Park homes – First-tier Tribunal – Procedure – Appellant applying to First-tier Tribunal for review of pitch fees – FTT giving directions for conduct of proceedings and requiring appellant to send copy of directions to purported respondents – Appellant appealing – Whether FTT entitled to require party to serve directions on another party – Appeal allowed
In September 2024, the First-tier Tribunal received an application from the appellant for the review of pitch fees under the Mobile Homes Act 1983 in relation to 13 occupiers of Berrynabor Park, Sterridge Valley, Ilfracombe. On 24 September 2024, the FTT gave directions for the conduct of the proceedings, including a requirement for the respondents to write to the FTT acknowledging receipt of the application and directions, and for the preparations for the hearing and the assembly of a bundle.
Paragraph 11 of the directions stated: “By 30 September 2024 the applicant shall send a copy of these directions and a copy of the Tribunal’s Statement of Rules and Procedure to each of the respondents. The applicant shall confirm to the Tribunal that they have served these documents by 2 October 2024. In default of compliance the application shall be struck out without any further notice being given” (the order).
The appellant appealed against that order on the ground that the FTT was not entitled to require it to serve the FTT’s directions on the respondent without a “good reason” as required by rule 7(6). There was no respondent, because the order was made at a time when the proposed respondents in the FTT had not been served with the proceedings and so they were not involved in or affected by the order.
Held: The appeal was allowed.
(1) The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 gave it extensive case management powers. In particular, rule 6(3)(d) provided that the FTT might: “permit or require a party or another person to provide or produce documents, information or submissions to any or all of the following — (i) the Tribunal; (ii) a party; (iii) in land registration cases, the registrar”.
Rule 7 of the 2013 Rules provided that “(1) The Tribunal may give a direction on the application of one or more of the parties or on its own initiative … (6) Unless the Tribunal considers that there is good reason not to do so, the Tribunal must send written notice of any direction made by the Tribunal to every party and to any other person affected by the direction”.
Moreover, rule 16(2) stated: “(2) The Tribunal may provide any document (including any notice or summons or other information) under these Rules by — (a) itself sending or delivering the document; or (b) requiring a party to do so”.
(2) In the present case, the Upper Tribunal had to decide whether rule 16(2), together with rule 7(6), enabled the FTT to require an applicant to send its directions to the respondent instead of sending them itself. Certainly rule 7(6) did not in terms enable the FTT to require a party to send its directions to another party. Rule 16(2) was no more apt to describe directions or an order of the FTT than it was to describe the FTT’s reasoned decision. Directions required action from the parties, and the consequences of not complying with them were serious even though they did not constitute the FTT’s final decision. If the FTT’s directions were delivered by a party rather than by the FTT there was an obvious risk of dispute about whether and when they were delivered. There was also the risk of compromise of the perception of the FTT’s independence if it used a party as its own messenger. Importantly, directions (like a final decision) could be appealed, and an application for permission to appeal directions and reasoned decision alike had to be made, according to rule 52(2) of the 2013 Rules “… within 28 days after the latest of the dates that the Tribunal sends to the person making the application: (a) written reasons for the decision; (b) notification of amended reasons for, or correction of, the decision following a review; or (c) notification that an application for the decision to be set aside has been unsuccessful”.
(3) If the directions or decision were sent out by a party, that provision did not work and time for applying for permission to appeal never started to run. In the same way rule 5(3) made provision for a party to ask for a fresh consideration by a judge of a direction made under delegated powers “within 14 days after the Tribunal sends notice of a decision made by a member of staff … to a party”. The FTT had to send the decision itself, and there was no provision for it to require a party to do so, so as to minimise the possibility of confusion and dispute about the time the directions were sent to the party and about when the time for seeking permission to appeal began. If rule 16(2) had been intended to enable the FTT to delegate to a party the sending of its directions to a party to whom they are addressed, it would have made that crystal clear: Hyslop v 38/41 Residents Co Ltd [2017] UKUT 398 (LC) considered.
(4) Rule 7(4) required the party making the application to send it to the other party or parties. Rule 7(6) required the FTT itself to send out its directions. The contrast was obvious. If rule 7(6) had contemplated that another party could be required to send the directions instead, it would have put that beyond doubt either by wording similar to that of rule 7(4), or by making a direct reference to rule 16(2), or by echoing the provision in rule 16(2) for the FTT to send the directions either by itself sending or delivering them or by requiring a party to do so. The point of rule 7(6) was that it was the FTT’s responsibility to send its directions to every party and every person affected by its decision unless there was a good reason, not for someone else to do so, but for the directions not to be sent at all. Such cases would be rare. There was no provision for the FTT to require it to send the FTT’s directions to the respondents, for whatever reason.
The appeal was determined on written representations.
Eileen O’Grady, barrister
Click here to read a transcript of Wyldecrest Parks Management Ltd
