Practice and procedure – First-tier tribunal – Conduct of litigation – Appellant landlord applying under section 27A of Landlord and Tenant Act 1985 for determination of service charges – First-tier Tribunal (FTT) refusing to allow lay representative to act on its behalf – Whether appellant entitled to appoint lay representative to conduct tribunal proceedings – Whether “conduct of litigation” before FTT a reserved legal activity – Whether lay representative an exempt person – Appeal allowed
The appellant landlord applied under section 27A of the Landlord and Tenant Act 1985 for the determination of service charges payable by the long leaseholders of eight flats in a residential block in Harrow Weald, Middlesex, known as Maison Alfort. In its application to the First-tier Tribunal (FTT), the appellant nominated its managing agent as its representative.
After a case management hearing attended by K, a director both of the appellant and the managing agent, the FTT issued procedural directions in which it stated that it would not deal with the managing agent as the appellant’s representative because it was “not permitted to conduct litigation”. It recorded K as the appellant’s representative and directed that, in his capacity as director of the appellant, he alone was entitled to carry out procedural steps on its behalf. The FTT would allow the appellant to be represented by the management company at any hearing, but not at any earlier stage of the proceedings.
Permission to appeal was subsequently granted by the Upper Tribunal, which had become aware of similar points being taken in other FTT proceedings, including the suggestion that a group of tenants was not entitled to nominate one of their number as their representative for the purpose of communicating with the FTT.
The issue was whether a party to proceedings before the FTT was entitled to be represented in those proceedings by someone who was not an authorised person for the purpose of section 18 of the Legal Services Act 2007.
None of the leaseholders participated in the appeal which was determined on written representations.
Held: The appeal was allowed.
(1) The FTT had misunderstood the relationship between the Legal Services Act 2007 (LSA 2007), the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) and the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.
The FTT correctly appreciated that its own powers, including its powers in relation to the recognition of representatives and the conduct of proceedings before it, were governed by the 2013 Rules made under section 22 of the TCEA 2007. But it concluded that rule 14 of the 2013 Rules exceeded the rule making power and was invalid so far as it had the effect of allowing persons who were neither authorised nor exempt to “conduct litigation” before it.
As section 22(1) explained, the purpose of 2013 Rules was to govern the practice and procedure to be followed in the FTT and the Upper Tribunal. Although schedule 5 to the TCEA 2007 identified a number of specific matters which might be the subject of Tribunal Procedure Rules, it did not limit the scope of section 22. Any matter of practice or procedure in tribunals might be made the subject of Tribunal Procedure Rules. It was not necessary for there to be a specific power in schedule 5 since section 22 itself delimited the rule making power and schedule 5 was expressly stated not to prejudice the generality of that power.
Permitting a party to appoint a representative (whether legally qualified or not) was a matter of practice and procedure falling within section 22 and it was therefore a matter on which the Tribunal Procedure Committee was competent to make Tribunal Procedure Rules. Furthermore, a rule such as rule 14 of the 2013 Rules which allowed the FTT to treat things done by a properly appointed representative as if they were done by a party, conferred on the FTT an ancillary power which was necessary for the proper discharge of its own functions.
(2) When considering whether steps taken in tribunal proceedings amounted to the “conduct of litigation” there was no reason not to apply the wide definition of “court” in section 207 of the LSA 2007 so that it included tribunals. The steps described in paragraph 4(1) of schedule 2 to the LSA 2007 as the “conduct of litigation” were all necessary steps which included issuing proceedings, prosecuting or defending them, or carrying out ancillary functions in relation to them.
Paragraph 4(2) contained an exemption and provided that the “conduct of litigation” did not include any of the activities described in paragraph 4(1) in relation to any particular court or proceedings, if immediately before the appointed day no restriction was placed on the persons entitled to carry on that activity.
The “conduct of litigation” in the FTT in relation to applications under section 27A of the 1985 Act was not excluded from the restrictions and penalties provided for by sections 13 and 14 of the LSA 2007. It followed that the conduct of proceedings in tribunals under that provision was a reserved legal activity which, by section 13, might only be carried on by a person who was either “an authorised person” or an “exempt person” in relation to the relevant activity.
(3) Schedule 3 to the LSA 2007 classified exempt persons by reference to the different reserved legal activities. Under paragraph 2 of schedule 3, a person was an exempt person for the purpose of carrying on any activity which constituted the conduct of litigation in relation to any proceedings if the person was not an authorised person in relation to that activity, but had a right to conduct litigation in relation to those proceedings “granted by or under any enactment” (paragraph 2(3)).
The word “enactment” was apt to cover regulations made by statutory instrument. There was nothing in the context in which the expression “granted by or under any enactment” was used in paragraph 2 of schedule 3 to indicate that only primary legislation was intended and that subordinate legislation, such as the 2013 Rules, were excluded.
(4) No part of rule 14 of the 2013 Rules was beyond the power conferred by section 22 of the TCEA 2007. The conduct of proceedings before the FTT was a reserved legal activity; but any person who had been appointed in accordance with rule 14(1)-(2) to conduct proceedings on behalf of a party was an exempt person and did not act contrary to section 13 of the LSA 2007 by doing so. Therefore, the managing agent was entitled to represent the appellant in the proceedings before the FTT, including by doing anything permitted or required to be done under the 2013 Rules, any practice direction or any direction by the FTT, except signing a statement of truth. Accordingly, the application would be remitted to the FTT for further consideration.
Eileen O’Grady, barrister
Click here to read a transcript of Buttercup Buildings Ltd v Avon Estates (London) Ltd and others
