Rule 18: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169: Disclosure, evidence and submissions

(1)   Without restriction on the general powers in rule 6(1) and (2) (case management powers), the Tribunal may give directions as to—

(a) the exchange between parties of lists of documents which are relevant to the application, or relevant to particular issues, and the inspection of such documents;

(b) the provision by parties of statements of agreed matters;

(c) issues on which it requires evidence or submissions;

(d) the nature of the evidence or submissions it requires;

(e) whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence;

(f) any limit on the number of witnesses whose evidence a party may put forward, whether in relation to a particular issue or generally;

(g) the manner in which any evidence or submissions are to be provided, which may include a direction for them to be given—

(i) orally at a hearing; or

(ii) by written submissions or witness statement; and

(h) the time at which any evidence or submissions are to be provided.

(2) Instead of giving directions under paragraph (1)(a), the Tribunal may provide for the disclosure and inspection of documents to any extent which it considers relevant to the issues in dispute, including—

(a) taking all reasonable steps to ensure that each of the parties is given a copy of any document which has been received from any other party or former party; or

(b) supplying the parties with a copy of any document which embodies the results of any relevant enquiries made by or for the Tribunal for the purposes of the proceedings.

(3) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed except where—

(a) the document has been read to or by the Tribunal, or referred to, at a hearing which has been held in public;

(b) the Tribunal gives permission; or

(c) the party who disclosed the document and the person to whom the document belongs agree.

(4) The Tribunal may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the Tribunal, or referred to, at a hearing which has been held in public.

(5) An application for such an order may be made—

(a) by a party; or

(b) by any person to whom the document belongs.

(6) The Tribunal may—

(a) admit evidence whether or not it—

(i) would be admissible in a civil trial in England and Wales; or

(ii) was available to a previous decision maker; or

(b) exclude evidence that would otherwise be admissible where—

(i) the evidence was not provided within the time allowed by a direction or a practice direction;

(ii) the evidence was otherwise provided in a manner that did not comply with a direction or a practice direction; or

(iii) it would otherwise be unfair to admit the evidence.

(7) The Tribunal may consent to a witness giving, or require any witness to give, evidence on oath, and may administer an oath for that purpose.

(8) A party cannot be directed to produce any document which a party could not be compelled to produce on the trial of an action in a court of law.

(9) On receipt of written notice from the Tribunal of an application under the 1991 Act, the Secretary of State must provide the Tribunal with a report on the matters to which the application relates.

Another quite lengthy rule on disclosure and evidence. Whereas rule 16 contained the “how” of disclosure, this rule sets out the “what”.

Structure of the rule

(1) and (8) Case management of disclosure, evidence and submissions;

(2) Old rule 16 with a tweak or two

(3) – (5): use of documents disclosed in other proceedings

(6) Admissibility of evidence

(7) Evidence given on oath

Subrule 9 contains the Secretary of State’s reporting obligations on an application under the Land Drainage Act 1991 – and is not therefore relevant to residential service charges.

Subrules 1 and 8: Case management of disclosure, evidence and submissions

The new rules allow the Tribunal to take a firm grasp of the nettle. Whereas the case management rules in rule 3 confer general powers on the Tribunal, subrule 1 here is a useful checklist to run through at a directions hearing.

There are two reasons why I am glad to see the power to provide a list of documents to other parties.

First, the rather general current direction from the LVT that the parties disclose the documents upon which they rely is, to my mind, unclear as to whether disclosure must take place at the time of serving the statement of case, or whether only documents referred to in the statement of case should be disclosed, with the remainder waiting until witness statements are exchanged.

Second, disclosure lists promote proportionality. Many documents are common to the parties. Therefore copies do not need to be exchanged and some documents, for example emails in strings of correspondence, can be difficult to track down in a sheaf of documents accompanying the statement of case.

The power to direct statements of agreed issues will also give the Tribunal some control over cases where everything including the time of day appears to be in issue. It could be said that there is an element of kidology in a subrule which gives the Tribunal the power to direct the provision of statements of agreed, as opposed to non-agreed, matters.

Expert evidence is dealt with in summary fashion in this rule: rule 19 contains more detail on the whys and wherefores of experts.

“Compel” in subrule 8 seems to me to be a little on the strong side, but I imagine that this subrule is intended to incorporate into proceedings the normal exclusions to disclosure, which are, on the whole:

• Without prejudice documents;
• Documents subject to legal professional privilege.

What about documents given to a party in confidence by someone else?

