Tribunal jurisdiction and procedure
- Jurisdiction to deal with boundary disputes.
- Time limits for applications to the Tribunal - applications sent by post.
- Tribunal taking points on its own initiative - fairness to the parties
- Burden of proof
- Costs - unreasonable behaviour
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Jurisdiction of the First Tier Tribunal
 UKUT 168 (TCC)
The First-tier Tribunal has jurisdiction to examine the title to the land concerned, to decide where the boundary lies, and to direct the registrar to give effect to the application.
If that were not so, then the First-tier Tribunal would be unable to follow the scheme of the Rules, which required a determined boundary application to be assessed not only on the accuracy of the plan (r119(1)(a) of the Land Registration Rules 2003) but also on whether the line on the plan was in fact the boundary (r119(1)(b)). It followed that where the requirement under r119(1)(b) was in issue the First-tier Tribunal could examine the evidence and decide either that the application succeeded because the line claimed was the boundary, or that it failed because the line claimed was not the boundary. It was therefore inevitable that the First-tier Tribunal would make findings about the position of the boundary in order to give reasons for its decision.
(For a case dealing with a service charge dispute which had been transferred to it by the county court, in which it was held that the Tribunal only had jurisdiction to deal with the matters specifically transferred. There was no inherent jurisdiction to deal with matters see this page).
Application under s60 LRA 2002 - how much could Tribunal decide?
 UKUT 206 (UT)
In a case where there was an issue as to the location of the boundary and also an issue as to the accuracy of the application plan, the FTT had two options: decide all of the matters in dispute before it, or decide only the issue as to the accuracy of the application plan if that could be determined separately and dispose of the entire application.
As it had jurisdiction to take either course, it was for the FTT to decide as a matter of case management which to take. Furthermore, the power under s. 110 of the Land Registration Act 2002 (“2002 Act”) allowed the FTT to decide “the matter” or to direct the parties to commence court proceedings to decide “the matter”; the FTT was not compelled to direct the parties to commence court proceedings. It had a discretion as to which course to adopt. Bean v Katz (above) applied.
Morgan J at para 55:
"I make the following comments on the question of jurisdiction:
(1) the FTT has jurisdiction to determine the matter referred to it;
(2) the FTT does not have an inherent jurisdiction;
(3) the procedure of an application for the determination of an exact line of a boundary is plainly available in a case where there is no wider boundary dispute but it is desirable to identify more precisely the exact line of the boundary;
(4) however, the procedure for the determination of an exact line of a boundary can also be used where there is a general boundary dispute and where there is no separate question as to the accuracy of the applicant’s plan if the applicant’s case as to the general boundary were to be accepted; indeed, this was accepted (I think correctly) by Mr and Mrs Lowe at all stages in this matter until it emerged in the course of questions from the FTT that there was a separate question as to the accuracy of the plan;
(5) further, this procedure can also be used where there is an issue as to the location of the boundary and an issue as to the accuracy of the application plan;
(6) in a case where there is an issue as to the location of the boundary and also an issue as to the accuracy of the application plan, it is open to the FTT to decide all of the matters in dispute before it but it is also open to it to decide only the issue as to the accuracy of the application plan if that can be determined separately and might dispose of the entire application; it is for the FTT to decide as a matter of case management which course to take; it has jurisdiction to take either course; Lowe & Lowe v William Davis Ltd Draft 26 June 2018 16:34 Page 18
(7) although the right order to make on an application for the determination of an exact line of a boundary will normally be either a direction to give effect to the application or to cancel the application, that does not limit the jurisdiction of the FTT to make findings and decisions; further, pursuant to rule 40 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the FTT may include a direction to the registrar to give effect to the application “in whole or in part” and may add a condition to its direction;
(8) in a case where the issue between the parties is as to which of them is right as to the location of the boundary and there is no separate issue as to the accuracy of the application plan, the FTT’s direction as to whether the registrar should give effect to the application or cancel the application will be the means of resolving the dispute as to the location of the boundary;
(9) the power under section 110 allows the FTT to decide “the matter” or to direct the parties to commence court proceedings to decide “the matter”; the FTT is not compelled to direct the parties to commence court proceedings but it has a genuine discretion as to which course to adopt; the wording of section 110(1) shows that the FTT has jurisdiction to decide the same matter as it can direct should be the subject of court proceedings;
(10) in some circumstances, the FTT may well take the view that a general boundary dispute would be better litigated in the courts rather than before the FTT but it is not obliged to take that view in every case;
(11) if it were the case that it was foreseeable that the FTT’s decision as to a general boundary would not give rise to an issue estoppel because the application might fail on a separate point as to the accuracy of a plan (a point which I do not decide), that might be a consideration which would militate in favour of the FTT directing that the parties commence court proceedings where the decision of the court on the location of the boundary would, or at least would be more likely to, give rise to an issue estoppel."
