Rule 8: The Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013/1169: Failure to comply with rules, practice directions or Tribunal directions

(1)    An irregularity resulting from a failure to comply with any provision of these Rules, a practice direction or a direction does not of itself render void the proceedings or any step taken in the proceedings.

(2)    If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Tribunal may take such action as the Tribunal considers just, which may include—

(a)    waiving the requirement;

(b)   requiring the failure to be remedied;

(c)    exercising its power under rule 9 (striking out a party’s case);

(d)   exercising its power under paragraph (5); or

(e)    barring or restricting a party’s participation in the proceedings.

…

(5)    The Tribunal may refer to the Upper Tribunal, and ask the Upper Tribunal to exercise its power under section 25 of the 2007 Act in relation to, any failure by a person to comply with a requirement imposed by the Tribunal—

(a)    to attend at any place for the purpose of giving evidence;

(b)   otherwise to make themselves available to give evidence;

(c)    to swear an oath in connection with the giving of evidence;

(d)   to give evidence as a witness;

(e)    to produce a document; or

(f)    to facilitate the inspection of a document or any other thing (including any premises).

Subrules three and four of this rule apply only to land registration cases, and so I do not include them here.

This is the first of two rules dealing with miscreants: it is the more general of the two. Rule 9 contains further detail of the circumstances in which and how a Tribunal exercises its power to strike out a party’s case.

Subrules 1, 2 and 5, which apply to service charge disputes, allow the Tribunal to adopt a stepped, and increasingly draconian, approach to chastising the disobedient.

• (1)   allows the Tribunal to be gentle if a party trips up and does not comply with a direction;
• (2)   still allows the Tribunal to evidence its gentility by waiving the requirement breached, but also allows for a certain amount of snarling too;
• (5)   has the potential to deprive the villain of his/her freedom and/or to fine him/her/it.  

Subrules (1) and (2) are reasonably self-explanatory. Subrule 5 broadly equates to old rule 22, but:

• It keeps the sanction for failure to comply in the Tribunal system. Old rule 22 made it an offence to fail to comply with a notice under para 4 of Sched 12 to the 2002 Act (a notice to any party to proceedings before the LVT to give it any information which it may reasonably have required), and
• It is not only enforceable against parties to proceedings, but also against “a person”, which suggests a broader ambit.

What does section 25 of the Tribunals Courts and Enforcement Act 2007 provide? As I noted here it gives (quite sharp) teeth to the Upper Tribunal:

25 Supplementary powers of Upper Tribunal

“(1)   In relation to the matters mentioned in subsection (2), the Upper Tribunal–

“(a)     has, in England and Wales or in Northern Ireland, the same powers, rights, privileges and authority as the High Court, and

“(b)    has, in Scotland, the same powers, rights, privileges and authority as the Court of Session.

“(2)   The matters are–

“(a)    the attendance and examination of witnesses,

“(b)   the production and inspection of documents, and

“(c)    all other matters incidental to the Upper Tribunal’s functions.

“(3)   Subsection (1) shall not be taken–

“(a)    to limit any power to make Tribunal Procedure Rules;

“(b)   to be limited by anything in Tribunal Procedure Rules other than an express limitation.

“(4)   A power, right, privilege or authority conferred in a territory by subsection (1) is available for purposes of proceedings in the Upper Tribunal that take place outside that territory (as well as for purposes of proceedings in the tribunal that take place within that territory).”

I have done a little rummaging into the extent to which section 25 has been applied in other Tribunal jurisdictions. The most recent and relevant case that I came across was MD v Secretary of State for Work and Pensions (Enforcement Reference) [2010] UKUT 202 (AAC), in which, in the Administrative Appeals Chamber, a three judge panel made the following observations about section 25:

“The inclusion in the 2007 Act of provisions conferring on the Upper Tribunal, as a superior court of record, the same powers as the High Court to punish for disobedience to certain types of order was … a necessary and integral part of the new tribunal structure, designed to create a self-contained and effective system of administrative justice…

“The power of referral to the Upper Tribunal which have now been conferred on tribunals in order to aid them in ensuring compliance with their orders may have very serious consequences, including the deprivation of a person’s liberty. In England and Wales a sentence of two years’ imprisonment may be imposed – see section 14 of the Contempt of Court Act 1981… In Nicholls v Nicholls [1997] 1 WLR 314 the Court of Appeal in England and Wales held that the power to rectify procedural defects under the Rules of the Supreme Court … enabled the court to overlook a procedural breach if the irregularity had caused the contemnor no prejudice or injustice. However … the court held that, as committal orders involve the liberty of the subject, it is particularly important that the relevant rules are complied with…”

It may therefore be tempting to ask the Tribunal to make an order under section 25 of the 2007 Act when the other side serves a key document late and after what feels like the umpteenth direction to do so, but it seems to me that it would be worth re-reading the words of the Upper Tribunal in MD before committing (no pun intended) time and money to such an application.