“Double hatting” arises when a judge of the First-tier Tribunal also sits as judge of the county court under the flexible deployment arrangements. Behjat v Crescent Trustees Ltd [2022] UKUT 115 (LC) provides an apt reminder of the procedural difficulties that can arise in such cases.
The respondent landlord issued proceedings in the county court against the appellant tenant for the recovery of service charges and contributions to the reserve fund. The tenant challenged the reasonableness and payability of the service charges in his defence. A district judge made an order transferring the claim to the FTT for a determination of the recoverability and payability of the service charges. The order did not make arrangements for concurrent jurisdiction to be exercised by any judge.
On 7 July 2021, directions were given by the FTT (the order of 07.07.21). It provided expressly that all the issues in the case, including interest and costs, would be dealt with by a judge of the FTT. The judge would also sit as a judge of the county court and make all necessary county court orders. The order also included a direction requiring the landlord to file and serve an amended claim form and particulars of claim, which included a CPR compliant statement by 6 August 2021, failing which the “tribunal/court may strike out all or part of their case pursuant to rule 9(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013… or the Civil Procedure Rules”. The landlord failed to comply.
On 16 August 2021, the FTT struck out the landlord’s claim (the order of 16.08.21). The parties were invited to make representations as to the form of the county court order that should be made. The landlord applied for relief from sanctions, but the application was refused by the FTT on 28 September 2021 (the order of 28.09.21).
On 30 September 2021, a case officer of the FTT wrote to the parties enclosing directions dated 29 September 2021 (the letter of 30.09.21). It stated that the matter had been reviewed by a deputy regional judge who had set aside all the decisions and orders made after the order of 07.07.21.
The letter of 30.09.21 went on to explain that the orders of 16.08.21 and 28.09.21 were a nullity because the strike-out application had not been made in accordance with CPR 23. It also stated that the order of 16.08.21 had been made by a judge sitting in the FTT under its rules of procedure, who did not have jurisdiction to strike out the county court claim. The tenant appealed.
The tenant’s primary ground of appeal was that the letter of 30.09.21 was made without jurisdiction. The UT agreed. It found that the letter of 30.09.21 was in fact an order, which failed to explain the jurisdictional basis for reviewing the orders of 16.08.21 and 28.09.21. Further, it failed to follow fair procedures. It did not allow the parties to make representations before setting aside the orders of its own initiative.
The UT found that the problems in the present case arose principally from the order of 07.07.21, which appeared to be a deployment decision. If it was, it should have been made by the relevant designated civil judge in the county court. Section 176A of the Commonhold and Leasehold Reform Act 2002 only permitted the transfer of matters which the FTT had jurisdiction to determine. The FTT could not deal with matters falling within the exclusive jurisdiction of the county court.
For guidance, the UT reiterated its earlier guidance provided in Avon Ground Rents Ltd v Child [2018] UKUT 204 (LC); [2018] PLSCS 114: “It is… essential that where a judge acts on the same occasion both as a judge of the FTT and as a judge of the county court, that judge is very clear in his or her own mind as to which ‘hat’ is being worn in relation to each aspect of the decision-making process, and that he or she maintains and articulates a clear distinction at all times between the discrete functions and roles being performed.”
Elizabeth Dwomoh is a barrister at Lamb Chambers
