Rule 22: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169: Withdrawal

(1) Subject to paragraph (2), a party may give notice of the withdrawal of its case, or any part of it—

(a) orally at a hearing; or

(b) by sending or delivering to the Tribunal a written notice of withdrawal.

(2) A written notice of withdrawal must—

(a) be signed and dated;

(b) identify the case or part of the case which is withdrawn;

(c) state whether any part of the case, and if so what, remains to be determined;

(d) confirm that a copy of the notice of the withdrawal has been provided to all other parties, and state the date on which this was done;

(e) include the written consent of any of the other parties who have consented to the withdrawal.

(3) Notice of withdrawal will not take effect unless the Tribunal consents to the withdrawal.

(4) The Tribunal may make such directions or impose such conditions on withdrawal as it considers appropriate.

(5) A party which has withdrawn its case may apply to the Tribunal for the case to be reinstated.

(6) An application under paragraph (5) must be made in writing and be received by the Tribunal within 28 days after—

(a) the date of the hearing at which the case was withdrawn orally under paragraph (1)(a); or

(b) the date on which the Tribunal received the notice under paragraph (1)(b).

(7) The Tribunal must notify each party in writing of a withdrawal under this rule.

(8) Any party may, within 28 days after the date of receipt of notification by the Tribunal under paragraph (7), apply for a case, or part of a case, which has been withdrawn under this rule to be re-instated.

In – out – in … I cannot help thinking that this rule is the hokey-cokey of the new Tribunal’s powers.

All parties involved in the proceedings must be notified of the intention to withdraw, and a case cannot be withdrawn without the Tribunal’s consent. In this respect, withdrawal of an application in the new Property Chamber is akin to discontinuance of a court claim where the court has granted an interim injunction, or a party has given an undertaking to the court.

Presumably both applicant and respondent can give notice of withdrawal. A respondent may thereby be able to save its blushes , and, more practically, its money, if its arguments – or finances – are looking wobbly. And since a withdrawal is not the same as a concession, the Tribunal will still need to make a determination in the absence of the respondent, even if the door at which the applicant will be pushing will probably open more easily without opposition.

Bearing in mind the limitations still circumscribing the Tribunal’s power to make costs orders, an application to withdraw is probably best made orally to save the costs of making a formal written application. This is all the more relevant if there is a risk of a costs order being made under rule 13 against the party withdrawing.

Permission to withdraw an application can be conditional, and the Tribunal’s discretion on the nature of the conditions is wide.

Wide too are the rights to apply for re-instatement. Any party can apply: the entitlement does not belong to the withdrawing party alone. As the Tribunal now has the power to extend time even after the expiry of time limits, evidence which comes to light months later – and was unobtainable at the date of the original proceedings – may justify re-instatement.

There are however three rather strange aspects of the subrules on re-instatement.

Peculiarity 1

An application to re-instate a case must be made within 28 days of the Tribunal receiving the written notice of withdrawal. How does a party know when the Tribunal has received a document if it is posted?

Section 7 of the Interpretation Act 1978 provides:

“Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

Section 7 is however only a deeming provision, and it can be rebutted by evidence of when the letter was in fact received.

Faxes and emails may be the order of the day on a re-instatement application.

Peculiarity 2

If the Tribunal does not give its consent to the withdrawal before the end of the 28 day deadline for making an application for re-instatement, a party wanting to reinstate a case may have to make its application to reinstate  before the withdrawal takes effect.

Peculiarity 3

The Tribunal does not have the same power to impose conditions, whether under this rule or its general case management powers, on a re-instatement application. One handy condition would be the payment of any costs order made against the re-instating party on withdrawal, or payment of the costs of the re-instatement application.

But then, who am I to make that observation? I was one of the posse who raised an eyebrow at the idea of conditional dispensation from the requirement to consult – and then along came Daejan v Benson. I quote Lord Neuberger, but all five of their Lordships were on the same page on this point:

“54 … the LVT … has power to grant a dispensation on such terms as it thinks fit – provided, of course, that any such terms are appropriate in their nature and their effect.

“55. In the absence of clear words precluding the LVT imposing terms, I consider that one would expect it to have power to impose appropriate terms as a condition of exercising its power of dispensation.”