Pilot project by First-tier Tribunal (Property Chamber) makes progress in allowing cases to proceed in one location even where they raise cross-jurisdictional issues
Until the middle of the 19th century, when parliament passed a series of great reforming Acts, it was not possible for the common law courts to grant equitable remedies, including in particular injunctions or specific performance. To us nowadays, such remedies seem an indispensable part of the relief available to litigants, and it is unthinkable that a litigant in one court, seeking damages, might have to incur the expense of having to trot off to another if an injunction became necessary.
One day in the future, it may similarly be unthinkable that a litigant in a property dispute should have to seek one remedy in court and another remedy arising out of precisely the same dispute in a different tribunal. Yet that is the situation with which litigants are routinely confronted in a range of property disputes.
Divided we fall
Here are some examples of cases where the current jurisdictional arrangements result in different parts of a dispute having to be heard in different courts and tribunals.
Forfeiture
Section 168(4) of the Commonhold and Leasehold Reform Act 2002 entitles the First-tier Tribunal (Property Chamber) (“the FTT”) to make a determination that a tenant is in breach of a lease, but not to find whether the breach has been waived; nor to make a determination of the terms on which relief against forfeiture might be available. If and when the landlord has secured such a determination, only then may it serve a notice under section 146 of the Law of Property Act 1925 (“the 1925 Act”) before commencing forfeiture proceedings – and those proceedings may only be brought in court, not in the FTT.
Service charges
A host of problems here. First, both the court and the FTT can decide whether a service charge is payable, but only the FTT can dispense with service charge consultation requirements under section 20(ZA) of the Landlord and Tenant Act 1985. So, if a service charge case is dealt with by the court and an issue arises as to dispensation, that issue must be sent to the FTT. Second, the FTT is not entitled to deal with claims for arrears of ground rent and interest, no matter how tiny these might be. Third, although the FTT can consider a defence of set-off (say for damages for dilapidations) to a service charge claim, it can do so only up to the limit of the service charge claim, and is not allowed either to deal with the balance of the tenant’s claim, or to order the landlord to carry out necessary works. Fourth, in the case of estates where maintenance charges are levied on both leaseholders and freeholders (for example, for the upkeep of communal gardens) the FTT can deal with cases brought by or against lessees but not by or against freeholders, even where the subject matter of the claims is identical.
Enfranchisement
Here too the jurisdiction to deal with enfranchisement claims is divided between the courts and the FTT. In sum, the county court decides entitlement, while the FTT decides disputed terms of acquisition, including price. That is so notwithstanding the fact that the issues of entitlement which typically arise are the same as those which the FTT can and does already decide in disputed claims to exercise the right to manage under the Commonhold and Leasehold Reform Act 2002 (although problems arise for the FTT even in such claims, because it lacks enforcement powers).
Lots more examples of this type arise in relation to (among others) claims under the Housing Act 2004, the Mobile Homes Act 1983, the Caravan Sites and Control of Development Act 1961, the Trust of Land and Appointment of Trustees Act 1996, the Land Registration Act 2002, and applications to HM Land Registry. Quite apart from that, there are also split jurisdiction problems that arise concerning commonplace issues generated by restrictive covenants: claims as to the meaning and effect of such covenants must go to court, whereas claims for discharge or modification under section 84 of the 1925 Act can only go to the Upper Tribunal (Lands Chamber).
Together we stand
Thanks to the ingenuity and perseverance of Siobhan McGrath, the current president of the FTT, a solution is not merely in sight, but is steadily being delivered. The president first noticed that, as a result of amendments to the County Courts Act 1984 made by the Crime and Courts Act 2013, and as a consequence of the provisions of the Tribunals Courts and Enforcement Act 2007, all FTT judges can hear cases and decide issues within the jurisdiction of the county court, while all county court judges can hear cases and decide issues within the FTT’s jurisdiction.
Next, at her suggestion, the Civil Justice Council (“CJC”) set up a working party chaired by the president in July 2015 to consider ways of ensuring that all issues in dispute in property cases are dealt with in one forum. In its report in May this year, the CJC recommended that (i) a list of suitable property disputes for special treatment should be drawn up; (ii) in the case management of such cases, judges should decide whether the court or the tribunal is the most appropriate forum; and (iii) the county court and the tribunal should have the powers where appropriate to transfer cases to each other, and to retain cases that they would otherwise have had to transfer.
Subsequently, a pilot project into combined jurisdiction conducted by the FTT has been approved, and is making encouraging progress, with FTT judges hearing not merely cases in which they have existing jurisdiction, but also, with the consent of the parties, cases in which the court has jurisdiction. There is much detail to be worked out concerning remedies, costs and appeals, but all this is steadily being progressed under the guidance of the president. A net gain for justice and for litigants.
• Guy Fetherstonhaugh QC is a barrister at Falcon Chambers
