Rule 17: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169: Prevention of disclosure or publication of documents and information

(1) The Tribunal may make an order prohibiting the disclosure or publication of—

(a) specified documents or information relating to the proceedings; or

(b) any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified.

(2) The Tribunal may give a direction prohibiting the disclosure of a document or information to a person if—

(a) the Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and

(b) the Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.

(3) If a party (the first party) considers that the Tribunal should give a direction under paragraph (2) prohibiting the disclosure of a document or information to another party (the second party), the first party must—

(a) exclude the relevant document or information from any documents that will be provided to the second party; and

(b) provide to the Tribunal the excluded document or information, and the reason for its exclusion, so that the Tribunal may decide whether the document or information should be disclosed to the second party or should be the subject of a direction under paragraph (2).

(4) The Tribunal may give a direction that certain documents or information must or may be disclosed to the Tribunal on the basis that the Tribunal will not disclose such documents or information to other persons, or specified other persons.

(5) A party making an application for a direction under paragraph (4) may withhold the relevant documents or information from other persons, or the specified other persons, until the Tribunal has made a decision on the application.

(6) Unless the Tribunal considers that there is good reason not to do so, the Tribunal must send notice that a party has made an application for a direction under paragraph (4) to each other party.

(7) In a case involving matters relating to national security, the Tribunal must ensure that information is not disclosed contrary to the interests of national security.

(8) The Tribunal must conduct proceedings and record its decision and reasons appropriately so as not to undermine the effect of an order made under paragraph (1), a direction given under paragraph (2) or (4) or the duty imposed by paragraph (7).

I knew that there was going to be one rule that had me stumped, and this is the one. I have never had a service charge case where the need for this rule has arisen and I have waged an unsuccessful war against my imagination in trying to think up real situations where it may arise.

In summary, this rule sets out:

• The Tribunal’s powers to restrict the disclosure or publication of documents and information disclosed in proceedings;
• The test for that order, which comprises two limbs:
  • whether a person will suffer serious harm if the restriction is not imposed, and
  • whether the Tribunal is satisfied that it is proportionate to impose the restriction, have regard to the interests of justice;
  • The Tribunal’s obligation not to prejudice national security, which it must bear in mind not only on considering the application, but also when hearing the proceedings and writing its decision;
  • The procedure for making the application: clearly this rule should be read in conjunction with rule 7, although the provisions of this rule take priority;
  • How far the application and its contents should be disclosed to other parties. The application and documents in question should not be disclosed, but unless there is a good reason, other parties should be notified of the fact of the application having been made.

I will watch the new Tribunal at work and learn.