Time limits - application sent by post
 UKUT 60 (LC)
The relevant date for the purposes of when an application under s48(2) of the Leasehold Reform Housing and Urban Development Act 1993 is made is the date that it was posted to the Tribunal, correctly addressed and stamped.
Relevant statutory provisions
Section 48(2) of the LRHUD Act 1993 provides that:
- “(2) Any application … must be made not later than the end of the period of six months beginning with the date on which the counter-notice or further counter-notice was given to the tenant.”
Rule 26(1) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 provides that:
- “(1) An applicant must start proceedings before the Tribunal by sending or delivering to the Tribunal a notice of application.”
A leasee (T) was potentially entitled to an extended lease under Chapter II of Part I of the LRHUD Act 1993. The relevant notice and counter-notice were given. The 6-month period for T to make his application to the Tribunal expired on 21 April 2016. On 18 April 2016 T’s legal representative posted an application to the Tribunal by first class. The application was not received by the Tribunal until 9 May 2016.
At a paper hearing to determine jurisdiction, the First-tier Tribunal (FTT) held that it had no jurisdiction to hear the claim. It also concluded that there was no evidence before the Tribunal that T’s representative had posted the application on 18 April 2016.T’s representative had asserted as much in his written representations to the Tribunal, but there was no formal evidence to support the assertion available at the paper hearing. T appealed to the Upper Tribunal.
- Whether the Tribunal had applied the wrong test by focusing on the day when the application was received, rather than the date on which it was posted.
- Whether the Tribunal had erred procedurally by dismissing T’s representative’s assertion that he had posted the application without giving him the opportunity to file evidence in support and for that evidence to be tested on cross examination.
Decision on appeal
The Upper Tribunal allowed the appeal.
- The word “made” in section 48(2) of the 1993 Act referred to a unilateral act by the applicant. Further, rule 21(1) of the First Tier Tribunal Procedure Rules provided two methods for starting proceedings: “sending” or “delivering” a notice of application to the Tribunal. Either of those two acts was sufficient to start the proceedings. Therefore, an application will be considered “made” on the day of “the posting of a correctly addressed (and sufficiently stamped) notice of application to the FTT”. This is so, even if the application notice is delayed in the post or does not arrive.
- The Upper Tribunal held that the FTT were not bound to accept the representative’s assertion that he had posted the letter on time, but, if it was not so inclined, the proper course was to require the representative to provide a witness statement and attend for cross examination. It was not open to the FTT to simply reject his assertion out of hand. The factual issue of the date of the posting of the application notice was remitted to the Tribunal. The Upper Tribunal recognised that, whereas a certificate of postage was the best method of proving that a document has been sent, it was not the only method.
Tribunal taking point on its own initiative
Fairness to the parties
Admiralty Park Management Company Limited v Olufemi Ojo  UKUT 421 (LC)
The lessee made an application for the tribunal to determine his liability to pay service charges. The First-tier Tribunal (FTT) identified, on its own initiative, that the service charges had not been calculated in accordance with the lease, but refused the managing agent an adjournment to formulate a full response to the point, eventually holding that the charges were not recoverable. On appeal, the Upper Tribunal found that the FTT should have allowed the managing agent a proper opportunity to respond to it, even if this necessitated an adjournment of the hearing.
The service charge mechanism under the lease provided for the tenant to pay a share of the costs of services to the building in which the flat was housed, and to pay a different share in respect of maintenance of the outside common parts of the estate. Over a number of years (since at least 2009 according to the evidence) the managing agents had divided the costs of maintenance of all the buildings amongst all the long-leaseholders on the estate. The lessee raised no objection to this in his application or any of his evidence before coming to trial. The Tribunal, however, noted the discrepancy and made a finding against the managing agent on that basis. In the Upper Tribunal, the managing agent adduced evidence that this was a long-established practice to which the lessee had acquiesced, and therefore argued an estoppel by convention had arisen.
- Whether the Tribunal should have raised the point on its own volition;
- Having raised the issue, whether the Tribunal have adjourned to allow the managing agent to deal with the matter in full;
- Whether an estoppel by convention had arisen.
The Tribunal found for the managing agents and held that an adjournment should have been allowed and that an estoppel had arisen.
- The Tribunal was perfectly entitled to raise issues of its own initiative, ( Regent Management v Jones  UKUT 369 (LC) and Birmingham City Council v Keddie  UKUT 323 (LC)). The Tribunal would often, par-ticularly when one or more of the parties was unrepresented, be in a better position than the parties to identify all of the issues in a case, in order to facilitate doing justice between them. In this case, the managing agent’s departure from the scheme of accounting required by the lease was so fundamental that it was “both proper and inevitable” that the Tribunal should raise the issue at the hearing.
