties’ credibility, conduct and relationship;
  • None of that was relevant to the amount of service charge for which Ms Hyslop might or might not be liable.

“Faced with that unsavoury prospect”, said Martin Rodger QC, “I am satisfied that the better course is to set aside the FTT’s original decision under rule 51(2)(d) on the grounds that there has been a procedural irregularity and that it is in the interests of justice to do so”.

The procedural irregularity was the FTT’s failure to send its notice of decision to Ms Hyslop directly.

It was in the interests of justice to set aside the decision.

The parties could then focus on Ms Hyslop’s liability to pay service charges, not on whether she had received any of the relevant documents.

The FTT’s original decision was therefore set aside and the section 27A application was remitted to a differently constituted FTT.

The impact of the forfeiture proceedings in court

All of the above was very well, but in the meantime, the county court claim for possession on the ground of forfeiture was held in abeyance. It could not be dealt with until the Tribunal proceedings had been finally determined.

Conscious of that lurking claim, Martin Rodger QC gave some initial directions in relation to the s.27A application so as to progress it as promptly as possible.

Observations

A little political

It strikes me that there must have been something, undisclosed in this decision, that caused the FTT to direct the landlord to send its decision to Ms Hyslop.

I wonder whether that something was resource. The impact of the cuts to HM Courts and Tribunal Service’s budget has been widely reported. They include this account of the appalling effect of court closures from Nearly Legal’s Giles Peaker.

Presumably the FTT is also under pressure. Perhaps in this case it felt that it did not have the resources to send out 36 copies of its decision. If that was the case, things do not bode well for applications involving large numbers of lessees.

A little scalpel

In the interests of focusing on the principles, I have cut out Martin Rodger QC’s description of the evidence that the parties put before the FTT.

Whilst I hope that no one reading this post will find themself in Ms Hyslop’s position, it is worth reading that description. It is a useful summary of the evidence that a tribunal (First-tier or Upper) would be likely to require where a party says that s/he has not received a document, and applies to set aside any subsequent decision or action because his/her position has been prejudiced.

It is worth emphasising is that not only is evidence needed about non-receipt of the document, if such evidence can be produced: it is also important to set out the effect of non-receipt of the document. For example, here Ms Hyslop explained both the problems with her post and the basis on which she wished to challenge the section 27A application itself.

A little procedural

Those of us who use the Civil Procedure Rules will be familiar with the concepts of “filing” and “serving” documents. The first describes sending a document to the court, and the second, the sending of a document to another party.

When I was previewing rule 16, I remember noting that the Tribunal Rules Committee had decided to use “provide” instead of “file” or “serve” when describing the movement of documents from one party to another and to the Tribunal.

I did not anticipate that he difference would give rise to the very detailed and close reasoning applied by Martin Rodger QC in this case.

It is evidence that in matters legal, every word counts.

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