In Alfred Crompton Amusement Machines Ltd v Commrs. of Customs and Excise (No.2) [1974] A.C. 405, Lord Cross of Chelsea said, at 429C-D:

“It is clear that in general a party cannot object to produce a document not covered by legal professional privilege because the information contained in it was imparted to him in confidence. In Chantrey Martin & Co v Martin [1953] 2 QB 286, 294 the Court of Appeal approved the statement of the general principle in Bray on Discovery (1885), p. 206 which runs as follows:

“the mere fact that the giving of the discovery will involve a breach of confidence as against some third person or in any way affect or prejudice his interests does not constitute of itself an independent objection to giving the discovery, a disclosure under the compulsion of the court being for this purpose distinguished from a voluntary disclosure out of court.”

At 433H-434A, he continued:

“Confidentiality” is not a separate head of privilege, but it may be a very material consideration to bear in mind when privilege is claimed on the ground of public interest. What the court has to do is to weigh on the one hand the considerations which suggest that it is in the public interest that the documents in question should be disclosed and on the other hand those which suggest that it is in the public interest that they should not be disclosed and to balance one against the other.”

Subrule 2: Old rule 16 with a tweak or two

This is a subrule which the Tribunal can invoke instead of directing disclosure lists and inspection of documents on those lists.

It differs from the old rule in that it includes disclosure of documents which have been received from any former party.

The use of the passive voice in subrule 2(a), which was also present in old rule 16, suggests that the Tribunal has independent powers of disclosure of its own, as well as the power to direct parties to disclose documents to each other where those documents have been received by the Tribunal.

The old subrule empowering the Tribunal to provide the parties with copies of documents embodying the result of any relevant enquiries made by or for the Tribunal for the purposes of the proceedings remains in place.

Subrule 3–5: use of documents outside the proceedings in question

These three subrules supplement rule 17 (that was the one which had me baffled).

The default position in the Tribunal is that documents disclosed in one set of proceedings cannot be re-used in other proceedings unless one of the conditions in subrule 3 are satisfied:

a) The document which a party wishes to re-use has been read to or by the Tribunal;

b) The document which a party wishes to re-use has been referred to at a public hearing. By virtue of rule 33, all hearings must be held in public unless the Tribunal directs otherwise;

c) The Tribunal grants permission for its use, or

d) The party/parties to whom the document belongs have consented to its re-use.

It being rather difficult to know whether a Tribunal has read a document, in any case where a party wishes to use a document in proceedings other than those in which it was disclosed, it strikes me that it would be sensible to make an application for permission so as to be confident that re-use will not offend the rules.

Subrule 4 is effectively a pre-emptive rule, because it applies to documents disclosed in proceedings. It allows the Tribunal to control the use of a document outside the proceedings, even if those proceedings are ongoing. I assume that the Tribunal Procedure Committee had in mind a degree of control over documents which may find their way into the public domain.

Subrule 5 identifies the persons who may apply for such an order.

Oddly, bearing in mind the stringent test of significant harm under rule 16, there are no criteria for the Tribunal to consider in determining whether to make such an order, which will therefore be subject to the Tribunal’s discretion. This of itself is not a problem, but it means that it will be difficult to predict the outcome of these applications, especially in the early days of the Tribunal’s life.

Subrule 6: Admissibility of evidence

The evidence which can be put before the Tribunal is pretty much unlimited: it matters not whether a court would admit it.

The reference to a “previous decision maker” is not relevant to service charge disputes: it is a reference to decisions from which the Tribunal is the body to which an appeal is brought.

The Tribunal has more limited powers to exclude evidence than it has to include it. Three situations are envisaged in subrule 6, including circumstances in which it would be “unfair to admit the evidence”, which could be said to be a test as wide as a piece of string is long.

Bear in mind that the Tribunal also has other general powers to limit evidence: see, for example:

• its general case management powers in rule 3, and
• its specific powers to control evidence in subrule 1 above.

Subrule 7: Evidence given on oath

Some service charge disputes find themselves in court rather than before the LVT because serious allegations of fraud or dishonesty need to be determined. In those cases, it has I think been generally accepted that the formality of a court trial is more appropriate than the more informal setting of the LVT.

I understand that the Tribunal’s new powers to take evidence on oath are more relevant to proceedings before the old Adjudicator to HM Land Registry (“old” as in “former”, rather than “old” as in “aged”). At a meeting I attended recently, Siobhan McGrath, the soon-to-be President of the First-tier Tribunal, explained that since evidence in land registration cases is taken on oath, the hearing rooms which will be primarily used by that jurisdiction are being altered to bear a closer resemblance to a court room than one of the old LVT hearing rooms.

Leasehold cases are not however excluded from subrule 7, and it seems to me that the power to hear evidence on oath in such cases is useful and has the potential to invest the Tribunal with greater oomph than was enjoyed by the LVT.