- However, where a Tribunal raises a new point that has not previously been referred to by either party, before reaching its decision, it must as a matter of natural justice give both par-ties an opportunity of making submissions and, if appropriate, adducing further evidence in respect of the new issue. The managing agents had not been given sufficient opportunity in this case.
- On the facts, the Upper Tribunal was satisfied that an estoppel had arisen. The method of apportionment (which had been used for many years) had been obvious to the leaseholders, and in particular, there had been a similar dispute in relation to service charges before the LVT in 2011 and the lessee had not raised the point then.
This case provides useful guidance on the power of the Tribunal to raise issues on its own initiative. It irons out the apparent contradictions between the decisions in Regent Management v Jones and Birmingham City Council v Keddie by holding that, although it is an important part of the Tribunal’s role to assist the parties in formulating the issues (especially when they are in person), such power should not be exercised so as deny the parties an op-portunity to put their case in full on the new point, even if this results in an adjournment.
Burden of proof
Duty of Tribunal to make a decision on the evidence
Eldersan Limited v Covic (PR of Mrs Dusica Macrae-Brown) (Deceased)
 UKUT 3 (LC)
The Upper Tribunal reversed the decision of the First-tier Tribunal in a claim brought by the freeholder for a determination that there had been a breach of covenant under s. 168(4) of the Commonhold and Leasehold Reform Act 2002. The FTT had relied too heavily on the burden of proof, and made inadequate attempts to assess the evidence. The Upper Tribunal considered that there was ample evidence before the First-tier Tribunal from which it should have concluded that on the balance of probabilities the relevant covenant had been breached.
The case concerned a two-storey building split into two flats. The lease of the ground floor flat included covenants obliging the leaseholder:
- not to cut any of the walls, ceilings, floors or partitions of the demised premises.
- not to make any structural alterations without the previous consent in writing of the landlord; and
- to keep the demised premises “in good substantial and tenantable repair and condition and in particular so as to support shelter and protect the parts of the property other than the demised premises …”
The ground floor leaseholder obtained planning permission to erect a rear extension and obtained a licence from the freeholder to conduct the works. However, the works done went beyond the licence granted. Around the time of the work, significant cracking manifested in the first floor flat.
The freeholder sued for a determination that breaches of covenant had been committed, pursuant to s168(4) of the 2002 Act. The particular aspects of the work under scrutiny were the removal of the front chimney breast on the ground floor, the lowering of the floor of the basement, the removal of part of the corbelling at the base of the party wall, and the removal of a spine wall in the ground floor flat.
The FTT found that there had been breaches of covenant by the removal of the chimney breast and the lowering of the basement floor, but found that the removal of spine wall was not a breach of the clause to keep the demised premises in good substantial and tenantable repair and condition so as to support the rest of the property.
The Tribunal heard expert evidence from structural surveyors for both the freeholder and the leaseholder on the latter point. The surveyors’ evidence conflicted. The Tribunal therefore found that it was unable to determine that the movement in the upper flat was due to the works on the spine wall and therefore dismissed the freeholder’s application on that ground.
Decision on appeal
The FTT’s decision was heavily criticised by the Upper Tribunal on appeal.
The FTT appeared to have decided the issue entirely on the basis of the burden of proof, stating that due to the conflict of evidence it was unable to find for the freeholder (upon whom the burden to prove the basis of the application would lie).
The Upper Tribunal considered that this case fell within the circumstances where the Upper Tribunal can and must interfere with the fact finding of the FTT. The FTT had clearly erred in resorting too readily to the burden of proof as the means of resolving a disputed question of fact. Notwithstanding the conflict of evidence between the experts, the Tribunal should have had regard to the other evidence before it in order to determine whether it was more likely than not that the damage had been caused by withdrawal of support below. In particular, a schedule of condition had been prepared before the works were undertaken and reference to the same would have shown that additional cracking in the upstairs flat had emerged during the works themselves.
The Upper Tribunal reviewed the authorities on when the burden of proof may be legitimately resorted to by a court or tribunal. In particular, reference was made to the comments of the Court of Appeal in Court of Appeal in Verlander v Devon Waste Management  EWCA Civ 835, where Auld LJ expressed the relevant principles as follows:
- “A judge should only resort to the burden of proof where he is unable to resolve an issue of fact or facts after he has unsuccessfully attempted to do so by examination and evaluation of the evidence.”
