Rule 52: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169: Application for permission to appeal

(1) A person seeking permission to appeal must make a written application to the Tribunal for permission to appeal.

(2) An application under paragraph (1) must be sent or delivered to the Tribunal so that it is received within 28 days after the latest of the dates that the Tribunal sends to the person making the application—

(a) written reasons for the decision;

(b) notification of amended reasons for, or correction of, the decision following a review; or

(c) notification that an application for the decision to be set aside has been unsuccessful.

(3) The date in paragraph (2)(c) applies only if the application for the decision to be set aside was made within the time stipulated in rule 51 or any extension of that time granted by the Tribunal.

(4) If the person seeking permission to appeal sends or delivers the application to the Tribunal later than the time required by paragraph (2) or by any extension of time under rule 6 (3)(a) (power to extend time)—

(a) the application must include a request for an extension of time and the reason why the application was not received in time; and

(b) unless the Tribunal extends time for the application under rule 6 (3)(a) (power to extend time) the Tribunal must not admit the application.

(5) An application under paragraph (1) must—

(a) identify the decision of the Tribunal to which it relates;

(b) state the grounds of appeal; and

(c) state the result the party making the application is seeking.

As under the old rules, all applications for permission to appeal must be in writing. The requirement to ask the Tribunal for permission before making any application to the Upper Tribunal has not changed either.

Two key elements of the permission to appeal process have however changed:

• The Tribunal’s power to extend time under rule 6 means that the old rule guillotine, under which permission to appeal had to be brought within the requisite period or be automatically refused, is blunted;
• The time limit for receipt by the Tribunal of an application for permission to appeal is now 28 days, as opposed to the 21 days under the old rules. A party unhappy with the decision of the Tribunal now has seven days longer to bring its application for permission to appeal than have parties in court-based appeals. That said, time starts to run before the decision reaches the parties, and expires on receipt by the Tribunal of the application. A day or so of those 28 days will therefore probably be lost at either end  when time spent in the postal system is factored in.

Subrule 3

This one is a puzzle. It applies only to applications for permission to appeal a decision not to set aside a decision on what I have called procedural grounds under rule 51. That rule is unconnected with setting aside after a review.

Subrule 3 requires the Tribunal to look beyond the application for permission to appeal, and to consider the timing of the application to set aside the decision in question.

If the rule 51 application to set aside is not made within the 28 day time limit, or within the extension of time granted by the Tribunal, subrule 3 states that the 28 day time limit in subrule 2(c) does not apply.

Does this then mean that there is no limit to the time within which permission to appeal a decision not to set aside a decision can be made – or does it mean that if the application to set aside is not made within the 28 day time limit (or within any extension of time granted by the Tribunal) permission to appeal cannot be sought? I have a feeling that it is probably the second of these, because there would otherwise be no finality to a decision.

Subrule 4

Section 9 of the Appellant’s notice in the Civil Procedure Rules (form N161) provides space for applications supplemental to the appeal, and subrule 4 serves a similar purpose. It is a handy reminder, when preparing an application for an extension of time, that the reason for seeking the Tribunal’s indulgence must be given.

Subrule 4(b) underlines the importance of including a proper and complete explanation if/when making any request for an extension of time: if the Tribunal decides not to extend time, the application for permission to appeal is like a Eurostar passenger without a passport: it goes nowhere.

It is of course always possible to repeat the application for permission to the Upper Tribunal if refused by the First-tier Tribunal, but I cannot help but think that it is better to have all the ducks lined up neatly from the outset.

Subrule 5

I do not think that I have a future as a parliamentary draftsman: I am not sure why this subrule does not form part of subrule 1 because it sets out the requirements for an application for permission to appeal.

I am further uncertain why the grounds on which permission to appeal can be granted do not appear here either. They did not appear in the old rules. They did not appear in the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010/2600: they are hidden away at paragraph 4.2 of the Practice Directions for the Lands Chamber of the Upper Tribunal:

“4.2. Applications for permission to appeal

“1) Applicants must specify whether their reasons for making the application fall within one or more of the following categories:

“a) The decision shows that the LVT or RPT wrongly interpreted or wrongly applied the relevant law;

“b) The decision shows that the LVT or RPT wrongly applied or misinterpreted or disregarded a relevant principle of valuation or other professional practice;

“c) The LVT or RPT took account of irrelevant considerations, or failed to take account of relevant consideration or evidence, or there was a substantial procedural defect; and/or d) The point or points at issue is or are of potentially wide implication.”

I have no doubt that there is, somewhere, an order amending the references to the LVT and RPT in this paragraph. I will try to track it down, although I suspect that I may become tangled in a web of amending secondary legislation in the process.

Finally, as a change from the old rules, note that a party seeking permission to appeal must state the result sought. This is a new requirement which should help focus the mind – it will help me focus mine – when considering an appeal.