Rule 23: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169: Lead cases

(1) This rule applies if—

(a) two or more cases have been started before the Tribunal;

(b) in each such case the Tribunal has not made a decision disposing of the proceedings; and

(c) the cases give rise to common or related issues.

(2) The Tribunal may direct that one or more such cases be specified as a lead case, and stay the other cases (“the related cases”).

(3) The Tribunal must send a copy of any direction given under paragraph (2) to each party in a lead case and in the related cases.

(4) A party in a related case referred to in paragraph (3) may apply for the related case to be substituted as the lead case (or added as a lead case) within 28 days after the date of receipt of notification from the Tribunal of a direction made under paragraph (2).

(5) Where the Tribunal makes a decision in a lead case or cases in respect of the common or related issues—

(a) the Tribunal must send a copy of the decision to each party in each of the related cases; and

(b) subject to paragraph (6), the decision will be binding on each of those parties in relation to the common or related issues.

(6) Within 28 days after the date on which the Tribunal sent a copy of the decision to a party under paragraph (5)(a), that party may apply in writing for a direction that the decision is not binding on the parties to a particular related case.

(7) The Tribunal must give directions in respect of cases which are stayed under paragraph (2), providing for the disposal of or further directions in those cases.

(8) If a lead case is withdrawn before the Tribunal makes a decision in respect of the common or related issues, the Tribunal must give directions as to—

(a) whether another case or other cases are to be specified as a lead case or lead cases; and

(b) whether any direction affecting the related cases should be set aside or amended.

Rules 23 and 24 bring together old rules 8-10 on representative applications. Like old rules 8-10, the new ones do not consolidate cases, but provide for a one-case-to-rule-them-all scenario. To my mind they do however treat the parties-in-waiting more considerately than before.

Rule 23 deals with cases sharing common or related issues where the Tribunal has not made a determination of the first case at the date of commencement of the second or subsequent cases.

Rule 24 applies to cases started after the Tribunal has made its determination.

Representative applications are now known as lead cases. Cases dependent on the determination of the common and related issues of the lead case are related cases.

Structure of the Rule

Subrule 1 describes the situations to which the rule applies.

Subrules 2, 3 and 7 contain the mechanism for setting up a lead case, and explains how the Tribunal is to manage lead and related cases before a decision.

Subrule 4 allows for a party to a related case to apply to become or join the lead case.

Subrules 5 and 6 govern the determination of a lead case, and its effect on related cases.

Subrule 8 addresses the effect on related cases of the withdrawal of a lead case.

Subrule 1: application of rule 23 

Three conditions must be satisfied for rule 23 to apply:

• Two or more cases must have been started before the Tribunal. Old rule 8 referred to situations where it appeared to the LVT that “numerous” applications had been made. All the anguish and frustration of the parliamentary draftsman is expressed in that one word: I can almost hear the despairing scratch of the quill on parchment. “Numerous” has now been replaced by “two or more”;
• There has not been a determination disposing of the proceedings. Presumably therefore the resolution of a preliminary issue does not count, if that determination has not disposed of the case, and
• The cases give rise to common or related issues: under both old and new rules, this is really the key to bringing cases together.

Subrules 2, 3 and 7: the mechanism and case management

Under the old rules, related cases were rather left in the lurch. Parties to related cases now know that their cases are likely to be stayed pending the resolution of the lead case.

It is mercy to see that subrule 3 requires the Tribunal to inform a party to a related case that the case is being stayed.

What strikes me however is that there is no requirement under this subrule, or any other, to inform the related case parties of the common or related issues which have triggered the exercise of the Tribunal’s power under this rule, or to explain that the consequences of being a related case is that the Tribunal’s determination of the common matters in the lead case will bind the parties in the related case. This was a feature of the old rules, and it is a shame that it is missing from the new.

I have a feeling that subrule 7, which obliges the Tribunal to give directions in any related stayed cases, is intended to apply only after determination of the common or related issues in the lead case. Logic and its position in the rule dictate that, as it applies to cases which have been stayed, that must be the case.

Subrule 4: applications to become the lead case

The mind boggles at the number of applications which might be made in the larger, more acrimonious disputes as to which case should be the lead case.

However, subrule 4 sneaks in an interesting twist on the lead case, by allowing that a related case can be added, rather than substituted, as a lead case.

I imagine that the benefit of this is to allow the Tribunal to nominate several lead cases in circumstances where there are several sets of overlapping issues, and not all of those sets are common to one case. I feel a Venn diagram coming on.

It also allows for for late-comers to the lead case process to take – or join – the lead.

Subrules 5 and 6: effect of the determination of the lead case on related cases

These are the key provisions on the outcome of lead and related cases.

It is a relief to see that the Tribunal must send a copy of the lead case(s) determination to all parties in the related cases, since that determination is also the determination of the common or related issues in the related cases.

The effect of the determination of a lead case in the new rules is to all intents and purposes the same as the determination of a representative case in the old rules, albeit that the new rules are now clearer – subrule 5 is clear the related case will be bound by the determination of the lead case. In the old rules, the tribunal’s decision on common matters in the representative application “applied” to the all other parties.

The main innovation in subrule 6 however is that the parties can wait for the Tribunal to makes its decision before deciding whether to agree to be bound by it.

This is a significant change: old rule 9 required the parties to pin their colours to the mast by objecting – on any ground – to being bound by LVT’s determination of the representative case before that determination was made.

As with the old rules, there is no requirement that specific criteria must be met when applying for a direction that the determination does not bind the parties to a related case.

Subrule 8: withdrawal of a lead case

The withdrawal of a lead case may have two consequences:

• It may leave related cases rather headless: this subrule therefore provides for the promotion (although I wonder whether that is truly the way to describe it) of a related case to lead case status;
• It may however remove the need for the lead case procedure altogether. A lead case may be the pin which holds any number of related cases. If that pin is removed, there may be nothing to keep the related cases together, and this subrule allows for that eventuality.