Rule 16: The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013:1169: Provision of documents

(1) Any document to be provided under these Rules, a practice direction or a direction must be—

(a) sent by prepaid post or by document exchange, or delivered by hand to the address specified in paragraph (5);

(b) sent by fax to the number specified for the proceedings;

(c) as regards any document sent or delivered to or by the Tribunal, by such other method as the Tribunal may permit; or

(d) as regards any document to be sent or delivered by a method other than one provided for by sub-paragraphs (a), (b) or (c) or another paragraph in this rule, by such other method as the recipient may permit.

(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.

(3) In any case to which section 39, 41 or 53 of the 1986 Act applies, the applicant, not the Tribunal, must send or deliver a copy of the application and accompanying documents to the landlord of the agricultural holding to which the application relates and to any other person known to the applicant to be interested in the outcome of the application.

(4) If the Tribunal permits or directs documents to be provided to it by email, any requirement in these Rules for a signature on a document may be satisfied by a typed instead of a handwritten signature.

(5) Subject to paragraph (6), the address for the purposes of paragraph (1)(a) is—

(a) in the case of the Tribunal, the address of the office of the Tribunal;

(b) in the case of an incorporated company or other body registered in the United Kingdom, the address of the registered or principal office of the company or body or any alternative address notified by that company or body to the Tribunal and all other parties for the purposes of provision of documents;

(c) in the case of any other person, body or authority, the usual or last known address of that person, body or authority.

(6) The Tribunal and each party may assume that the address provided by a party or its representative or, in a reference, by the registrar is and remains the address to which documents should be sent or delivered until receiving written notification to the contrary and an alternative address for communications.

(7) Subject to paragraph (8), if a party provides a fax number, email address or other details for the electronic transmission of documents to them, that party must accept delivery of documents by that method.

(8) If a party informs the Tribunal and all other parties that a particular form of communication, other than pre-paid post or delivery by hand, should not be used to provide documents to that party, that form of communication must not be used.

(9) If the Tribunal or a party sends a document to another party or to the Tribunal by email or any other electronic means of communication, the recipient may request that the sender provide a hard copy of the document to the recipient. The recipient must make such a request as soon as reasonably practicable after receiving the document electronically.

(10) Unless the Tribunal otherwise permits, where a document is provided for the purposes of the proceedings is or contains a map, plan, drawing or photograph, any copy provided of that map, plan or drawing must be in the same colours as the map, plan, drawing or photograph of which it is a copy, and in agricultural land and drainage cases, maps of any holding or land must be to a scale of 1:10,000 or larger.

(11) The Tribunal may waive a requirement under these Rules to send or deliver a notice or other document to a person or make an order for provision by alternative method (whether by advertisement in a newspaper or otherwise) as the Tribunal may think fit if that person—

(a) cannot be found after all diligent enquiries have been made;

(b) has died and has no personal representative;

(c) is out of the United Kingdom; or

(d) for any other reason a notice or other document cannot readily be sent or delivered to that person in accordance with these Rules.

(12) Where an enactment requires evidence that a party has supplied any person with a document, that party may satisfy the requirement by providing a certificate signed by the party confirming that the document was provided in accordance with the requirements of this rule.

Rule 16 is the first of three rules which broadly replace old rules 16 and 23. It deals with what is known, in Civil Procedure Rule-speak, as service of documents. Rule 17 empowers the Tribunal to prevent the disclosure or publication of documents and information, and rule 18 regulates disclosure itself.

In the Tribunal, service of documents will be known by the unfussy name of “provision of documents”: the well-worn direction that the parties file and serve documents will therefore be permanently retired.

Structure of new rule 16

New rule 16 can be divided into six parts:

1) Methods of providing documents to the Tribunal and the other parties in the proceedings (subrules 1, 2, 4, 7 and 8);

2) Where it is to be sent (subrules 5, 6,);

3) Hard and soft copies of documents (subrule 9);

4) Maps plans and photographs (subrule 10);

5) Alternative service (subrule 11), and

6) Evidencing service (subrule 12).

Subrule (3) applies only to applications under the Agricultural Holdings Act 1986, and need not concern us here.

