[2023] UKUT 247 (LC)

The FTT’s power to bar a respondent from participating in proceedings is contained in rule 8 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. Before considering that rule it is first relevant to refer to rule 3. Whenever the FTT exercises any power conferred by the 2013 Rules, or interprets those Rules, it is required by rule 3(3) to seek to give effect to its own overriding objective.

That overriding objective is stated in rule 3(1) as being to enable the FTT “to deal with cases fairly and justly”. What it means to deal with a case fairly and justly is amplified by rule 3(2) and includes –

“(a)

dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;

(b)

avoiding unnecessary formality and seeking flexibility in the proceedings;

(c)

ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d)

using any special expertise of the Tribunal effectively; and

(e)

avoiding delay, so far as compatible with the proper consideration of the issues.”

Rule 3(4) then requires that parties must help the FTT to further the overriding objective, and generally must cooperate with it.

Rule 6 of the FTT’s Rules lays down the general principle that the FTT may regulate its own procedure. In view of the various aspects of dealing fairly and justly with cases identified in rule 3(2) it is to be expected that the FTT will use this power of self-regulation flexibly and without unnecessary formality, and with a view to ensuring so far as practicable that all parties are able to participate fully in the proceedings.

Rule 3(2)(b) itself recognises that enabling full participation by all parties is not an absolute requirement but is an objective to be achieved “so far as practicable”. It will sometimes be necessary to settle for something less than full participation where a party has itself failed to cooperate in the achievement of the overriding objective. That possibility is dealt with by rules 8 and 9.

Rule 8(1) lays down an important principle. It states that “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”. Rule 8(2) then gives the FTT a menu of possible responses to a failure to comply with the Rules, a practice direction or a procedural direction. The first is to waive the requirement – not every default requires a sanction. The second is to require the failure to be remedied. The third is to exercise the power under rule 9 to strike out the party’s case, in whole or in part; if that sanction is imposed the party concerned is entitled to apply within 28 days for the proceedings, or the part struck out, to be reinstated (rule 9(5)-(6)). The fourth is a power to ask this Tribunal to compel compliance with the direction. And the fifth and final response is “barring or restricting a party’s participation in the proceedings”.

The consequence of barring a party from participation in the proceedings is dealt with by rule 9(8), which says this:

“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 reference in this rule to a “bar that has not been lifted” recognises that the FTT has power to give directions in relation to the conduct or disposal of proceedings at any time, including the power to give a direction amending, suspending or setting aside an earlier direction (rule 6(2)). Although the Rules do not use the language of “sanctions” or “relief from sanctions”, there is no doubt that the FTT has all the procedural tools it requires either to punish or to forgive transgressions, as it seeks to achieve its overriding objective.