Rule 28: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169: Referred and transferred cases

(1) This rule applies where a matter is referred, sent or transferred to the Tribunal by—

(a) a rent officer under paragraph 6 of Schedule 11 to the Rent Act 1977;

(b) the registrar under section 73(7) of the 2002 LR Act;

(c) another tribunal, or

(d) a court.

(2) The requirement to start proceedings in accordance with rule 26(1) does not apply.

(3) Upon receipt of a matter to which this rule relates, the Tribunal must provide to the parties written notice specifying—

(a) the date when the Tribunal received the matter;

(b) the names and any known addresses of the parties to the proceedings; and

(c) in a case referred by the registrar, which party or parties will be the applicant or applicants for the purposes of the proceedings and which party or parties will be the respondent or respondents.

(4) Each party whom the Tribunal directs in accordance with paragraph (3)(c) to act as an applicant for the purposes of the Tribunal proceedings, must send or deliver to the Tribunal a statement of case—

(a) containing any information referred to in rule 26(2) which the Tribunal requires;

(b) stating the applicant’s reasons for supporting or objecting to the original application to the registrar;

(c) accompanied by copies of any documents available to the applicant which—

(i) are important to the applicant’s case; or

(ii) the Tribunal or any other party to the proceedings will require in order properly to understand the applicant’s case.

(5) Where a matter has been transferred by a court, the Tribunal may require any party to provide it with a copy of the court order by which the matter was transferred.

This rule deals with applications with a previous life.

County court claims

It is often the case that a landlord will bring a county court claim for unpaid service charges, because such claims can be dealt with swiftly if the lessee does not respond. Default judgment can be entered without the need for a hearing, and the landlord can then move onto enforcement, often by forfeiture.

The new Tribunal, despite the new rules, still does not have the power to enter default or summary judgment, even if it can now strike out parts of or whole cases.

It will probably therefore still be the case that a reasonable proportion of residential service charge cases in the Tribunal will have taken their first breath in the county court.

The power to transfer cases from the court to the Tribunal

The power to transfer proceedings to the LVT is contained in paragraph 3 of Schedule 12 to the Commonhold and Leasehold Reform Act 2002 (the “2002 Act”). It will remain in place after 01 July 2013 because the LVT will continue to exist in Wales.

The power of courts in England to transfer proceedings or issues to the Tribunal appears in section 176A of the 2002 Act. Section 176A is one of the trio of bright young sections which, together with sections 176B and 176C, form a new mini chapter entitled “Chapter 6A First-tier Tribunal and Upper Tribunal” in the 2002 Act.

Article 144 of Schedule 1 to the Transfer of Tribunal Functions Order 2013/1036 introduces Chapter 6A into the long-suffering 2002 Act. It is squeezed in between Chapters 6 and 7, some seven sections and eleven Schedules away from the court’s power to transfer cases to the LVT. Ask me not why.

Here is the text of section 176A:

Section 176A.— Transfer from court to First-tier Tribunal

(1) Where, in any proceedings before a court, there falls for determination a question which the First-tier Tribunal or the Upper Tribunal would have jurisdiction to determine under an enactment specified in subsection (2) on an appeal or application to the tribunal, the court—

(a) may by order transfer to the First-tier Tribunal so much of the proceedings as relate to the determination of that question;

(b) may then dispose of all or any remaining proceedings pending the determination of that question by the First-tier Tribunal or, where determined by or under Tribunal Procedure Rules, the Upper Tribunal, as it thinks fit.

(2) The enactments specified for the purposes of subsection (1) are—

(a) this Act,

(b) the Leasehold Reform Act 1967,

(c) the Landlord and Tenant Act 1985,

(d) the Landlord and Tenant Act 1987,

(e) the Leasehold Reform, Housing and Urban Development Act 1993, and

(f) the Housing Act 1996.

(3) Where the First-tier Tribunal or the Upper Tribunal has determined the question, the court may give effect to the determination in an order of the court.

(4) Rules of court may prescribe the procedure to be followed in a court in connection with or in consequence of a transfer under this section.

Non-identical twins

The differences between the new section 176A and the paragraph 3 of Schedule 12 to the 2002 Act are minimal. Do not be discouraged by the density of the text below:

• Section 176A is more precise as to the matters which can be transferred to the Tribunal, although both provisions only allow “so much of the proceedings as relate to the determination of a question [within the relevant Tribunal’s jurisdiction]” to be transferred;
• Paragraph 3 of Schedule 12 is pretty laid back: it allows the court to adjourn what is left of the case pending disposal by the LVT, whereas section 176A allows the court to take action and dispose of the remaining proceedings. To a certain extent this seems to be distinction without a difference, since both provisions actually allow the court to do what it thinks fit with its part of the proceedings whilst the relevant Tribunal does its stuff;
• If the court thinks it fit to stay its part of the proceedings, section 176A allows for that stay to remain in place pending disposal by both the Tribunal and the Upper Tribunal, whereas paragraph 3 of Schedule 12 only allows for the court to exercise its powers pending the resolution of the case by the LVT. Again, this may be a distinction without a difference in the light of the court’s general case management powers under CPR rule 3, but it is worth noting in passing;
• Subsections 3 and 4 of section 176A are identical to subparagraphs (2) and (3) of their paragraph 3 cousin, and
• Paragraph 3 contains a provision whereby “procedure regulations may prescribe the procedure to be followed in a leasehold valuation tribunal consequent on a transfer under this paragraph”. No procedure was prescribed in the old rules, and the provision is absent from section 176A.

On to the rule itself

Are you still with me?

I will risk saying that in service charge disputes, of the situations specified in subrule 1, it is likely that only (d) – transfers from court  – will be relevant.

Subrule 2 saves the parties the expense of beginning two claims, as is the case with the LVT: the normal formalities for starting proceedings are dispensed with where a claim is already in existence in a different jurisdiction such as the county court.

Subrule 3 is new. It is a welcome addition because the old rules were silent on what happened after the court directed a transfer to the LVT. The new rules make it clear that the onus is on the Tribunal to write to the parties to the newly transferred proceedings to inform them of a successful landing.

Subrule 4 only applies to land registration cases.

Subrule 5 is however relevant to service charge cases. It seems rather odd that the Tribunal has the power to request a copy of the court order transferring the proceedings, because it does not strike me as outlandish to expect the court doing the transferring to send a copy of the order to the Tribunal as part of the transfer process.