Subrules 1, 2, 4, 7 and 8: Methods of service of documents

In this era of e-activity, the first point to note is that the provision of documents by email is not valid unless the Tribunal or the receiving party expressly permits it.

The second point is that not only may the Tribunal require a party to send a document to another party; it may provide that document to that party itself.

I suspect that I may be allowing the more morbid side of my imagination freer rein than I should, but the following occurs to me:

• Rule 14 (Representatives) relaxes the restrictions on persons entitled to represent litigants;
• In cases where the Tribunal allows for documents to be sent by email, subrule 16(4) removes the requirement for a handwritten signature: a typed signature suffices;
• The less scrupulous – or the less procedurally aware – representatives may therefore feel that they can sign statements on behalf of the party they represent without that party necessarily being aware of the full detail of the statement being signed.

This concern is particularly relevant for witness statements, which the other side will rely on as being true to the best of the knowledge and belief of the signatory.

Moving on: subrules 7 and 8 are helpful. I have not seen the new Tribunal application form, but I imagine that it will contain the normal boxes for DX, fax, email and other addresses.

It is clear from subrule 7 that whatever details are given to the Tribunal, a party must be prepared to receive documents at those addresses and numbers unless, under subrule 8, it expressly revokes its agreement to that method of provision.

Subrules 5, 6: Addresses for provision of documents

It is to be hoped that the parties will have the address of the Tribunal for the purposes of the provision of documents. The registered address of a limited company in England and Wales is normally also reasonably straightforward to come by at Companies House.

The tricky addresses can those of unincorporated associations or individuals.

In principle, the majority of the parties to service charge disputes being landlord, tenant and managing agents, there should be little difficulty identifying the address for provision of documents:

• Section 48 of the Landlord and Tenant Act 1987 requires the landlord to give a tenant an address in England and Wales at which notices, including notices in proceedings, can be served;
• The tenant should receive documents sent to the address of the property subject of the dispute, especially if the lease contains a clause prohibiting alienation or the unreasonable withholding of consent to alienation.

As however the case of Tobicon showed, there is no guarantee that anyone will be where they should be.

One address which can prove difficult is that of the local authority, for reasons often more to do with an abundance as opposed to an absence of addresses at which a local authority can be based. When in doubt, ring the main switchboard and ask.

I have a feeling that subrule 6 repeats rule 14(4)(b), but applies it to all parties and their representatives, whereas rule 14(4)(b) deals only with the situation as it applies to a change or discharge of a representative.

Subrule 9: Hard and soft copies of documents

I was about to note that subrule 9 puts and end to arguments about whose printer ink should be applied to the printing of emailed documents, but I realised that whilst the subrule allows for the recipient to ask for hard copies of those documents, it does not oblige the emailer to provide a hard copy.

I suspect however that a recalcitrant emailer may find a) that his overly technical application of the rules is revisited upon him/her by an order for costs, and b) that the Tribunal would direct him to provide hard copies in any event pursuant to the overriding objective.

Subrule 10: Maps, plans, drawings and photographs

This is a rule that will see Tribunals and suppliers of colour printer cartridges across the country putting out the bunting. Its effect should be that when a witness refers to “the area coloured blue” on a plan, or the evidence of poor paintwork on a photograph, everyone will be able to identify the area or the paintwork in question without a short adjournment to annotate their copy of the plan or pass around the only colour photograph in the room.

Subrule 11: Alternative service

This new subrule is a minor reworking of old rule 23:

• The requirement to send or deliver a notice or document can now be waived, as opposed to dispensed with under the old rule, and
• The power to order alternative service is preserved.

The courts are increasingly imaginative about alternative service. In October 2009, in a dispute about impersonation on Twitter, the High Court permitted service of an injunction via Twitter. I understand that it had the desired effect. The biter bit, in a manner of speaking.

Subrule 12: Evidencing service

The basic requirements here could probably be satisfied by simply reproducing the last clause of this subrule, ie “I confirm that [document x] was provided in accordance with this rule”. I think however that if I were advising a client, I would suggest a more detailed certificate, setting out:

• The name and address of the addressee;
• How it was sent, ie by hand/first class/recorded post/fax etc;
• The date on which the document was delivered/consigned to the post box/faxed etc, and
• Any supporting documents such as a certificate of posting or a fax confirmation sheet.