Rule 54: the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013/1169: Stay pending appeal to the Upper Tribunal

(1) A party who wishes to apply to the Tribunal to stay the implementation of the whole or part of a decision pending the outcome of the appeal must make such an application to the Tribunal at the same time as the party applies to the Tribunal for permission to appeal.

(2) The party applying for a stay under paragraph (1) must provide reasons for the application and provide notice of the application to the other parties.

(3) Before reaching a decision to stay implementation of the whole or part of a decision, the Tribunal must allow the parties the opportunity to make representations or objections.

(4) The Tribunal must notify the parties of any decision that the Tribunal makes as to granting a stay of the implementation of the whole or part of the Tribunal’s decision.

(5) In a land registration case, where the Tribunal’s decision to stay implementation of a decision relates to a decision disposing of the proceedings, the Tribunal must provide to the registrar a copy of the notice under paragraph (4).

(6) The notice under paragraph (4) must—

(a) be in writing;

(b) be dated;

(c) specify the decision made by the Tribunal; and

(d) include the Tribunal’s reasons for the decision.

The power to stay proceedings generally is one which the LVT did not have, nor did it have the specific power contained in this rule to order a stay whilst a case is appealed.

Meaning of implementation

The word “implementation” caught my eye and took me back to 2011, when I was preparing for Church Commissioners for England v Koyale Enterprises, Thaleshwar [2012] 2 EGLR 42.

A decision of the Tribunal can constitute a determination of breach of covenant for the purposes of section 81 of the Housing Act 1996 and section 168 of the Commonhold and Leasehold Reform Act 2002.

In discourteously short summary, those two sections require that, before a landlord takes action to forfeit a lease, one of several criteria listed in those sections must have been satisfied before a landlord can serve a notice under section 146 of the Law of Property Act 1925. One of those criteria is that there must have been a determination of breach of covenant.

The question which springs to mind therefore is whether, when serving a section 146 notice, reliance on a Tribunal decision as a determination of breach is “implementation” within the meaning of rule 54.

I will pin my colours to the mast and suggest that it probably would be. If to implement a decision is to use it to achieve an aim, it seems to me arguable (completely without authority, I should add), that a Tribunal determination of breach of covenant is being implemented if relied upon in order to realise an intention to forfeit a lease.

This rule therefore has the potential to confer a very real benefit on a lessee who is faced with an adverse Tribunal decision, is taking action to appeal it, but is in the meantime faced with a landlord intent on exercising a proviso for re-entry.

What is the test for a stay?

This is another rule where the Tribunal would appear to have an unlimited discretion, but I think that some guidance can be drawn from the Civil Procedure Rules. CPR r.52.7 simply provides that:

“Unless—

“(a) the appeal court or the lower court orders otherwise; or

“(b) the appeal is from the Immigration and Asylum Chamber of the Upper Tribunal,

“an appeal shall not operate as a stay of any order or decision of the lower court.”

The courts have been to work on the rule and developed a framework within which to determine an application for a stay pending an appeal.

In Contract Facilities Limited v Estates of Rees (Deceased) & Others [2003] EWCA Civ 465, Waller LJ addressed the circumstances in which the court may grant a stay, and the evidence required to persuade a court that a refusal to grant a stay will stifle the appeal.

On the circumstances for the grant of a stay, he said:

“8 … The normal rule is neatly summarised in paragraph 21 of the judgment in Hammond Suddards’ Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 1915:

“By CPR rule 52.7, unless the appeal court or the lower court orders otherwise, an appeal does not operate as a stay of execution of the orders of the lower court. It follows that the court has a discretion whether or not to grant a stay. Whether the court should exercise its discretion to grant a stay will depend on all the circumstances of the case, but the essential question is whether there is a risk of injustice to one or other or both parties if it grants or refuses a stay. In particular, if a stay is refused what are the risks of the appeal being stifled? If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? On the other hand, if a stay is refused and the appeal succeeds, and the judgment is enforced in the meantime, what are the risks of the appellant being able to recover any monies paid from the respondent?”

On the question of stifling, he continued:

“9. The real question in this case, accordingly, is whether the refusal of a stay would risk stifling the appeal.

“10. On the question as to whether there might be a stifling of the appeal, again a further paragraph of Agrichem is material. That is paragraph 18. All I need to quote from that paragraph is that the court made it clear that where somebody seeks to stay orders what they need to do is:

“… produce cogent evidence that there is a real risk of injustice if enforcement is allowed to take place pending appeal”.

“The court was, of course, recognising in that context, which should be stressed, the principle that it is not just a question whether the actual party to the appeal can raise the money. The question is whether money can be raised from its directors, shareholders, other backers or interested persons. This was made clear, in the context of a security for costs application, by Peter Gibson LJ in Keary Developments v Tarmac Construction [[1995] 2 B.C.L.C. 395].”

More recently, in Department for Environment, Food and Rural Affairs v Georgina Downs [2009] EWCA Civ 257, Sullivan LJ reviewed the circumstances giving rise to the grant of a stay, and said:

“8 … A stay is the exception rather than the rule, solid grounds have to be put forward by the party seeking a stay, and, if such grounds are established, then the court will undertake a balancing exercise weighing the risks of injustice to each side if a stay is or is not granted.

“9 It is fair to say that those reasons are normally of some form of irremediable harm if no stay is granted because, for example, the appellant will be deported to a country where he alleges he will suffer persecution or torture, or because a threatened strike will occur or because some other form of damage will be done which is irremediable. It is unusual to grant a stay to prevent the kind of temporary inconvenience that any appellant is bound to face because he has to live, at least temporarily, with the consequences of an unfavourable judgment which he wishes to challenge in the Court of Appeal.”

Procedure for applying for a stay pending an appeal

The key issue here is that the application must be made at the same time as the application for permission to appeal. The application must contain reasons: it seems to me that the cases above give an outline of the sorts of facts that will sway a Tribunal in an applicant’s favour.

The other parties to the case must be informed of the application, and the Tribunal must allow every to make representations on the question.

Unsurprisingly, once it has made its decision, the Tribunal must write to the parties to inform them of what it has decided, why, and when it made the decision.

Subrule 5 applies only to land registration cases.