- “Resort [to the burden of proof] is only necessary where on the available evidence, conflicting and/or uncertain and/or falling short of proof, there is nothing left but to conclude that the claimant has not proved his case. The burden of proof remains part of our law and practice - and a respectable and useful part at that - where a tribunal cannot on the state of the evidence before it rationally decide one way or the other.”
- “The Court of Appeal should only intervene where the nature of the case and/or the judge's reasoning are such that he could reasonably have been able to make a finding one way or the other on the evidence without such resort.”
The Upper Tribunal conducted its own site visit and reassessed the relevant evidence before concluding that there had been a breach of the relevant covenant.
Firstly, this case is a useful practical reminder that in civil proceedings (including proceedings before the property tribunals) the burden of proof is rarely likely to be determinative or crucial to the outcome of a case.
Of course, the burden is on the party who brings a case or who asserts a fact to prove that case with evidence, but the circumstances where a tribunal may decide an issue purely on the burden of proof alone will be extremely rare.
Secondly, this case emphasises that, if a tribunal considers that it must resort to the burden of proof when determining a case, it must refer in its reasons to the steps that it has taken to analyse the evidence as a whole and explain why it was not able to reach a view on the evidence available. If such reasoning is not included, the decision will be open to appeal on the basis of inadequate reasoning.
 UKUT 290 (LC)
The Upper Tribunal has given guidance on the procedure and a three-stage analysis to apply when the First-tier Tribunal considers making a costs order on account of a party's alleged unreasonable behaviour in bringing, defending or conducting proceedings.
The court heard three conjoined appeals against costs orders made under rule 13(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (“the Rules”) on account of a party's unreasonable behaviour in bringing, defending or conducting proceedings. All three of the appeals arose out of disputes over service charges between leaseholders and management companies. The First-tier Tribunal had found that:
- The first appellant management company had behaved unreasonably in bringing proceedings against the leaseholder without having complied with a contractual procedure;
- The second appellant's conduct in failing to pay her service charge, in defending herself on what it considered to be spurious grounds and in generally behaving unreasonably, also justified an award under rule 13; and
- The third appellant, who had been unrepresented, had acted unreasonably by not withdrawing proceedings earlier.
The cases were appealed to the Upper Tribunal.
The Upper Tribunal allowed the appeals. When considering where behaviour is “unreasonable” the Upper Tribunal held as follows:
- An assessment of whether behaviour was unreasonable required a value judgment on which views might differ, but the standard of behaviour expected of parties in tribunal proceedings ought not to be set at an unrealistic level.
- There was no reason to depart from the guidance on the meaning of "unreasonable" in Ridehalgh v Horsefield  Ch 205.
- Unreasonable conduct included conduct that was vexatious and designed to harass the other side rather than advance the resolution of the case. It was not enough that the conduct led to an unsuccessful outcome. The test could be expressed in different ways by asking whether a reasonable person in the position of the party would have conducted themselves in the manner complained of, or whether there was a reasonable explanation for that conduct.
- Tribunals ought not to be over-zealous in detecting unreasonable conduct after the event and should not lose sight of their own powers and responsibilities in the preparatory stages of proceedings.
The first stage of the analysis was an objective decision about whether a person had acted unreasonably. If so, at the second stage, a discretionary power was engaged and the tribunal had to consider whether it ought to make a costs order. If so, the third stage was the terms of the order.
Further, there was no general rule in the Tribunal that the unsuccessful party would be ordered to pay the successful party's costs. The fact that a party was unrepresented was relevant at the first stage. The behaviour of a unrepresented party with no legal knowledge should be judged by the standards of a reasonable person who did not have legal advice.
Rule 13(1)(a) and (b) should be reserved for the clearest cases and it was for the party claiming costs to satisfy the burden of demonstrating that the other party's conduct had been unreasonable.
In relation to each of the appeals, the Upper Tribunal held that:
(1) In the first appellant's case, the tribunal had accorded too much weight to the fact that the first appellant had lost at the substantive hearing, and the Tribunal had applied a standard of reasonableness that fell well below the applicable threshold.
(2) In the second appellant's case, the Tribunal's decision was procedurally unfair as she had been given no proper opportunity to respond to the case against her, and no proper opportunity to defend the reasonableness of her conduct. Further, the grounds relied on were not capable of amounting to unreasonable conduct. The mere fact that an unjustified dispute over liability for service charge had given rise to the proceedings could not itself be grounds for a finding of unreasonable conduct; only behaviour relating to the conduct of the proceedings themselves could be relied on at the first stage of the rule 13(1)(b) analysis.
(3) In the third appellant's case, it had been legally wrong to treat his withdrawal of the claim as unreasonable conduct. In Tribunal proceedings, there was no imputation that a discontinued claim was doomed to fail or should never have been brought.