Rule 9: The Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013/1169: Striking out a party’s case

(1)   The proceedings or case, or the appropriate part of them, will automatically be struck out if the applicant has failed to comply with a direction that stated that failure by the applicant to comply with the direction by a stated date would lead to the striking out of the proceedings or that part of them.

(2)   The Tribunal must strike out the whole or a part of the proceedings or case if the Tribunal—

(a) does not have jurisdiction in relation to the proceedings or case or that part of them; and

(b) does not exercise any power under rule 6(3)(n)(i) (transfer to another court or tribunal) in relation to the proceedings or case or that part of them.

(3)   The Tribunal may strike out the whole or a part of the proceedings or case if—

(a) the applicant has failed to comply with a direction which stated that failure by the applicant to comply with the direction could lead to the striking out of the proceedings or case or that part of it;

(b) the applicant has failed to co-operate with the Tribunal such that the Tribunal cannot deal with the proceedings fairly and justly;

(c) the proceedings or case are between the same parties and arise out of facts which are similar or substantially the same as those contained in a proceedings or case which has been decided by the Tribunal;

(d) the Tribunal considers the proceedings or case (or a part of them), or the manner in which they are being conducted, to be frivolous or vexatious or otherwise an abuse of the process of the Tribunal; or

(e) the Tribunal considers there is no reasonable prospect of the applicant’s proceedings or case, or part of it, succeeding.

(4)   The Tribunal may not strike out the whole or a part of the proceedings or case under paragraph (2) or paragraph (3)(b) to (e) without first giving the parties an opportunity to make representations in relation to the proposed striking out.

(5)   If the proceedings or case, or part of them, have been struck out under paragraph (1) or (3)(a), the applicant may apply for the proceedings or case, or part of it, to be reinstated.

(6)   An application under paragraph (5) must be made in writing and received by the Tribunal within 28 days after the date on which the Tribunal sent notification of the striking out to that party.

(7)   This rule applies to a respondent as it applies to an applicant except that—

(a) a reference to the striking out of the proceedings or case or part of them is to be read as a reference to the barring of the respondent from taking further part in the proceedings or part of them; and

(b) a reference to an application for the reinstatement of proceedings or case or part of them which have been struck out is to be read as a reference to an application for the lifting of the bar on the respondent from taking further part in the proceedings, or part of them.

(8)   If a respondent has been barred from taking further part in proceedings under this rule and that bar has not been lifted, the Tribunal need not consider any response or other submission made by that respondent, and may summarily determine any or all issues against that respondent.

The first part of this rule deals with when the Tribunal “will”, “must” and “may” strike out proceedings:

• First, the circumstances in which proceedings will be automatically struck out.
• Second, conditions in which the Tribunal must strike out a case.
• Third, situations where the Tribunal has a discretion to strike out.

As I consider the second of these, it strikes me that the new Tribunal has a new power that I overlooked in my reflections on rule 6. Since 30 September 2003, under paragraph 4 of Schedule 12 to the Commonhold and Leasehold Reform Act (stay with me), the court has had the power to transfer to the LVT cases/parts of cases which fell within the LVT’s jurisdiction, but the LVT has not been able to return the compliment. By virtue of the new rule 6(n)(i), from 01 July 2013, the traffic will become two-way. I have updated my observations on rule 6.

Back to rule 9: the difference between subrule (1) and (3)(a) is the difference between “will” and “could”. In (1), the striking out is automatic, presumably after contumelious failures to comply with directions. In (3)(a), the Tribunal has a residual saving discretion not to strike out, and it does not have to give the parties the opportunity to make representations on the point, even though that is an express requirement for strike out under 3(b)-(e).

For every power to strike out without notice however, balance requires that there be an equal power to reinstate, and the new rules provide for the unnotified, struck out party to apply for reinstatement, although there is a time limit for doing so. There is no indication of the test to be applied on such an application: “all the circumstances” and the overriding objective are probably therefore good starting points.

For the record, old rule 11 – the power to strike out for frivolity, vexatious-ness or abuse, is now encapsulated in new subrule (3)(d).

Most of rule 9 applies expressly to applicants. Is the solution therefore to force the other side into making an application so as to be the respondent, thereby avoiding the risk of being struck out? Not a bit of it: respondents are as bound by rule 9 as applicants. The position is clear: under both rule 8 and the latter part of rule 9, respondents can be barred from taking part in applications, just as applicants’ cases can be struck out.

Both sides need to keep their socks pulled up.