Rule 31: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169: Decision with or without a hearing
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(1) Subject to the remainder of this rule, the Tribunal must hold a hearing before making a decision which disposes of proceedings.
(2) The Tribunal need not hold a hearing if consent to proceeding without a hearing has been given by—
(a) each party; and
(b) each other person who has been sent a notification as being entitled, invited or permitted to attend the hearing.
(3) For the purposes of paragraph (2) a party or other person shall be taken to have consented if—
(a) the Tribunal has given that party or other p1erson not less than 28 days’ notice of its intention to dispose of the proceedings without a hearing, and
(b) no objection has been received from that party or other person within that time, except that the Tribunal may regard such a party or other person as having consented upon shorter notice in urgent or exceptional circumstances.
(4) The Tribunal may in any event dispose of proceedings without a hearing under rule 9 (striking out a party’s case) or under rule 39(4) (implementation of court order in land registration cases).
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This rule is the new version of old rule 13. It differs from the old rule in that it empowers the Tribunal to give the parties a set time frame within which to consent or to dispute the determination of an application without a hearing. The old rule permitted the parties to make a request to the Tribunal to be heard “at any time before the application is determined”.
Subrule 1
This rule appears to create a presumption in favour of a hearing, but, taken as a whole, I think that its effect is to underline that the decision about whether there should be a hearing is not for the parties alone to take. The Tribunal can also form a view about the need for a hearing and consult the parties if it considers that a hearing is not needed.
Subrules 2 & 3
By virtue of subrules 2 and 3, and contrary to the normal rules for the formation of a contract, silence does constitute consent to notification by the Tribunal of its intention to dispose of the proceedings without a hearing.
In this respect, there are two points.
- Nessy-like, the knotty question of calculating time resurfaces. Does “not less than 28 days” mean clear days or twenty-four hour segments?
- Despite its general case management power to extend or shorten time limits under rule 6, the Tribunal has the express power to shorten the twenty eight day notice period. Therefore, if Phillips v Francis is not reversed by the Court of Appeal, the landlord will be able to make an application for dispensation from the requirement to consult and pray in aid this rule in seeking an expeditious disposal of that application, providing of course that the lessee and any other relevant party or person does not object.
Subrule 4
I wonder whether the reference to rule 9 in subrule 4 was intended to be a reference specifically to rule 9(1), which sets out the circumstances in which a party’s case will be automatically struck out.
On the other hand, perhaps the Tribunal Rules Committee has adopted a belt and braces approach to the phrase “a decision which disposes of proceedings”, emphasising that “disposal” means the end of proceedings in the Tribunal – subject to any application to reinstate a struck-out case and/or the new rules on reviews and appeals – however achieved.
