Rule 25: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169: Transfer of case to the Upper Tribunal

(1) The Tribunal may refer a case to the President of the Property Chamber with a request that the case be considered for transfer to the Upper Tribunal.

(2) If a case has been referred under paragraph (1), the President of the Property Chamber may, with the concurrence of the President of the Lands Chamber, direct that the case be transferred to and determined by the Upper Tribunal.

(3) The President of the Property Chamber may only direct a transfer under paragraph (2) if the President of the Property Chamber considers that the issues in dispute are likely to be further appealed to the Upper Tribunal and—

(a) will require lengthy or complex evidence or a lengthy hearing; or

(b) involve a complex or important principle or issue; or

(c) involve a large financial sum.

(4) This rule does not apply to a land registration case or an agricultural land and drainage case.

This is brand new power to leap-frog the Tribunal and hop straight in the Upper Tribunal. Whilst sadly, it does not apply to those in the agricultural drainage and land registration jurisdictions, it is available in leasehold cases.

It should not be confused with the Tribunal’s other power under rule 8 to refer to the Upper Tribunal in connection with a failure to comply with a direction imposed by the Tribunal and listed in rule 8(5). That power relates to the exercise of the Upper Tribunal’s powers under section 25 of Courts Tribunals and Enforcement Act 2007.

The procedure for making the leap into the Upper Tribunal is a little tortuous: the Tribunal must first refer the case to the President of the Property Chamber, currently Siobhan McGrath.

The President of the Property Chamber must then consult with the President of the Upper Tribunal (Lands Chamber), currently the Honourable Mr Justice Lindblom.

If the President of the Upper Tribunal (Lands Chamber) agrees that the case justifies transfer, the President of the Property Chamber (we are back with Siobhan again) can then direct that it be dealt with by the Upper Tribunal (Lands Chamber).

The test for transfer upwards is twofold: the President of the Property Chamber must consider:

• First, that the issues in dispute are likely to be further appealed to the Upper Tribunal, and
• Second, that the issues in the case satisfy one of the conditions in subrule 3:
  • they will require lengthy or complex evidence or a lengthy hearing; or
  • they involve a complex or important principle or issue; or
  • they involve a large financial sum.