Rule 51: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169: Setting aside a decision which disposes of proceedings

(1) The Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if—

(a) the Tribunal considers that it is in the interests of justice to do so; and

(b) one or more of the conditions in paragraph (2) are satisfied.

(2) The conditions are—

(a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative;

(b) a document relating to the proceedings was not sent to or was not received by the Tribunal at an appropriate time;

(c) a party, or a party’s representative, was not present at a hearing related to the proceedings; or

(d) there has been some other procedural irregularity in the proceedings.

(3) A party applying for a decision, or part of a decision, to be set aside under paragraph (1) must make a written application to the Tribunal so that it is received—

(a) within 28 days after the date on which the Tribunal sent notice of the decision to the party; or

(b) if later, within 28 days after the date on which the Tribunal sent notice of the reasons for the decision to the party.

The Tribunal has the power to set aside a decision – or part of it – as a result of a review, but this is a free-standing separate power to set aside a decision on what are effectively procedural grounds.

A party applying to have a decision set aside on this ground will need to satisfy the Tribunal:

• That the decision in question “disposed of proceedings”. Directions hearings will not fall within this definition: strike outs and hearings of substantive issues will;
• That it is in the interests of justice to set aside the decision (remember the definition of the elephant?), and
• That one of the four conditions in subrule 4 is satisfied. I think that these bear some closer consideration.

(a) and (b) Sending or receipt of a document at an appropriate time

The non-receipt of a document is expressed in the passive voice, which suggests that the identity of the sender is not the major consideration here: the focus is on the date when the document was sent or the time of its receipt.

The tricky word here is “appropriate”. What does that mean? Is “appropriate” measured objectively or subjectively?

If the question is compliance with a direction given by the Tribunal, I suspect that “appropriate” may well mean “at the time specified by the direction”, but it is a word, like “reasonable”, which admits of a range of interpretations.

(c) Absence from a hearing related to the proceedings

On a literal reading of this rule, a party may be present at a hearing, but if the representative is not, an application to set aside the decision can be made.

I am not persuaded that this is in fact what the Tribunal Rules Committee will have had in mind, and that it is more likely to have intended a party to be able to apply to set aside a decision where no one appeared at the relevant hearing.

It is however possible that I am a little too wedded to my Civil Procedure Rules in this respect. CPR r.39.3 allows the court to grant an application to set aside a judgment entered after a trial in circumstances where the applicant did not attend the trial and:

“(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;

“(b) had a good reason for not attending the trial; and

“(c) has a reasonable prospect of success at the trial.”

(d) Procedural irregularity

Examples of procedural irregularity have unfortunately been rather a feature of appeals to the Upper Tribunal recently: Birmingham City Council v Keddie, Hill[2012] UKUT 323 (LC) and Crosspite Ltd v (1) Mahesh Sachdev (2) Seema Sachdev (3) Kamlesh Sachdev [2012] UKUT 321 (LC) are just two such decisions. My own appeal in LB Hackney v Ms Zahra Akhondi [2012] UKUT 439 (LC) is a further illustration.

Time limits

If an application to set aside the judgment is contemplated, do not delay. The rules allow 28 days after the date on which the decision (or reasons, if they are sent later) for a party to apply to set the decision aside. Yes, time limits can be extended, but procrastination is generally unattractive to a Tribunal as an explanation for an application to extend time. I am yet to find a situation for which  procrastination is the solution.