Rule 34: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169: Hearings in a party’s absence

If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal—

(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and

(b) considers that it is in the interests of justice to proceed with the hearing.

This is a pocket-sized rule, but differs in a potentially significant way from the old rule about hearings in a party’s absence.

Whereas old rule 14(8) simply provided that the hearing would go ahead in a party’s absence if the LVT was satisfied that “notice had been given to that party in accordance with the [old rules]”, the new rules introduce a more flexible – and arguably fairer – threefold test:

1. Has the absent party been notified of the hearing?
2. If not, have reasonable steps been taken to notify the absentee?
3. If so, is it in the interests of justice to proceed?

The concept of “reasonable steps” echoes rule 6.9 of the Civil Procedure Rules. I am intrigued that the Tribunal Rules Committee decided to use “reasonable steps” here, but “all diligent enquiries” in rule 16(11), which is the main rule governing service of documents.

The identity of the person required to take the reasonable steps is also unclear. I assume that it is the Tribunal’s responsibility to ensure that notification of the hearing date is sent to the parties, and that a telephone call is made on the day if no one appears.

The “interests of justice” is a difficult creature to pin down. In Cadogan v Morris (1999) 77 P & CR 336, Stuart-Smith LJ observed of the challenges in identifying what was a realistic – as opposed to unrealistic – premium for a new lease: “This seems to me to be an application of the well-known elephant test. It is difficult to describe, but you know it when you see it”. To a certain extent, it might be said that the interests of justice also belong  to the Elephantidae.

In an attempt to describe the indescribable, I think it is correct that it is generally in the interests of justice that litigation should be finite; that issues are not repeatedly litigated; that parties have an opportunity to make representations on matters which affect them; that legal process should not be used as an instrument of manipulation, and that the rule of law be upheld rather than held down.